If the United States and Coalition troops had not removed Saddam Hussein then Iraqis would have no chance at all.
Four years have passed since troops from the United States, Great Britain and several other countries liberated Iraq from the clutches of Saddam Hussein.
Of course, things have not gone as planned. In war they seldom do. The euphoria that surrounded Saddam’s fall gave way to anarchy and disorder. There is little doubt that Iraqis still live a perilous existence, be it at the hands of al Qaeda or Shiite militias supported by Iran.
But let us not be under any illusions that if only George W. Bush had not invaded Iraq it would have been a kite-flying oasis with rainbow-colored skies and chocolate-flowing rivers. It is worth asking what life in Iraq would be like if the United States and Coalition troops had not removed Saddam Hussein.
To start with Saddam Hussein would be alive, well and living in his choice of dozens of Presidential palaces.
The world would continue to wonder if Saddam would continue to pursue weapons of mass destruction. Saddam would have continued to play cat and mouse with United Nations weapons inspectors and circumvented them at every turn. The world would have every reason to believe that he possessed WMDs or was capable of assembling them in short order. The UN Security Council would continue to pass countless resolutions condemning him for violations of the Gulf War Ceasefire. In a manner reminiscent of Team America: World Police these resolutions would be complete with Hans Blix handing Saddam a letter from the Security Council telling him that they were very, very angry with him. And Saddam would have simply continued to ignore these edicts.
There is little doubt that the U.S. Air Force and the British Royal Air Force would have continued to enforce the no-fly zone policy to protect the Kurds in the North and the Shiites in the South from Saddam’s periodic aerial attacks on these populations.
Abu Ghraib would have remained open under old management. And believe me it would have been far more brutal than what was meted out by a handful of rogue American soldiers who were ultimately held responsible and punished for their actions. Thousands of Iraqi political prisoners, mostly Shiite, were executed inside the walls of Abu Ghraib. Excluding its eight-year war with Iran, Saddam’s regime was responsible for over 100,000 civilian deaths, including chemical attacks that killed 5,000 Kurds in the town of Halabja in 1988. It cannot be emphasized enough that Saddam gassed his own people. In all, it is estimated that up to 600,000 civilians perished under Saddam’s nasty and brutish regime. No doubt that count would have climbed considerably had he remained in power.
Saddam would have undoubtedly continued to give safe harbor to terrorists. When the late al Qaeda leader Abu Musab al-Zarqawi was wounded in Afghanistan in 2002 he headed straight for Baghdad. Saddam also provided safe haven to both Abu Nidal and Abu Abbas, who were infamous for the murder of 18 civilians at the Rome and Vienna airports and the attack on the Italian cruise ship Achille Lauro in 1985, respectively. Let us also not forget the $25,000 checks he would write to the families of Palestinian homicide bombers.
I believe that if the Bush Administration had chosen not to set Saddam in their sights the Democratic Party and some human rights organizations would have lobbied the Bush Administration to remove Saddam on humanitarian grounds. Much in the same way the Bush Administration is today being lobbied to intervene militarily in the Darfur region of Sudan.
Again, I am under no illusion that when the clock strikes ten that all is well in Baghdad. But whenever I think things are really bad in Iraq I think of the millions of Iraqis who risked their lives on three occasions in 2005 to vote for their own representatives. This tells me that a majority of Iraqis want this struggling democracy to work. This above all else is why I have not given up on the War in Iraq.
Democracy does not come easy. One can imagine the despair an American family might have endured in 1780 in the midst of the Revolutionary War that appeared to have no end in sight. Granted King George III did not order the United Empire Loyalists to strap belts filled with explosives around their waists. But nonetheless life in America’s nascence was far from idyllic. Consider this passage from Ronald Reagan’s famous “City on the Hill” speech in 1974, commenting on the men who signed the Declaration of Independence:
Fifty-six men, a little band so unique – we have never seen their like since – pledged their lives, their fortunes and their sacred honor. Sixteen gave their lives, most gave their fortunes and all of them preserved their sacred honor. What manner of men were they? Certainly they were not an unwashed, revolutionary rabble, nor were they adventurers in heroic mood. Twenty-four were lawyers and jurists, 11 were merchants and tradesmen, nine were farmers. They were men who would achieve security but valued freedom more.
