President Trump recently scored a victory with the Supreme Court: The justices agreed to hear his case that his former role as president grants him immunity in the face of federal charges. Among the central questions in this criminal case: What does it mean for the president to “take Care that the Laws be faithfully executed,†as the Constitution requires?
Trump and his lawyers have argued that this constitutional clause grants him near-total immunity from judicial oversight, as opposed to being an accountability measure meant to hold the president responsible for enforcing the laws. While commentators on both sides have focused on what it means to “faithfully execute†the laws, few consider as closely the clause’s other phrase: the exhortation to “take care.â€
A common reading of that phrase by legal scholars is that it simply means to “ensure,†as in to “ensure that the Laws be faithfully executed.†But that reading shortchanges centuries of political thought about a question that hangs over Trump’s prosecution, and the outcome of this year’s election: What does it mean for public officials to have a duty of care?
Litman: Without even ruling on Trump’s immunity claim, the Supreme Court handed him a huge victory
The justices will hear arguments in the federal Jan. 6 case, delaying the ex-president’s prosecution for months as his campaign to return to the White House proceeds.
That question was taken seriously in ancient Athens, where a 403 BC decree instructed one of the traditional governing councils, known as the Council of the Areopagus, to “Take caring charge of the laws, so that the office holders may employ the laws that have been passed.†The similarity to what’s in the Constitution is striking: Both speak of caring and link it to the laws’ execution.
Yet the Athenian instruction more explicitly references “caring†in the sense of being a caretaker or guardian. This suggests that the officials’ duty is not simply to ensure the laws are executed, but also to safeguard their spirit. To execute without caring, indifferent to the fate of the overall democratic system, is to fail to execute properly at all.
In the 18th century American context, such ideas also had resonance, as shown in debates over the Constitution’s ratification. Commentators in the government and media spoke of federal officeholders’ “public trust,†their role as “servants†or “confidential guardians†of the people, and of the president as the “supreme conservator of the laws.†Even the president’s constitutionally mandated oath to “preserve, protect and defend the Constitution†invokes a notion of guardianship, an idea of rule that goes well beyond the idea that the president is merely the nation’s chief executive (or faithful executor).
Dante described the vestibule of hell as populated with those who couldn’t choose a side in life. I call that election 2024.
To safeguard the spirit of the laws, one has to know the laws’ purpose (in Greek, their telos). That telos is broadly understood in ancient Greek texts to be the good of the people. Accordingly, officials were described as stewards and guardians — in the poetry of Pindar, the comedies of Aristophanes and the oratory of Isocrates, among the works of other authors. These portrayals related to the roles of household stewards and legal guardians of children. As with legal guardians today, officials’ duty was to exercise their powers to care for the good of others.
The ancient Athenian philosopher Plato identified caring as a fundamental dimension of statecraft in his text “Statesman.†He argued in “Laws†that a good constitution requires a body similar to the Council of the Areopagus that can “keep watch over the laws.†Even in his dialogue “Republic,†rather than arguing for untrammeled rule by philosophers as many have thought, he proposed that a group of senior guardians should educate, select and supervise officeholders (and that the guardians should themselves be tested and selected by their predecessors).
This is constitutional rule, as suggested by the dialogue’s title in Greek (Politeia, literally meaning “Constitutionâ€), in which no individual official is immune to scrutiny as to whether they are taking proper care.
What might the U.S. learn from these ancient ideas? For starters, we might recognize that our own founding documents suggest that the telos of our democracy is, as it was for the Greeks, the good of the people.
Authoritarian rulers around the globe will attempt to use coming elections to consolidate power. But new democratic tools that empower citizens offer hope.
Imagine, then, if we established our own group of senior guardians to weigh in on the suitability of presidential candidates to perform the role’s essential caring function. The group could include living past presidents, who know from experience what the role requires, and, if necessary to make up a quorum, other qualified retired public officials.
Just as the American Bar Assn. rates federal judicial nominees as “well qualified,†“qualified†or “not qualified,†this body could rate major party presidential candidates on the basis of transparent, preselected and nonpartisan criteria. Although such a council would have no official role in the electoral process, its rating would signal the deliberative judgment of a uniquely expert group of individuals.
Moreover, in screening potential members for its own ranks, a council of ex-presidents could send further messages about the conduct of past executives. Just as Plato’s guardians were tested and selected by other guardians, so too could this group self-police, determining membership based on factors including performance before, in and after office in terms of exhibiting appropriate care — or a lack thereof — for the health of the democratic process and constitutional system. Exclusion from membership might bear on the National Archives’ support for a presidential library and other honors conventionally bestowed on past presidents.
To be sure, such a council would be subject to the full range of human foibles and moral failures — at least a dozen U.S. presidents, after all, were or had been slaveholders — and voters may well disregard their judgments. And it perhaps sounds like a flight of fancy to propose a new functional cooperative body in this fractious era of American governance.
On the other hand, the collective experience of prior officeholders may be exactly what we need to safeguard the president’s constitutional duty to take due care. Their ratings would remind all Americans of a lesson that the ancient Greeks recognized: that caring is fundamental to ruling.
Jane Manners is an assistant professor at the Beasley School of Law of Temple University. Melissa Lane is a professor of politics at Princeton and author of the book “Of Rule and Office: Plato’s Ideas of the Political.â€
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