I had to laugh – if in horror – at Eugene Volokh’s “final thoughts” (in reality, a defense) for his proposal to rid the U.S. Constitution of part of Article II, Section I. The passage sets forth the qualifications for President to include, among other things, being a natural born citizen:
- Anomalous Article II: If you were running a public company in the United States today, would you limit the CEO position to natural-born citizens? Be honest. Consider, too, whether POTUS is so distinct as to merit different treatment not only from how an American public company would define CEO eligibility but also from how the U.S. Constitution defines eligibility to be a federal lawmaker or life-tenured federal judge.
Note the use of the Be honest intercession – this elides the central question by quickly pushing beyond it. That question? Why consider this analogy? As we discussed at some length on this blog, there are fundamental differences between the various sectors of society. Here we run across one which I haven’t discussed, which has to do with the fundamental loyalties of humans.
Eugene is talking about two distinct categories of entities in his proposal: nations and corporations. Let’s briefly look at each from a historical perspective with respect to the loyalties we expect from them and their motivations.
Nations: A nation is an extension, through several steps, of the primeval family unit. I use the word primeval not for rhetorical effect, but because it is an instinctual behavior of the normal human being to have a fundamental loyalty to that unit; an instinct no doubt fostered by the relative safety offered by the family unit[1]. Since those prehistoric days, we have discovered that, by expanding our “loyalty circle”, we enhance our safety. This is not an unlimited, linear progression, of course. As one circle impacts another and competes with limited resources, individual safety may be impacted.
But, skipping over that complex subject, we progress from family to villages to towns, cities, regions, and on to Nations. Interestingly, those intervening steps do not always retain loyalties. Some folks never move away from their villages or towns, but as Lafayette noted, some have restless feet and never really put down roots. But once we reach the level of nations, people’s loyalties often become more steadfast. Ingrained. They see, from their often limited perspective, the advantages being a member of their nation; they are subject to the threats, real or not, of other nations, and seek safety in their own, offering loyalty in return.
But, more importantly, the nation is often an embodiment of a religious or ethnic mythology. As Americans, we have a certain mythology, originating in and used to justify various wars as well as the conquering of the American West. But given our heterogenous nature with regard to religion, we rarely conflate being American with any particular religion[2]. Our mixed ethnicity hardly even needs be noted, although certain emigré communities have attained notoriety in American culture: the Irish of Boston, the Poles of Chicago, the Norwegians of Minnesota. The point is that our experience with the mixing of national pride with ethnic and/or religious mythologies is meager.
And, I suggest, that mythology, regardless of origin, asserts an influence over the attitudes, judgments and actions of those born under it. Rationality recedes; loyalty comes to the fore. Throw in a tradition of self-sacrifice, which is often a worthy element of religious traditions, and you have a recipe for the effective mole.
For those unfamiliar with the term, a “mole” in this context is a person who joins some organization, professes loyalty, and remains with an organization for an often substantial period of time acting as an effective member, but waiting for a signal from another organization to engage in an act deleterious to the first organization. The time period in which they act in the interests of the first organization gradually immunizes them from suspicion and detection, so when they strike, they are still unsuspected. The more their faux loyalty has resulted in elevation within the organization, so much the greater is the damage they can inflict. Intelligence communities spend many hours worrying about such creatures, having been victimized over time.
Eugene’s proposal is a perfect opening for moles.
Corporations: A corporation is an organization created in order to supply goods or services in hopes of scoring a profit in the transaction. The CEO is the person in charge of the strategy of the corporation, often in conjunction with a corporate board.
Do corporations inspire an instinctive loyalty? Some might argue they do. I grew up in a period of flux in which the corporations’ reputation as life-long employers became ragged. I recall my own father’s emotional distress as his employer, Sperry, became less an institution worthy of loyalty, and more an institution that was a member of a culture of mercenary necessity, ready to lay off employees or sell off divisions as thought necessary to preserve the bottom line, paying off the loyalty of their employees with little more than cold cash. For some, this was appropriate, but for others, the culture — that sense of community and belonging — was broken, rendering the corporate community little more than a cash extraction mechanism.
And that’s my point. If the corporate culture engendered instinctive loyalty, how often would we see the movement of a person from a CEO position at one company to the CEO position at another? Never. But, in fact, in the real world we do see that phenomenon, and it’s not even an unusual move. Do we see this in the public sphere? No doubt, there have been a few instances, mostly involving peaceful annexations, but, in general, no. Heads of government do not move from one country to the next. The question of ultimate loyalties is paramount.