And what price did they pay? John Hart was driven from the side of his desperately ill wife. After more than a year of living almost as an animal in the forest and in the caves, he returned to find his wife had died and his children had vanished. He never saw them again, his property was destroyed and he died of a broken heart – but with no regret, only pride in the part he had played that day in Independence Hall. Carter Braxton of Virginia lost all his ships – they were sold to pay his debts. He died in rags. So it was with Ellery, Clymer, Hall, Walton, Gwinnett, Rutledge, Morris, Livingston, and Middleton. Nelson, learning that Cornwallis was using his home for a headquarters, personally begged Washington to fire on him and destroy his home – he died bankrupt. It has never been reported that any of these men ever expressed bitterness or renounced their action as not worth the price. Fifty-six rank-and-file, ordinary citizens had founded a nation that grew from sea to shining sea, five million farms, quiet villages, cities that never sleep – all done without an area re-development plan, urban renewal or a rural legal assistance program.
I invoke Reagan to illustrate this point. If the United States and Coalition troops had not removed Saddam Hussein then Iraqis would not have a had a chance for freedom. It is that simple. Yes, it is quite possible that those who drafted Iraq’s Constitution might not be prepared to make the sacrifices that those who signed the Declaration of Independence did. Yes, it is possible that this endeavor will end in failure. But that is the price of freedom. Having the chance to fail is better than having no chance at all. So what if U.S. and Coalition troops had not removed Saddam? Then the people of Iraq would have no chance at all.
aargold24@hotmail.com
http://www.poetsforthewar.org
Read more articles by Aaron Goldstein
Lots of good points. This article reminds me of few important principles that some Americans tend to ignore.
The first is that America is not the problem in Iraq, Iraq was and continues to be the problem with Iraq. If we had not upheld the UN Security Council's threats, the world and Iraq would have continued to be a danderous place. Now, with American forces there, the voices of a liberal, democratic, and capitalistic Iraq can speak. Of course there is danger, exercising freedom of speech often is - even in this nation. We have a choice, either we confront the danger or we ignore the danger - pretending there is no danger is not an option.
The second is that despite the modern shell game the Democratic Party plays with the nation's principles and values, liberals often support war and violence against other regimes. And they would again as Mr. Goldstein points out. The problem isn't that America is at war against jihadist in Iraq, the problem for liberals is that they are unable to gather any 'I feel your pain' points in the eyes of old Europe.
In conclusion, a world that ignores 17 UN Security Council resolutions ording Iraq to show evidence of thier disarmament, that ignores the torture and violence of Saddam Hussein, that ignores daily violence against foreigners, women, and children in Iraq, that ignores the shooting down and capturing of US pilots while Iraq was 'peaceful,' that ignores the quite violence of rape rooms is not a world in which American republican and democratic ideals can co-exist peacefully. This is the world that so many liberals which they lived in not for any larger principle or virtue, but rather for pure political ease and their own desire to look good in the eyes of the world/Europe.
Comment by msa4liberty | March 23, 2007
msa4liberty,
Would you kindly point out to me the article and section of the Constitution that authorizes the US to enforce UN (or any supra-national organization) mandates. I keep looking through the copy I have, and I can't find that authorization anywhere? It would be much appreciated.
Aaron,
"If the United States and Coalition troops had not removed Saddam Hussein then Iraqis would not have a had a chance for freedom. It is that simple."
Not our job. It's that simple. Perhaps you could do the same thing I asked msa4liberty to do. Please point out to me the article and section of the Constitution that authorizes us to overthrow foreign regimes we don't like. Thanks.
Comment by Dan Phillips | March 23, 2007
You don't make a good case defending the error we made in invading Iraq. Yet, we did it. It's our mess now.
Greg
Comment by GreginNY | March 23, 2007
"Would you kindly point out to me the article and section of the Constitution that authorizes the US to enforce UN (or any supra-national organization) mandates."
Article II Section II:
"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States …"
The President, acting on behalf of the nation, has the power to send troops to Bosnia or Baghdad to support his policies, or act in support of another governing body. The president can use this authority for any matter he deems in the national interest.
Comment by Phillip Ellis Jackson | March 23, 2007
"The President, acting on behalf of the nation, has the power to send troops to Bosnia or Baghdad to support his policies, or act in support of another governing body. The president can use this authority for any matter he deems in the national interest."
Phil, there is not a SINGLE Founding Father who would endorse that view. Madison actually argued for no standing army. That Presidential Supremacist position is entirely novel. The President can not commit troops willy nilly outside of emergencies (such as pursuit of the enemy after an attack). There must be a Declaration of War. Why would the authority to declare war be granted to Congress if it was meaningless. But troops are for National Defense and nothing more. Foreign adventuring is not authorized. You surely can not believe that that is what the Founding Fathers had in mind.
