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July
20, 1999
"WAR
POWERS ": VAGUE, UNDEFINED,
AND POST-CONSTITUTIONAL?
About a year ago, I took part in a
heated debate over U.S. foreign policy on a historians' e-mail list
to which I belong. One side, whom I unkindly dubbed "the militarists,"
took the Goldwater/Buckley/etc. position that Presidents can pretty
much do whatever they want and "we" have to support them
once the bombs are falling and so on. Venting my frustration with
these people, I wrote that I doubted that a vast array of so-called
"war powers" exists in peacetime and was beginning to
doubt if it exists, constitutionally, in wartime. Of course, I was
thinking of a constitutional universe and not the post-constitutional
one in which we actually live.
Still, those with any remaining loyalty at all to the notion of
a fixed constitutional order should find interesting, at least,
the critique of "war powers" that can be made from the
standpoint of the republican ideas embodied in the actual Constitution
as written in 1787. (It may seem naïve to refer to the "real"
Constitution, but I do so to create a contrast with the "evolving"
one the federal courts like to discover while wandering about in
the "emanations," and "penumbras," and methane
of various amendments they find useful while running a permanent
nine-person Constitutional Convention.) Constitutional arguments,
while not in fashion, have some lingering appeal on the Right and
"down there in the United States" (as Bob Dylan used to
say), and it may be useful to bring them to the public's attention
now and then – especially since we can't rely on the Republican
Party to give much of a damn about such matters. (Those who think
of the Constitution as a mere 18th-century grocery list can skip
to the end.)
Professor Edward S. Corwin made a useful start in 1947 with his
book Total
War and the Constitution. He made a very good case that
Abraham Lincoln simply "invented" the war-powers doctrine
out of whole cloth by setting the Commander-in-Chief clause alongside
the one that says that the President "shall take care that
the laws are faithfully executed." Lincoln – a crafty
fellow and a lawyer, of course – affected to believe that these
provisions, taken together, proved the existence of inherent Presidential
powers of unknown scope, but presumably enough to allow a President
to deal with any "emergency" he believes to exist. All
this went entirely against the Constitution itself and all relevant
precedent, as poor Chief Justice Taney tried to say in his (ignored)
wartime decisions (e.g., Ex Parte Merryman). As for Corwin, he seemed
to forget his own thesis and in his later books he couldn't have
too much Presidential power.
Fortunately, constitutional scholar Raoul Berger came along to fill
the breach. He is controversial because, although he claims to be
a kindly, liberal sort of fellow, his constitutional research leads
him time and again to question the legitimacy of the Remodeled Constitution
popular with our current elite. And unlike so many practitioners
of the black arts of the law, Berger is genuinely nonpartisan. Having
written a devastating critique of inherent Presidential power, Executive
Privilege (1974), during the tenure of Richard Nixon, he
did not turn around and later write a defense of such power just
because someone other than Nixon held the office.
Berger says of Lincoln's cobbled-together doctrine, that "So
far as the 'original intention' is concerned, neither power taken
alone conferred a 'war-making power,' and when nothing is added
to nothing the sum remains nothing." Leaving aside the tendentious
"lawyer's history" generated in the executive branch and
used from time to time against assertive Congressmen, the most overblown
theory of Presidential inherent power came in 1936 in the case of
United States v. Curtiss-Wright Export Corporation. There, Justice
Sutherland asserted that American Presidents inherit the Royal Prerogative
held by the Kings of England! Sutherland maintained that during
the Revolution, the "external sovereignty of Great Britain
immediately passed to the Union" – and presumably to its Chief
Executive, as soon as one was invented, some years later. Berger
dissects, demolishes, and puts Sutherland's case beyond hope of
repair.
To begin with, American legislatures and courts spoke of "powers"
and seldom about the broad and elusive notion of "sovereignty."
