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Political and Constitutional Questions Are Not Synonymous

By John R. Guardiano on 4.7.11 @ 12:51PM

The left has a bad political habit of reading its public policy preferences into the Constitution. So, for example, because they think the death penalty is bad, the Constitution must ban capital punishment. Conversely, they think, a right to abortion is good; so it must be expressly protected by the Constitution.

Voluntary school prayer is “bad,” so it is unconstitutional. However, criminals should be advised of their “rights”; therefore the Constitution requires the “Miranda warning.” Etc.

In this way, the Left has avoided the hard political work of passing unpopular liberal legislation. Instead, they’ve gotten activist left-wing courts to do the heavy lifting for them, by short-circuiting the democratic process and imposing, by fiat, their liberal or “progressive” agenda upon the American people.

It seems to me that our friend, Jim Antle, has done much the same thing with respect to presidential war powers authority. Jim doesn’t like the fact that the president has the constitutional authority to initiate and conduct war. So he’s convinced himself that doing so is “unconstitutional,” historical precedent and the actual text of the Constitution be damned.

The historical precedent is very clear: American presidents have dispatched troops into harm’s way, on various and sundry missions, including hostile-fire missions — i.e., war — repeatedly and often without express congressional authorization.

And they have done this because the Constitution (Article II) gives the president this authority. He is the “commander in chief” of the armed forces, and “executive power” is vested in him.

True, only congress can “declare” war. But the framers of the Constitution expressly substituted the congressional power to “declare war” for the congressional power to “make war.” This is an important distinction, because as John Yoo has observed:

When the Constitution was written, a declaration of war served diplomatic notice about a change in legal relations between nations. It had little to do with launching hostilities.

To be sure, the president’s war powers authority is subject to congressional oversight and restriction in accordance with Article I, which gives congress the express authority to “raise and support armies… provide and maintain a Navy, [and] to make rules for the government and regulation of the land and naval forces.”

Jim complains that these are “blunt instruments.” Maybe so, but they are also the constitutionally prescribed instruments of congressional war powers authority. Congress in short can cut off funding for a military operation, deny funding the operation in the first place, and regulate how the U.S. military organizes and administers itself.

And if Congress’s view the president acts unlawfully or abuses his trust with the legislature and the people, Congress can impeach the president. In sum, the Constitution gives the legislature considerable legal power to rein in the commander in chief should Congress choose to do so.

Of course, the greatest check on presidential war powers authority is political. The American people are not especially enamored of war. In fact, it’s fair to say, I think, that we Americans despise war and would much prefer to avoid it altogether.

That is why, despite his desire to have America enter the fray, Franklin Roosevelt did not lead the United States into World War II until the Japanese finally had attacked Pearl Harbor.

And that’s why Abraham Lincoln promised to preserve the Union at virtually any cost, including the preservation of slavery. The Civil War began only after the southern states had seceded from the Union and had fired on Union forces at Ft. Sumter.

Jim apparently thinks these legal and political constraints on the president’s war powers authority are insufficient. He may be right (although I don’t think so), but that still doesn’t give him and other “non-interventionist” cons the magical ability to read their policy preferences into the Constitution any more than it gives the Left the ability to do the same thing.

Indeed, we conservatives can’t rail against liberals for creating new constitutional “rights” (or new constitutional proscriptions), which are found nowhere in the Constitution, and then do the same thing when we think it suits our political purposes.

Yet, in a truly impressive act of constitutional jiu-jitsu, Jim says that this is what the champions of an energetic (or constitutional) chief executive are doing: We are abandoning the Constitution on matters of foreign policy while demanding a strict adherence to the document on matters of domestic policy. And we can’t have it both ways, he instructs us.

But the plain truth is that the Constitution treats domestic and foreign policy differently: The president has express constitutional authority to initiate or wage war. The federal government, by contrast, does not have any clear or obvious textual authority to mandate that the citizenry purchase, say, health insurance.

And so, while the Supreme Court will adjudicate the constitutionality of Obamacare, it will not, in all likelihood, ever adjudicate the constitutionality of Obama’s military intervention in Libya. The latter is considered a “political question,” which is beyond the purview of the courts, while the former is believed to be ripe for judicial review.

Suffice it to say that Jim and I agree on the Constitution. Where we disagree is on political questions that involve war powers authority.

Red Phillips | 4.7.11 @ 1:36PM

Mr. Guardiano, it is true that "declaration of war" had a certain diplomatic meaning at the time of the ratification of the Constitution that is not entirely synonymous with "start war," but it is also true that commander in chief did not have the meaning then that the executive supremacy war hawks want to invest it with now.

Making the President the commander in chief was a way of resting ultimate control of the military in the hands of a civilian, because they were rightfully leary of a fully independent military. But it was more a ceremonial title or office than it was a job description. If the President is really the "chief general" then why have we not always insisted, as a matter of prudence and safety, that the President be a general or at least have significant military experience, especially strategic? Washington was of course a general, but only intermittently after him have our presidents been and those were often people where the party was capitalizing on their war fame, not electing them to be chief war fighter.

Your pretense of "originalism" and "constitutionalism" falls apart because your executive supremacy argument is of relatively recent vintage, Cold War era particularly Nixon and beyond. Look it up and see when it started to come into the language.

Did you see Tom Woods' challenge to the hopelessly overmatched Mark Levin? It was essentially a challenge to him to find one quote from the Founders supporting his (your) view. Of course he didn't.

