Archive for November, 2010

Executive Power: Post-Obama Protector of Rights, Religion, Culture, and the Constitution in America?

November 3, 2010 Leave a comment

Neither Left nor Right but Catholic


By Stephen M. Krason

With Barack Obama in the presidency, not many defenders of traditional culture, sound morality, and the American constitutional tradition want to hear about the exertion of strong—and certainly not extraordinary—presidential or executive power. This is a mistake. It may become the most reliable way after Obama to protect individual and family liberties, religious freedom, and even the integrity of the Constitution.

I made this argument in considerable detail in my 1995 article in The Wanderer entitled “The New Recourse to Executive Power: Weapon of the Culture Wars” as I looked ahead to the 1996 presidential election. As the ruling liberalism has grown more aggressive, intolerant of dissent, and dismissive of traditional constitutional norms in pursuing its agenda, the need for strong executive power may be even more crucial in the post-Obama period than it was in the 1990’s.

John Eastman, Director of the Center for Constitutional Jurisprudence of the Claremont Institute, explained in a lecture at Franciscan University of Steubenville in late October 2010 just how high the stakes are. He talked about how the “terms of peace” set down on the abortion issue in the 1970’s and 1980’s are now repudiated by an increasingly repression-inclined left in the current same-sex “marriage” debate.

As long as abortion would be legal, the left grudgingly accepted the unwillingness of the federal government to pay for abortions (the Hyde Amendment) and conscience-protection for Catholic and other religious hospitals and medical personnel who would not perform them. With same-sex “marriage” and homosexual issues in general we see no such tolerance, as we have witnessed state human rights commissions, etc. going after the Boy Scouts for barring openly homosexual leaders, photography and printing businesses for not lending their services to same-sex “weddings,” and physicians who won’t perform reproductive procedures for same-sex couples. The Catholic Church in Massachusetts has already had to get out of the adoption business for refusing to place children with homosexual couples, and Eastman said that we should soon expect such things as attempts to force churches that rent out their social halls to make them available for same-sex “weddings.” What’s more, the left is now reading its new intolerance back into the abortion issue as it attacks conscience protections.

The courts sometimes protect upright citizens from such harassment, but often help the secular left to impose its agenda. Among the most recent examples are the federal judges in California who declared the state’s Proposition 8 against same-sex “marriage” and the Congressional “don’t ask, don’t tell” policy about homosexuals in the military unconstitutional. The first case concerns a challenge to a fundamental principle of the American Founding, popular sovereignty (while that should give way when a genuine natural right is threatened, no one can say that same-sex “marriage” qualifies). The second undermines another principle, separation of powers; it also threatens national security. The U.S. Supreme Court may overturn these decisions, but it may not. If not, besides these principles such central constitutional rights as religious liberty, free speech, and free association will be weakened as an almost certain wave of repression against dissenters—institutional and individual—can be expected. Open homosexuals in the military will likely mean weakened discipline and substantial departures from the ranks and thus serious implications for national security.

Under such circumstances, the only reasonable solution may be an extraordinary exertion of presidential power: refusing to enforce the Court’s decisions—in the manner of Andrew Jackson in the Cherokee Indian Case in the 1830’s—and, more, aggressively interposing federal executive power to protect citizen liberties and the integrity of the Constitution from the homosexualist juggernaut and the secular leftist agenda generally. These are things that only an executive can do.

Indeed, vigorous presidential power is now needed to reverse the direction of the executive branch itself. I conclude in my forthcoming book The Transformation of the American Democratic Republic that the U.S. has changed from the political order established by the Founding Fathers into an increasingly centralized administrative state.

Paradoxically, then, sweeping presidential power may be needed to restrain the rest of the executive branch and restore separation of powers and checks and balances.

There is historical precedent for this. Solon was given absolute power to correct the social turmoil and political conflicts that wracked ancient Athens. Cincinnatus was made dictator to defeat the enemies of the early Roman Republic. Lincoln used extraordinary executive power to save the American Republic. Despotism did not result because these were men of virtue who embraced the principle of self-limited power.

To oppose Obama in 2012, we should look for a candidate of the same high moral character and courage who is intent on using his office for constitutional and cultural restoration.

Stephen M. Krason is Professor of Political Science and Legal Studies at Franciscan University of Steubenville and Co-Founder and President of the Society of Catholic Social Scientists.