Comment by Dan Phillips | March 23, 2007
Article I. section 8
…To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;…
Is our involvement in Iraq executing the laws of the union? Nope. Is it suppressing insurrection? Nope. Is it repelling invasion? Nope. Hence, toppling dictators in foreign countries who have not attacked us and where no war has been declared is clearly not a constitutionally authorized function of the Federal government.
Comment by Dan Phillips | March 23, 2007
"A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence agst. foreign danger, have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people."
So said James Madison. But what did he know? He was just the Father of the Constitution.
Here is a good article. Pay particular attention to the section headed Founding Fathers.
http://www.fff.org/freedom/fd0409a.asp
Comment by Dan Phillips | March 23, 2007
“The President can not commit troops willy nilly outside of emergencies (such as pursuit of the enemy after an attack). There must be a Declaration of War.”
This is what happens when a person tries to equate his own personal opinions about the wisdom on a military action with the issue of a president’s Constitutional authority, as Commander in Chief, to commit troops to battle — which was the original question he raised: “Would you kindly point out to me the article and section of the Constitution that authorizes the US to enforce UN (or any supra-national organization) mandates.”
There was no “Declaration of War” by the US Congress in Korea, Vietnam, Bosnia, Gulf War I, Afghanistan, or Iraq. And yet, in each case U.S. troops were sent by the Commander in Chief into battle. Only Afghanistan meets the hyper-technical definition of pursuing an enemy after an attack, and even then no formal Declaration of War against the country of Afghanistan was sought (or presumed to be needed).
One problem with the honesty of those opposing present U.S. actions in the Middle East and elsewhere is that they find it difficult to gain allies by expressing the belief that the Iraq War is wrong because the people of Iraq are the wrong color and/or “not members of my tribe”. This allows them to dodge issues of whether going after a state sponsor of terrorism is in the U.S. national interest by focusing the matter exclusively on nation building, or resorting to bogus arguments that the President has no authority to send troops into battle unless the Congress formally declares war.
It’s clear that those on the Far Right and the Far Left oppose the Iraq war, though for different reasons. The Far Left hates Bush, and therefore opposes everything Bush does. The Far Right has a litmus test involving kith, kin, and ethnic origin that defines which actions they support, (not to mention if the ancient Romans didn’t adopt the tactic, it must be invalid). The Middle East does not meet the standards of Western Tribalism, so any action there is automatically opposed.
Fine. Argue the points on this level, but don’t insult the intelligence of every person who’s taken an introductory high school political science class by insisting that the president has no constitutional authority to send troops into battle.
If you want to make the case that Madison wouldn’t have bombed Iraq, I’ll point out that Madison didn’t know what an airplane was. One of the reasons the president’s Constitutional authority was defined by a dozen or so words instead of a dozen or so pages is that the Founding Fathers realized that they couldn’t micro-manage events 200, 300, 500 or 1000 years into the future. It’s why they didn’t define what a threat to the U.S. must be before the president could act. They left that calculation to the people who would be alive during these times, giving them a constitutional framework within which to make these decisions.
If Declaring War was the only Constitutional way to commit troops to battle outside the nation’s borders, Truman, Eisenhower, Kennedy, Johnson, Nixon, Ford, Bush 41, Clinton and Bush 43 would have been impeached. The fact that they weren’t — and even in the hyper code-pink era of today’s anti war activists Bush 43 still faces no formal charges of impeachment — tells us everything we need to know about the constitutionality of this issue. Which, I again remind you, was the original issue Dan Phillips raised.
What Dan has done is co-mingle his own personal policy preferences on the issue with the matter of that issue’s Constitutionality. Argue all you want about whether invading Iraq was the right or wrong policy. But don’t tell us the president’s right to commit troops into battle for any reason he believes valid (remember Bosnia!?!) is clearly unconstitutional unless it is accompanied by a formal Declaration of War.
I have no intention of using any more space in this comment section to defend the Bush Middle East Policy. You can refer to my previous essays if you want to see my reasoning on this subject. I’ve found it to be a waste of time to argue politics with true believers who can’t separate their own opinions from objective facts.
I just wanted to set the record straight for those very bright fifth graders peeking in on the conversation who haven’t yet taken a high school civics class that there is a difference between what the Constitution actually says/permits, vs. what one person thinks a Founding Father might conclude about a present action, vs. what a person born in the 20th century thinks about an event or activity today. The first involves a set of facts. The following two are opinions, not facts.
