Constitutional Crises and Cierco

Featured

Jun 12

What is a constitutional crisis? The phrase has of late become ubiquitous in political parlance but what is meant by such alarms is vague. The only thing that seems certain about the phrase is that no one is certain what it means, but two things are conspicuous.

It seems that “constitutional crisis” is too often partisan name-calling. President Trump commits a constitutional crisis twice a day, but when President Biden was incapable of governing, and his mental state was hidden by those around him, there were no alarms of a “constitutional crisis”; Section 4 of the 25th Amendment was never invoked. If it had been, the Vice President and a simple majority of the cabinet would have required that the president be replaced by his VP. The 25th was passed in part because of Woodrow Wilson’s stroke on October 2, 1919, and the ensuing uncertainty about who was in charge. In 2011, President Obama, frustrated by a Congress not passing policies he favored, declared, “We can’t wait for Congress.” He added, “If they don’t do their job, we will.”

Equally disconcerting is the absence of any meaningful definition of a “constitutional crisis.” A prominent professor of law explains, “It’s a constitutional crisis when the president of the United States doesn’t care what the Constitution says regardless whether Congress or the courts resist a particular unconstitutional action.” She then adds, “Up until now, while presidents might engage in particular acts that were unconstitutional, I never had the sense that there was a president for whom the Constitution was essentially meaningless.”

This assertion requires a kind of psychological assessment to which only the professor may have access: did the president care about the Constitution or did he not care? What were his constitutional feelings? And exactly what is the “sense” of an expert? How is such a sense cultivated? How do you do you know when you have it?

One must ask if someone needs a law degree to make such claims or if a bachelor’s degree will suffice?

Perhaps it will help to consult the American Founders’ favorite Roman, Cicero, whom they admired immensely. Their admiration has to do with, among other things, Cicero’s dual role as a statesman and a philosopher. They also admired his emphasis on the nature of a constitution, which Cicero thought should take the best features of a monarchy, an aristocracy, and a democracy—a “mixed” constitution. Such a strategy has the double advantage of avoiding the worst of all three forms of government and choosing the best elements of each. Accordingly, the U.S. Constitution has all three components: a chief executive (monarchy), a Senate and Supreme Court (aristocracy), and the House of Representatives (democracy). Cicero further thought the constitution that governed Rome to be “excellent,” though in need of occasional reform.

Cicero’s Republic and Laws

Cicero is best known for De re publica (The Republic) and De Legibus (The Laws). He unapologetically chose his titles and his genre—Socratic dialogue—from Plato’s Republic and Laws, works he deeply admired. Although Cicero is more than able to address the technicalities of constitutionalism, he spends far more time discussing the principles that must underlie a constitution, and the character of those who are so governed. As offensive to the Constitution as a crisis may be, what seems most critical to Cicero is something deeper. Following his wisdom, the source of our present constitution name-calling may have more to do with waning moral principles. Thus, the way forward is more difficult than resolving questions of jurisprudence—as serious as those issues may be.

Cicero begins The Republic with a focus on patriotism and the array of civic virtues without which he asserts, good government is impossible. Proper civic education, moreover, is essential because it fosters personal character and the “custom” or “manners” of a society. Where virtue and manners are inadequate, the law can serve as a backstop to insure moral behavior. Cicero asks rhetorically, “From whence comes piety, or from whom has religion been derived? Whence comes justice faith, and equity? Whence modesty, continence?” He further asks how citizens might achieve a “sense of shame,” and “the desire of praise” for good deeds? His questions imply that all of these elements of good governance cannot be supplied by a constitution alone, no matter how well-written it may be.

Patriotism means that the pursuit of “private” interest should be undertaken only if there is time and energy left from the pursuit of “the public interest.” The “virtuous brave, and magnanimous man” must insure that the Commonwealth” is not “torn to pieces by worthless men.” These admonitions seem to fly in the face of men and women serving in public office only long enough to secure multi-million-dollar contracts for tell-all memoirs.

What is ideally needed in leadership are those who are “skillful in theory” but just as importantly, men and women “of action.” In this Cicero undoubtedly has Plato’s “Philosopher King” in mind. Patriotism also means a deep respect for tradition, when he writes that “by far the best condition of government is that which our ancestors have handed down to us.” It is not enough, however, to only inherit the mechanisms of government; it is equally essential to maintain “the force of hereditary manners.” That, he suggests, helps explain the success of the Roman Republic.

Eternal Justice and Law

In Book III of The Republic, Cicero discusses the nature of justice: “True law is right reason conformable to nature, universal, unchangeable, eternal, whose commands urge us to duty and whose prohibitions restrain us from evil.” “Justice,” he adds, may at times be at variance with “utility”—the right thing may not always be the useful thing. Justice may bring adverse consequences for the individual as well as for the commonwealth. Nonetheless, “honesty is the best policy in all states and commonwealths,” essential in “public affairs, no less than in private.”

Cicero is uncompromising in his call for personal integrity making his point with an unsettling metaphor. He asserts that if one had to choose, it would be better to be a beast with the mind of a man since “much more wretched is it to have the mind of a beast in the form of a man.”

Law, whether it be constitutional or statutory must be grounded in something deeper than manmade positive law.

It has been the decision of the wisest philosophers; that law, was neither excogitated by the genius of men, nor is it any thing discovered in the progress of society; but a certain eternal principle, which governs the entire universe; wisely commanding what is right, and prohibiting what is wrong. Therefore, that aboriginal and supreme law is the Spirit of God himself; enjoining virtue, and restraining vice.

“Scipio’s Dream”

Cicero ends The Republic with the celebrated “Scipio’s Dream,” a dream, real or fictional, of the Roman General Scipio Aemilianus. A fifteen year-old Mozart composed a one-act opera based on the story in 1771. Raphael’s early 16th century painting, “The Dream of a Knight” is alternately called “Scipio’s Dream” and it may have been inspired by Cicero’s story.

Back in Book III of The Republic, Cicero anticipates what he develops in “Scipio’s Dream;” namely, the idea that true virtue endures beyond the time in which one lives. Cicero asks rhetorically, when a man is inspired by virtue, “What bribes can you offer him, what treasures, what thrones, what empires?” Such an individual, Cicero continues, “considers these but mortal goods” and considers his virtue a step toward the “divine.”

The dream begins as Scipio Aemilianus arrives in Carthage, and is there greeted by his dead grandfather Scipio Africanus, the hero of the Second Punic War, when Rome defeated its long-standing nemesis, Hannibal of Carthage. Scipio is frightened, but his grandfather consoles him, saying “Take courage, my Scipio; be not afraid, and carefully remember what I shall say to you.” After Africanus reviews the great triumphs which led to his renown, he explains to his grandson that those who have been noble in the service of their country, contributing to its “preservation” and “defense,” will find “a certain place in heaven where they shall enjoy an eternity of happiness.” This is because there is nothing “more agreeable to God, the Supreme Governor of the universe, than countries “united by laws” and benevolent leaders.

Moreover, Scipio Africanus explains, “Men are likewise endowed with a soul and unless the One “who gave you a soul” should explicitly command it, no one should “desert his assigned post.” Scipio Africanus’ parting exhortation to Scipio is to pay strict regard to public and personal justice. He advises, if you to return to this place “where great and good men enjoy all that their souls can wish for” you must recognize that “human glory” only endures for a short time.

In a time in which too many people act as if politics is a religion, “Scipio’s Dream” reminds us that there is life beyond politics. Too many, moreover, seem to go through political life as if they have no soul. Without discounting the seriousness of potential constitutional crises, Cicero warns us that ignorance of the human soul and its eternal fate is the greatest tragedy of all.