This is embarrassing for someone as U.S. Constitution-obsessed as your humble and obedient ink-stained wretch, but Constitution Day snuck up on me. If I was on my toes, I would have posted this tone poem on the constitutional aspects of the will-we-bomb-Syria crisis on Tuesday, which was the designated holiday for Constitution-obsessing. My bad. (President Obama did provide me some cover by declaring the whole week in honor of the Constitution.)
The urgency of facing the Constitutional questions has declined at the moment, while we await results of the Russo-American plan for securing Syria’s chemical weapons. But those constitutional aspects are nonetheless permanently on the table because Obama (along with all recent presidents) claimed to possess, without benefit of congressional action, all the authority he needs to start a war (or, in the current Syrian case, join a war already in progress).
When I started my brief and soon-to-be-quiescent series on issues raised by the Syria story, I huffed self-importantly about the shortcomings of conventional journalism as dealing with big, deep discomfiting questions that cannot be clearly answered within the boundaries of the objectivity paradigm or within their presumptions about your attention span. The question of whether Obama really has that authority is one of them.
When announcing he was going to seek congressional authorization, he explained that he was “mindful that I’m the president of the world’s oldest constitutional democracy” and has “long believed that our power is rooted not just in our military might, but in our example as a government of the people, by the people, and for the people.” Obama further spoke thus:
While I believe I have the authority to carry out this military action without specific congressional authorization, I know that the country will be stronger if we take this course, and our actions will be even more effective.
Pretty words. I, for one, am glad that the president decided to honor the Constitution, and the Congress, in this way, which not all of his predecessors have done in similar circumstances. I have no use for the various instant analyses suggesting that this made Obama look weak, created doubt about his credibility in the eyes of the world and ultimately resulted in no attack occurring.
More honored than respected
But if I was the Constitution (or the Congress), I would say I feel more honored than respected.
There is something way messed up about saying that I am respecting the Constitution’s language about which branch of government can declare war by asking that branch to authorize me to take “military action” (not “war,” of course, just shooting a few cruise missiles at another country, and then we’ll see what happens) while simultaneously asserting that I don’t need authorization and I reserve the option of going ahead without authorization in case I don’t get it.
Various justifications exist for taking this line, but truly respecting the Constitution, or let’s say abiding by the Constitution, is not one of them.
If (as we are told we are supposed to) we take the Constitution seriously as the supreme law of the land and source of all other laws and governmental authorities, and if we embrace the idea (as conservatives generally do) that if the Constitution has a clear meaning and if it has not been amended we are bound by it, it is not only useful, admirable and polite but also mandatory for presidents to submit to it.
Regular readers of my scribbling may recall that, in my current stage of dotage, I am not as worshipful of the Constitution as most Americans. As evolved and when combined with the current norms of no compromise, it is the source of much gridlock and other dysfunction. In the area of war powers, it is also the source of much confusion. But — in that instance — that isn’t because the Constitution is confusing, it’s just that the constitutional balance of war powers is inconvenient to needs and wants of a modern superpower.
In this instance, it’s not that hard to understand what the Framers were up to. They gave Congress the power to declare war, and made the president the commander-in-chief of the armed services.
In the circumstances in which they framed (and, really, any circumstances in which one is honestly trying to understand the plain meaning of words) being commander-in-chief, it didn’t give one person the power to start a war. If it did, what would be the point, in Article I, section 8, of giving Congress the power to declare war? And yes, the word is “power” to declare war, not just the honor of declaring one that the president has already decided to fight. The same section gives the Congress several other powers closely connected to war and the running of the military.
Article II (the much shorter article enumerating the job of the president) states: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” That’s the whole textual basis for the president’s military role.
In the context of 1787, it’s fairly clear how this was supposed to work. The federal government would have a minimal standing military, which was part of the executive branch and which the president could command to, for example, repel an invading force or suppress an internal rebellion (even, on short notice, if Congress had not yet had a chance to vote on a declaration of war). Most of the nation’s military would consist of state militias, under control of the states, unless they were “called into the actual service of the United States,” which would be triggered by a larger emergency or a congressional declaration of war. Once war was declared, the commander-in-chief would make the day-to-day military decisions.
