Constitutional Reason of State

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CONSTITUTIONAL REASON OF STATE

Reason of state is one of the illimitable silences of the Constitution. Derived directly from Niccolò Machiavelli and john locke (who called it the "prerogative"), it is "the doctrine that whatever is required to insure the survival of the state must be done by the individuals responsible for it, no matter how repugnant such an act may be to them in their private capacity as decent and moral men." Not labeled "reason of state" by the Supreme Court, the doctrine often travels under the banner of national security or the "interests of society."

National survival is the ultimate value protected by the doctrine. But more is covered; it is used whenever an important interest of the state is jeopardized, as perceived by those who wield effective control over the state's apparatus (government). Wartime use is the most obvious, stated classically by abraham lincoln in 1861: "Is there in all republics this inherent and fatal weakness? Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence?" Other instances in which reason of state has been the validating principle include the treatment of American Indians, wars of conquest (such as the Mexican War), economic depressions, and the control of dissident groups. Justification for both the Korean and Vietnam "wars" rests on the doctrine. (See korean war; vietnam war.)

The basic constitutional problem is to distinguish between the circumstances fit for republican (that is, democratic) rule and those suited for personal rule. With rare exceptions—the principal ones are the Steel Seizure Case (youngstown sheet and tube v. sawyer, 1952) and united states v. united states district court (1972)—the Supreme Court has deferred to the political branches of government. The President normally is the moving force, with Congress usually acquiescing in executive actions designed to meet perceived emergencies. The prize cases (1863) were the leading early judicial statement approving the doctrine. (See also japanese american cases.)

To the extent that the doctrine of reason of state finds acceptance, the theory of limited government recedes. Government in the United States has always been relative to circumstances, precisely as strong as conditions necessitated. The Constitution, accordingly, has been updated by successive generations of Americans, often at least tacitly employing reason of state principles.

No criteria exist by which to determine whether reason of state has been validly invoked. The Supreme Court has thus far failed to define such synonymous terms as "national security" and "society." By employing a balancing test, the Justices rule for society—for the state—whenever the vital interests of the state are considered to be in danger. In so doing, the Court never divulges how it determines what the interests of society are or the weights to be given to them. Reason of state, therefore, often amounts to government by fiat, but with the legitimizing imprimatur of the Supreme Court.

The bill of rights was an effort to limit the application of reason of state. However, Supreme Court interpretations have converted many of those seemingly absolute commands into mere hortatory admonitions to act reasonably in the circumstances. For example, the first amendment's presciption that "no law" should abridge freedom of speech or press has been interpreted into relative standards. Reason of state thus has been resurrected by the Supreme Court after the constitutional Framers tried to hem it in.

Every nation employs a variation of reason of state, whether or not it has a written constitution. France, for example, expressly provides for emergency powers in Article 16 of the constitution of the Fifth Republic. The United States has accomplished the same result without an express constitutional provision or even a stated constitutional principle.

If, as many assert, the United States has entered a period of great danger, one in which its constitutional institutions will be sorely tested, reason of state will doubtless often be invoked—probably tacitly—as emergencies and crises arise. The doctrine can and will be employed to justify presidential use of violence without congressional authorization, as Presidents have almost routinely done in the past. It is the ultimate basis for expansion of presidential powers in many directions.

The Constitution was written at a propitious time in history, a time when a coalescence of factors—geography, natural resources, freedom from external pressures, a small population, capital and cheap labor from Europe—provided a favorable milieu for the fundamental law and its structure of government to flourish. Today, Americans face polar opposites—a shrinking planet, dwindling resources, total immersion in foreign affairs, a burgeoning population, a slowing of productivity and of economic growth. Crisis government, accordingly, is becoming the norm. More and more, government will call upon emergency powers—upon reason of state—in efforts to cope. The large meaning is that a new fundamental law is emerging, one that can be called the "Constitution of Control." It exists as another layer on the palimpsest that is the Constitution of 1787.

Arthur S. Miller
(1986)