Maybe you can do a little better than Levin. If you are going to play the constitutionalist and originalist card then produce some quotes from the Founders, debate from the Convention, text from the Federalist Papers etc. that supports your view.

Good luck. Happy hunting.

Scott| 4.7.11 @ 1:50PM

"The legislature alone can interrupt [the blessings of peace] by placing the nation in a state of war."

So who's this person who obviously "doesn't like the fact that the president has the constitutional authority to initiate and conduct war" and has "convinced himself that doing so is 'unconstitutional,' historical precedent and the actual text of the Constitution be damned?"

That would be Alexander Hamilton (in the first Pacificus letter). You know, one of the Framers of the Constitution. And, to remind everyone, probably the biggest advocate of a powerful, energetic executive in the U.S. at the time. He's also not the only one of the Framers to think this way (see, for example, James Wilson), and when Pierce Butler suggested giving the president the power to make war, it was rejected.

As for the historical precedents, in some cases (such as the Civil War), it is recognized that a state of war existed before the president acted (the United States can be in a state of war when initiated either by Congress or by the opposing party), and in the other cases, the mere fact that no one (for whatever reason) chose to challenge the president's actions does not automatically render them constitutional.

In the future, when you want to look others in the eye and accuse them of reading their own preferences into the Constitution, you might want to first make sure you're not standing in front of a mirror.

L. E. Powers| 4.7.11 @ 2:29PM

John,

I thought your post was reasoned and well-considered. I agree with your point that there is the political and the constitutional, and that they are not synonymous--or even congruent.

I believe that the President does have the power to make war. In fact, in early years of our nation, governors of the western lands and territories (Harrison, for example) were leading their militias against indians and the British. We fought the Quasi War and the Barbary Wars. These, as I recall, were not declared wars.

Presidents who really wanted to be sure that the nation, and Congress, were behind them sought declarations of war. Our major wars, starting with the War of 1812 and Mexican-American War are examples. Lincoln conducted the Civil War without a declaration, in part because it was viewed as putting down an armed rebellion (just as Washington did in the Whiskey Rebellion), but he did not need one. Congress was willing to fund his war.

This political tension between chief executive and legislature is not unique to America, either. We used it to our advantage to eventually win our independence -- Parliament and the British tax payer tiring of paying for King George's war resulted in lower troop levels to put down the rebellion than military leaders requested, especially after France entered the war.

Politics has a huge role to play in our war powers. And making war is a collaboration between the executive and the legislative branches. One provides the muscle, the other provides the means.

Scott| 4.7.11 @ 4:09PM

Cases such as the Quasi-War and the Barbary Wars were ones in which we did not initiate the conflict. I do not think anyone (well, anyone on the Right) disagrees with the notion that the president has the authority to act unilaterally if the U.S. is attacked or under imminent threat of attack.

It occurs to me as I write this that Obama could have justified military action against Libya on the grounds of the revelation by Mustafa Abdul Jalil in February of this year that Qaddafi had ordered the Lockerbie bombing. Then military action could have been called a retaliatory strike and he would have been on pretty firm ground.

Of course, that would require Obama to argue that one of the primary jobs of the president is to protect the United States and its interests, and he often seems a bit squeamish when it comes to doing that.

Quartermaster| 4.7.11 @ 6:52PM

"He is the "commander in chief" of the armed forces, and "executive power" is vested in him."

That is correct so far as it goes. However, you ignore the fact, pointed out in your own words, that his power is "executive." So, pray tell, what is he executing if he has no declaration of war to carry out?

Bluntly, the post is silly and betrays a basic ignorance of constitutional law. The President is to defend the country, i.e., repel invasion, or defend the citizens of this country against pirate activities and such. Those examples are defensive in nature. Offensive operations, however, are acts of war, and teh president does not have the power to commit acts of war, an example of which can be seen in Libya. What the Obamabot is doing in Libya is an impeachable offense.

I don't look for our poltroonish popinjays in Congress to do their duty, however, because Obama really is their kinda guy. They wish they could do it too, os they will leave him alone that Lincolnian lawlessness shall not perish from the face of the earth.

Red Phillips | 4.7.11 @ 9:20PM

"and when Pierce Butler suggested giving the president the power to make war, it was rejected."

Not only was it rejected, he didn't even receive a second.

fwb| 4.8.11 @ 10:54AM

This series of arguments has been typical of those who read phrases and clauses out of context. The Constitution is a single document and every clause interacts in one way or another with every other clause. Those involved should take some time to take ALL the powers delegated from We the People and organize them into their related groupings. People who argue about the president's supposed Commander in Chief authority seem to ignore or forget Article I, Section 8, Paragraph 14.

The sum total of the President's executive powers are enumerated in Article II. He is the head butler.

Article I Section 8 Paragraph 14 grants to Congress the sole power of making the rules for governing and regulating the military. Gee. What does that mean? Oh yeah, the President has to abide by those rules because he is merely the executor of those rules.

Let's say the President can initiate and engage in war. From where does the President get the funds to do so. He has absolutely no taxing and spending powers. He has no appropriation authoirty. If he takes funds appropriated by Congress from another area in order to initiate and engage in a "war", he is guilty of an impeachable offense, theft from We the People because he holds no such authority over expenditures.

We must determine who is the boss in our government. First We the People are the superior of all government. We the People are the ultimate boss. Within government, there are three branches which are not as is commonly claimed "co-equal". The Congress is the President's boss. How do we know? Who can fire whom? Yep, that's correct Congress can fire the President. The President cannot fire Congress. Who's the boss?