War and the Constitution - by David R. Henderson

Author's note: Sept. 17 was the 220th anniversary of the signing of the U.S. Constitution. To commemorate that day, California State University, Monterey Bay (CSUMB) held a public forum with a panel of four speakers: David Anderson, a history professor at CSUMB; Michelle Welsh, a lawyer and member of the ACLU; John Arquilla, a professor at the Naval Postgraduate School; and me. What follows is the talk I gave. Even though I criticized liberal icons such as Woodrow Wilson and Franklin D. Roosevelt, the apparently left/liberal audience responded favorably.

This day celebrates my second-favorite U.S. historical event, the signing of the U.S. Constitution. My favorite is the signing of the Declaration of Independence. The U.S. Constitution is there to protect our rights, to tell the government the only things it can do. If the federal government does not have a specific power granted to it within the Constitution, then it does not have that power. Period. The Ninth and Tenth Amendments assure that. The U.S. Constitution is a set of enumerated powers.

It isn't just the Bill of Rights that protects our rights, although it does do that. It's also the carefully thought-out division of powers within the U.S. Constitution. Why such a division of powers? Because no one is to be trusted with too much power. Incidentally, when Alberto Gonzales gave a talk at the Naval Postgraduate School in 2002 defending many of President Bush's unconstitutional actions, a colleague and I challenged him afterward. He tried to reassure us, saying, "Condi and others and I are looking out for how the president will play in history. We don't want him to look like some monster who destroyed our freedom. Trust us." I answered, "The Constitution is not based on trust, but on distrust."

One of the most important things the government does is engage in war. For that reason, the Constitution gives the power to declare war solely to Congress. Article I, Section 8 says, among other things, "The Congress shall have Power . . . to Declare War." It doesn't say that the president doesn't have the power to declare war. The Constitution doesn't need to say that. As I mentioned earlier, the Constitution is a list of enumerated powers: If it doesn't say you have the power, you don't have the power.

Consider why this matters. Think back to all the discussion before the U.S. government invaded Iraq in March 2003. One of the biggest issues was whether, and to what extent, Saddam Hussein had weapons of mass destruction. We now know that he didn't have such weapons – even many of Bush's defenders will admit his error. We don't even need to get into the issue of whether Bush was lying. Even if we assume the best – that Bush was saying what he thought to be true – the point is that we could have had a much better discussion of the issue if Bush had followed the Constitution. If Congress had actually decided to vote on whether or not to declare war on Iraq, they would have had a debate. If they had had a debate, there would have been multiple sources of information about the weapons of mass destruction. But by violating his oath to uphold the Constitution, Bush made sure that there wasn't an extensive debate.

Now, Bush is not the first offender here; he has joined a long list of past offenders. In fact, every president since Harry Truman, with the possible exception of Jimmy Carter, has made war without a congressional declaration. That means Dwight Eisenhower, John F. Kennedy, Lyndon Johnson, Richard Nixon, Gerald Ford, Ronald Reagan, George H.W. Bush, Bill Clinton, and George W. Bush. And many presidents before Harry Truman made war without a declaration also, including Franklin Roosevelt. There's lots of blame to go around.

Moreover, past presidents, sometimes with the consent of Congress, have used war to increase their power, ignoring the Constitution in the process. The most egregious offenders in the 20th century were President Woodrow Wilson and President Franklin D. Roosevelt. Wilson's Espionage Act was used to end free speech during World War I. Indeed, the U.S. government imprisoned a man against whom Wilson had run in 1912, the Socialist presidential candidate Eugene V. Debs, for violating the Espionage Act.

And what was Debs' crime? He had given a speech in which he challenged Wilson's military draft and challenged the war. In one of its most shameful decisions, Schenck v. United States, the U.S. Supreme Court voted 9-0 to uphold the Espionage Act's restrictions on free speech. Indeed it was in the Schenck decision that Supreme Court Justice Oliver Wendell Holmes made his famous statement that "[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theater." Great line, but Holmes never connected it with the case at hand. Schenck was arguing against the military draft on the grounds that it violated the Thirteenth Amendment by imposing involuntary servitude. Holmes never said how that was like falsely crying fire. It seems to me that the fire was quite real.

Indeed, the biggest violation of the Constitution during World War I was the military draft, which the Supreme Court upheld in Arver v. United States. I recommend that you get online and read it. It's a hoot to see nine dishonest old men torturing the English language the way they do to uphold the draft.

And we can't have a discussion on war and the Constitution without mentioning FDR's decision to incarcerate over 100,000 Japanese Americans for no crime other than being Japanese. Again, the Supreme Court upheld his action. And I shouldn't leave the subject without noting that President Abraham Lincoln suspended habeas corpus, even though Congress alone has the power, under the Constitution, to do that.

Finally, the U.S. Constitution is also full of provisions to protect our economic freedom. The Fifth Amendment, for example, says "nor shall private property be taken for public use without just compensation." But both Wilson and FDR ran that provision and others through a Cuisinart with the aid of the Supreme Court and with the excuse that we were at war.

During a discussion he held with congressional Republicans about renewing the USA PATRIOT Act, President Bush, in a moment of anger, reportedly called the U.S. Constitution "a goddamned piece of paper." Maybe what distinguishes him from most other modern presidents is that he admitted his attitude.