When they spoke of the latter, they often remarked the coming into
being of thirteen sovereignties (not one), which later formed the
Union. Since the states instituted constitutions which subjected
their executives to considerable legislative oversight, it is hard
to twist out of their actions the view that they thought George
III's vague royal prerogative had passed to anyone. The Revolution
in fact abolished it. When delegates from these same states drew
up a new federal Constitution for themselves and conventions in
these states ratified it, their deliberations (and the constitutional
"text" itself) made it more than clear that none of them
had in mind the Ozymandian Office we see today, an office whose
occupant – plucked off a garbage tip, nominated, and duly elected
by the mysterious processes of modern "democracy" – claims
powers Justinian and Chosroes would have envied, and who, as a practical
matter, holds sway over more weaponry (of "mass destruction"?)
than all the tyrants of the past put together. A monarchy, elective
but otherwise absolute, was not the goal of the Founders.
Berger's general conclusion, then, is that the Constitution envisions
a President who a) receives ambassadors, b) appoints heads of departments
(to be approved by the Senate), c) commands the armed forces once
a war has been declared or enemy armies actually invade US territory,
d) "makes treaties" which have no force unless ratified
by two-thirds of the Senate, and e) sees that the laws are "faithfully
executed." Thus the President is the head beadle, the top janitor,
the chief administrator, a host at gatherings of foreign potentates,
and the leader of all those "subaltern clerks" that Ludwig
von Mises used to write about. It is hard to wrench from this short
list of duties any believable doctrine of inherent Presidential
power. That such a doctrine exists and has swept the field bears
witness to the bad faith and ambition of those who can't achieve
their goals by ordinary constitutional means and therefore prefer
the backing of an elected monarch (responsible to "everyone"
and therefore to no one) and the Supreme Court sitting as a French
Revolutionary sovereign Convention with a license to do good.
Berger notes that Congress can try to dodge its constitutional responsibilities
over war and peace and foreign affairs generally by claiming to
"delegate" whole stretches of its power to the executive.
He comments that 1) this shows, at least, that such powers were
not inherent in the Presidency, 2) it is constitutionally questionable
whether Congress can so delegate its powers, and 3) a sufficient
quantity of such "delegation" effectively overturns the
basis of republican government, which rests on legislative supremacy
under the Constitution, which in turn rests on a notion of enumerated
powers. Berger adds (quoting Corwin), "It is a necessary consequence
of the separation of powers that 'none of the departments may abdicate
its powers to either of the others.'"
Of course, such wholesale abdication by Congress has taken place.
The feeble War Powers Act, which attempts to restore part of the
original constitutional balance, has been honored more in the breach
than elsewhere, and Congress can barely be bothered to assert its
rights under that Act or the Constitution itself. The current Serbo-American
War seems to show that if a President does whatever the hell he
wants, Congress will reward him with more "defense" spending
than he asks for. Alongside legislative abdication, abuse of the
treaty power has been a gold-mine for Presidential supremacy. There
is a whole literature that pretends that Presidents can constitutionally
make "executive agreements" with foreign powers, which
agreements do not require ratification by the Senate and yet rise
to the status of real treaties when it comes to overriding domestic
US laws (federal and state). And yet it appears that the sole reason
the original Constitution made treaty provisions superior to domestic
law was to confirm those treaties which existed as of 1787. This
may indeed be a piece of sloppy draftmanship just waiting to be
exploited. The much-maligned Bricker
Amendment – the last serious effort of the Old Right –
was an attempt to eliminate this opportunity for aggravated statism
by treaty. (I hope to return to the Bricker Amendment at a later
time.)
The fundamental problem is Empire. That the United States is, or
has, an Empire remains a brute fact which will not be altered by
appealing to what John Randolph of Roanoke called "parchment
guarantees." I suggest, however, that regular use of the republican
language of the Founders can help the public (if that "bourgeois"
phenomenon still exists) better appreciate what is at stake, and
what we have lost in letting a whole set of "armed doctrines"
march into the constitutional space. It's better than pretending
these things were always there and that sword-sharp minds like FDR,
Truman, Nixon, Clinton, and the Nine Delphic Oracles have only latterly
"discovered" them beneath all that 18th-century "discourse."
Joseph
R. Stromberg has been writing for libertarian publications since
1973, including The Individualist, Reason,
the Journal
of Libertarian Studies, Libertarian Review, and the
Agorist Quarterly,
and is completing a set of essays on America's wars. He is a part-time
lecturer in History at the college level. You can read his recent
essay, "The
Cold War," on the Ludwig
von Mises Institute Website. His column, "The Old Cause,"
appears each Tuesday on Antiwar.com.
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