The Chief Magistrate: Executive Power in Light of Hebraic Republicanism

• In Event: Empire, Republic, and Virtue in American Political Thought

Abstract

Recent discoveries in the history of political thought have important implications for constitutional history and contemporary political theory, inviting us to reassess subjects that once seemed settled. In particular, recent scholarship has now established that seventeenth- and eighteenth-century political Hebraism (the use of Hebrew-language rabbinic sources to work out theories of politics and law in early modern England and revolutionary America) was an important voice in the development of modern constitutions and republican government. Early modern constitutional theorists turned to the ancient “commonwealth of Israel,” stylized as “the Hebrew republic,” as an exemplar among historical models of government. Although there is now recognition that Hebraic republicanism played a decisive role in excluding kingship as a legitimate form of government, there has been surprisingly little attention given to the institutions and models of executive leadership internal to the Hebrew republic.

At the American Founding, Hebraic republicanism had returned to peak influence. The biblical judge—figured as the “chief magistrate” of Israel’s model republic—played a prominent role in ideas about executive power both for political theorists and constitutional thinkers influential at that time. These included James Harrington, John Selden, Algernon Sidney, and John Locke, as well as Framers such as Roger Sherman and John Adams. Prominent ministers also invoked the example of ancient Israel’s unique constitutional executive in well-attended and widely-circulated American political sermons read by founders such as Benjamin Franklin and George Washington. Hebraic sources on executive power took on a central role in the constitutional thought of the Founding, in part because they offered attractive alternatives to the other archetypical executives history offered—Roman dictators, European kings, the Venetian Doge and the Dutch Stadtholder—all of which had been rejected as exemplars for the American republic by 1788. The polity of Israel alone remained.

This paper makes two contributions. First, it intervenes in current jurisprudential debates about democratic executives by demonstrating that we must understand the theorizing about the chief magistrate of ancient Israel if we are to have a complete and accurate understanding of “the executive power” wielded by the Article II President of the U.S. Constitution. Second, this paper shows how attending to this history can inform contemporary political theorizing by recovering an important alternative theory of executive power immutably subject to the rule of law. While the biblical judges enjoyed considerable discretionary power during times of crisis, they were always subject to a higher law and meaningful institutional constraints, described in detail in the political Hebraists’ source texts. Among these was an inviolable norm of human dignity (kavod ha-briyot) built into any exercise of even the most extreme discretionary power.

In our time, calls for political leaders to invoke emergency powers and operate crisis governments are increasingly the norm rather than the exception. The theory of the politics of exigency this paper reconstructs relies not on the traditional legal maxim of salus populi suprema lex esto (“the safety of the people is the supreme law”) and its glorification of mere survival, but instead bases itself on the principle “great is human dignity, which overrides even a divine injunction.” Recovering this theory is both significant for the history of political thought and appealing on normative grounds, since it views establishing and maintaining societies that respect human dignity as the proper end of government and because it does not suffer from the well-known means-ends defects of prior, dominant theories of emergency, which took the supreme principle of government to be collective safety and security, rather than the unquestionable worth of the human person.

Author

• Daniel Slate, Stanford University