This lack of instinctive loyalty to one’s corporation is, in fact, sensible. Few of them provide what I would call true essentials: food, water, safety, health. Most corporations exist to provide chairs, tables, cars, a vast host of things we think are essential, but aren’t. The benefits of corporate culture can be obtained from the culture we live in. Corporations are simply a convenient, and some would argue best, way to provide the goods with which we enhance our lives. It is, in fact, unlikely that a CEO will move to another corporation with the goal of destabilizing that corporation in favor of his former employer, because that instinctive loyalty simply doesn’t exist. Their motivation is uncolored by ethnic or religious mythologies in most instances. It’s often motivated by compensation, although some individuals have higher motivations.
Eugene’s implicit suggestion that there’s a viable analogy is dubious at best, as I think we can see now, but I think one more element needs to be examined to understand why his analogy is completely inappropriate, and that is the question of governance.
The selection of our method of governance was made by the Founding Fathers years ago, but that doesn’t really reduce one of the most difficult questions human societies face: how, in the face of human greed and fallibility, do we govern our public organizations? For this discussion, I mean nations. The Founders provided a framework designed to mitigate the bad actions inherent in our selfish natures, but I’ll skip any digressions on the nature and efficacy of this framework[3]. Within that framework, though, we have to select leaders, and this may be the most difficult question for the Nation as a whole to solve.
Voting is our current method of selection, and while it has its advantages, it also has its disadvantages in that it expects a substantial fraction of the electorate to responsibly investigate the competency and character of the candidates. This is a difficult thing to do. I shan’t belabor the point, but merely point out that much of our judgment must come from secondary or tertiary sources.
How does the Article II clause play into this? By removing the question of a foreign loyalty bound by foreign mythologies, it slightly simplifies the task of judging a candidate. It’s not impossible that a candidate has been previously subverted, a concern that was noted during the JFK candidacy by the rumors that Kennedy, the first Catholic President, might be controlled by the Vatican. While dismissed as religious bigotry, it is symbolic of the fundamental concern of loyalty to the Nation. But such subversions are far more likely to be detected and publicized, even prosecuted.
Keep in mind, in the selection of the governors, just as with governance itself, certainty is a very scant quantity. We must deal in probabilities and work from a disinterested perspective, self-aware of our flaws and eccentricities.
Eugene asks “… whether POTUS is so distinct as to merit different treatment … from how the U.S. Constitution defines eligibility to be a federal lawmaker or life-tenured federal judge.” The President is an unique position with the Federal government, and while, during the current fiasco of an Administration, the role’s limitations have been brought into sharp relief, the fact remains that the Presidency also has powers unavailable to the rest of the Federal government, and they are under the control of one person.
Consider the lawmakers: do they operate in a vacuum, making laws without regard for others? No. In fact, the lawmakers must persuade their colleagues as to the wisdom of the laws they propose[4], and those laws must satisfy those limitations imposed by the U. S. Constitution, as amended.
Who interprets the Constitution and the law? Eugene’s federal judge. None of those operate in a vacuum, either, as there are courts of appeal used to correct the improper interpretation, and the final court of appeal is composed of a collection of judges whom we hope excel in their chosen field.
But the occupant of the Presidential role need not persuade others of the wisdom of his actions, insofar as those actions are those preordained to be licit, he need merely take action. The president does not make law, but only implements it. The president chooses nominees for non-elective executive positions, but even if they are rejected by the Senate, the Senate has no power of selection, but only that of confirmation or rejection. Today, the President can make War in all but name.
Yes, the Presidency is a very special position, which is why it must be renewed every few years. It can be an enormous force for positive – or it can do enormous damage to the polity, even if it is tempered by a competent Legislature.
Collectively, this is why Eugene’s defense of his proposal is flawed.
Finally, during composition of this post one more thought came to mind. The United States is a polity of 300+ million people, of which the overwhelming majority satisfy, or will satisfy, the requirements of the Presidency. If a nation of this size must import an individual to be a President, if we cannot generate an individual of more than satisfactory competency, then what does that say about American culture? Here I don’t address the problematic question of “best President,” because we don’t need that. We cannot need that, because we cannot agree on the meaning of that phrase. But we need to be able to agree that someone is competent to execute the post in a disinterested manner. We know that the government’s responsibility is dispersed through a number of positions, such as the President’s Cabinet, who may report to him but may also examine him as well. He is neither King nor Autocrat, but rather a central role in a decentralized government. He needn’t be best, as we cannot even agree on what this means; he merely need be good enough.
Yeah, stop laughing. I know we can’t define that, either.
1I think American law recognizes this instinctual and overriding loyalty by exempting the testimony of spouses against each other. Or is this just TV law?
2As a matter of dreary certitude, it should be noted that the truth of this observation is to the frustration of certain American religious leaders who are eager to illicitly co-opt American strength to their own religious causes. As an agnostic, I remain appalled at their ignorance of American law and tradition – or their deceit. Take your pick.
3Especially as the answer to the efficacy question remains in the future and will be inversely measured by the damage done by our current Administration.
4Obviously, during the current trend of using “team politics,” this requirement has been somewhat obviated.
