Friday, August 30, 2013

The Constitutionality of War


Via Ilya Somin @ volokh.com, law prof Michael Ramsey on what the Constitution used to mean:

Every major figure from the founding era who commented on the matter said that the Constitution gave Congress the exclusive power to commit the nation to hostilities. Notably, this included not only people with reservations about presidential power, such as James Madison and Thomas Jefferson, but also strong advocates of the President’s prerogatives, such as George Washington and Alexander Hamilton. As President, Washington on several occasions said that he could not undertake offensive military actions without Congress’ approval. Hamilton is especially significant, because his views on the need for a strong executive went far beyond those of his contemporaries. Yet Hamilton made it very clear that he read the Constitution not to allow the President to begin a war – as he put it at one point, “it belongs to Congress only, to go to war….”
The fact that our use of force is limited to air strikes should not matter. Limited wars were well-known in the 18th century (Britain and France fought a limited war at sea and in North America during the American Revolution). The U.S. fought two limited wars early in its history, against France beginning in 1798 and against Tripoli in 1801. So far as I know, every person commenting on these events at the time thought that Congress had to authorize any initiation of force, even limited naval attacks...

6 comments:

Art Deco said...

http://www.nationalreview.com/corner/357201/framers-war-powers-and-presidency-john-yoo

An alternative view is here.

Tom Van Dyke said...

I find both correct, in their way. The spirit of the law is that the president may act, but should consult Congress, esp if the conflict is of a duration, scope or circumstance that can fairly be called "war."

[The War Powers Act tried to codify that "spirit."]

When some Republicans and Dennis Kucinich tried to go after Obama's unauthorized Libya adventure in the courts, they were rebuffed. I thought they had a point, but not enough to start a constitutional showdown.

http://www.washingtonpost.com/blogs/2chambers/post/kucinich-other-house-members-file-lawsuit-against-obama-on-libya-military-mission/2011/06/15/AGrzd6VH_blog.html

Anonymous said...

Imagine the government of Canada ordering an airstrike on Chicago. Would any American not consider that an act (or declaration) of war? If any president wants to bomb another country (except for an incredibly hypothetical possibility such as the need to do so to repeal an invasion) he should get Congressional approval.

For what it is worth, Roger Sherman would have Congress declare and RUN wars. And it would elect the president every year. Would America have been involved in more or fewer international conflicts if he had gotten his way?

Mark David Hall

Tom Van Dyke said...

For what it is worth, Roger Sherman would have Congress declare and RUN wars. And it would elect the president every year. Would America have been involved in more or fewer international conflicts if he had gotten his way?

Dunno, MDH, but with Congress in charge I'm pretty certain we'd have lost whichever ones we were in.

Mark Hall said...

How about the War for Independence, wherein Congress takes down one of the world's greatest empires?

Of course, no system is perfect, and the Continental and Confederation Congresses had plenty of problems. But when it comes to power, in my mind the more decentralized the better!

MDH

Tom Van Dyke said...

You rightly acknowledge that the Continental Congress was a different animal than the one we have now under the 1787 Constitution. Unlike now, their asses were on the line, guilty of treason against the Crown, every manjack one of 'em!

Now, those were serious cats...

My latest article at my new political groupblog [based on this article here, scroll down] has my actual feelings on the subject

http://lonelyconservative.com/2013/08/the-history-of-the-constitutionality-of-war/

pretty much that except until lately under President Obama, there has been an American consensus about each of our wars, even the undeclared ones. If I were arguing your point, Mark, I'd probably have pointed to the British parliamentary system, under which the legislature controls the executive branch and still has won most all of its wars.

Still, the PM is the C-in-C and I think you need a man at the top to ride out the tactical highs and lows of a war in favor of pursuing a comprehensive strategy. Nothing succeeds as planned.

I think good governance equals consensus, not just 51% vs the other 49. That's why I'm a republican, small r, more than a democrat small d.

For most of our history, I think our republic has worked.