The Spectacle Blog

Political and Constitutional Questions Are Not Synonymous

By 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.

Send to Kindle

Like this Article

Print this Article

Print Article

More Articles From John R. Guardiano