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.