If you read the quotes on this link from George Washington, James Madison, Thomas Jefferson, Alexander Hamilton and other framers and remain in any confusion about the original understanding, I will be surprised. As Jefferson said, the power to let loose the dog of war had been given to the legislative branch and only the legislative branch. As Madison put it, the executive has no right to decide whether or not the United States should go to war.
The framers’ clarity was crystalline. Decades later, the importance of Congress’ war powers was still widely accepted. A young one-term congressman named Abraham Lincoln explained his understanding in a letter to a friend back in Illinois:
The provision of the Constitution giving the war-making power to Congress was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.
World War II is the last actual declared war, in the most literal understanding that Congress actually passed a resolution using the words “declare” and “war.” But those instances in which Congress used different words, “authorize” and “military action” could easily be interpreted as complying with the important constitutional requirements. In some cases, most notably the Gulf of Tonkin resolution, a succession of presidents demonstrated that Congress should be concerned about a vaguely worded resolution authorizing the president — as Tonkin did, on the basis of an incident that had been inaccurately reported — “to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression.” They had no idea their words would be used to justify one of the longest wars in U.S. history.
In my view, the Vietnam War was really part of the new post-World War II situation that shredded the original constitutional understanding but without benefit of any change in the Constitution. The Cold War wasn’t really a war, more of a worldview and one in which the United States was seldom fully at war but never fully at peace. Presidents could and did turn the faucet from cold to hot war, where the mere existence of unfriendly governments in various corners of the world could be said to threaten our “national security interests.” After the Cold War, even that malleable phrase wasn’t quite vague enough and presidents now promise to use military means to defend our “vital interests,” a meaningless phrase that often means there’s oil in the area.
In the new world, of course, the United States could also overthrow foreign governments (excuse me, the United States could engage in “regime change”) by covert means, usually using the CIA. Were these acts of “war?” Feels like it to me. Where does “regime change” fit into the Framers’ scheme?
In fact, the Framers’ scheme has basically withered away. A few installments back, I used the statements by Obama and Swedish Prime Minister Fredrik Reinfeld to suggest that both leaders are pretending to operate within systems that basically don’t work. For the Swedes, it’s the system that relies on the U.N. Security to authorize multilateral action and to use that power to punish aggressors and other violators of the peace of the world.
For Obama, it’s the Constitution, at least in the area of war powers. That system has been revised beyond recognition, and the revisions have been by extra-constitutional means.
Is this one more area in which the original constitutional understanding simply cannot work in the 21st century? If we look around the world, we find many democracies in which the elected legislative branch does indeed hold the leash of the dog of war. But those are ordinary nations. We are exceptional, with exceptional military means and exceptional superpower “responsibilities” that the poor old Framers couldn’t seriously have imagined.
The war powers provisions of the Constitution were written for a small New World country separated by oceans from the Old World, not for the superpower in a one-superpower world. In theory, we should be able to have a great national conversation and perhaps find new language for a realistic new understanding of how we decide matters of war. But the extremely high bar for amending the Constitution (two-thirds majority in both houses of Congress and ratification by three-quarters of the states) also seems made for a different political situation than the one we currently inhabit. Since the Constitution will not easily accommodate itself to the role of a global superpower, the accommodation has had to work the other way around.
In 1973, Congress did pass (over President Richard Nixon’s veto) the War Powers Resolution, which sought to rein in the power of presidents to conduct military actions of longer than 90 days duration without congressional authorization. In the context of the original war powers understanding, this would have been a huge expansion of presidential war powers. But in light of the unofficially revised doctrine that the commander-in-chief can do what he likes with his military, every president since Nixon has expressed doubts about its constitutionality and we have never had a definitive test of the new balance.
And, since the larger constitutional system is not supposed to be revised except by amendment, is this one more way of suggesting that, as a concrete rulebook for government, the Constitution is more myth than reality?