And everyone knows what they say about opinions. Like a certain body part, everyone has one.
Comment by Phillip Ellis Jackson | March 24, 2007
My longer reply appears to be hung up in the ethers somewhere, so until it shows up, here is the cliff notes version.
Dan — One of the reasons you can’t win an argument is because you start off making a supposedly-factual statement (there is no Constitutional provision to allow US troops to be committed to foreign combat short of a formal Declaration of War), and when I show you where that authority is, you want to change the subject and argue an opinion as to whether Madison would have done it and/or the Romans thought it was a good thing.
Just admit that your original factual assertion was wrong, and then state your opinion about whether we should have invaded Iraq. Someone may want to debate you on this (I don’t; I’ve already stated my position in numerous essays, and find little value in debating true believers on a subject that simply involves their opinion). But don’t insult all our intelligence by insisting that you are putting forth a clearly recognized and established constitutional principle when all you are doing is offering an opinion.
Comment by Phillip Ellis Jackson | March 24, 2007
msa4liberty:
"Would you kindly point out to me the article and section of the Constitution that authorizes the US to enforce UN (or any supra-national organization) mandates. I keep looking through the copy I have, and I can’t find that authorization anywhere? It would be much appreciated."
It's in the same section that authorized our bombing Bosnia.
Comment by sedonaman | March 24, 2007
"There was no “Declaration of War” by the US Congress in Korea, Vietnam, Bosnia, Gulf War I, Afghanistan, or Iraq. And yet, in each case U.S. troops were sent by the Commander in Chief into battle. Only Afghanistan meets the hyper-technical definition of pursuing an enemy after an attack, and even then no formal Declaration of War against the country of Afghanistan was sought (or presumed to be needed)."
Phil, dogmatically stamping your feet and declaring your intellectual superiority does not make your argument correct. ALL THE ABOVE ACTIONS WERE BLATANTLY UNCONSTITUTIONAL. The fact that they happened doesn't make them de facto OK. The reason those Presidents were not impeached is because NOBODY BUT THE "FAR RIGHT" CARES ABOUT THE CONSTITUTION ANY MORE.
What then do you suggest is the purpose of a declaration of war? I am not questioning that the President is the CiC. But first of all, the point of making a civilian the CiC was to reign in the use of troops, not expand it. And the troops are for national defense. This was clearly the intent of the Founders. Please find me one Founder who supports your view.
You are the one mixing your policy preferences with the Constitution. If not you will find me a Founding Father.
And what the heck does “tribe” have to do with this discussion? For example, paleos were not in mass saying we should go to war in Bosnia to support the Serbs because they are Christians. We said we ought to stay out of Bosnia on conservative, small government, anti-intervention grounds.
Comment by Dan Phillips | March 24, 2007
Dan Phillips:
"…the point of making a civilian the CiC was to reign in the use of troops, not expand it."
How do you arrive at this conclusion?
“There was no ‘Declaration of War’ by the US Congress in Korea, Vietnam, Bosnia, Gulf War I, Afghanistan, or Iraq.”
If you want to know what the Founding Fathers would have done, you might determine if Congress declared war on the Barbary Pirates in 1801. A fair number of the Founding Fathers were still alive then. Did Congress ever declare war against the Confederacy? What about Russia in 1918 when the president sent troops there, or Korea in 1871? Just asking.
What I find interesting about your comment is that, by demanding that Bush do what the Founding Fathers would/wouldn’t do in case of national defense, you are relying on an “original intent” interpretation of the Constitution. Being a good liberal, you are probably a “living constitutionalist” when it comes to other matters.
Why not admit that, to you, the only difference between what’s being done today and what was done in the past is the occupant of the Oval Office?
Comment by sedonaman | March 24, 2007
"What I find interesting about your comment is that, by demanding that Bush do what the Founding Fathers would/wouldn’t do in case of national defense, you are relying on an “original intent” interpretation of the Constitution. Being a good liberal, you are probably a “living constitutionalist” when it comes to other matters."
Sedonaman, you obviously have not been following the ongoing feud between me and my fellow paleoconservatives and the pro-war "conservatives" like Phil. I AM NOT A LIBERAL. Everyone here will vouch for that. In fact, I am repeatedly told that I am too conservative. I am an anti-war paleoconservative. You are exactly correct that I believe in original intent. And I believe that non-intervention is the only position consistent with small-government conservatism. Interventionism is inherently big government.
"“…the point of making a civilian the CiC was to reign in the use of troops, not expand it.”
How do you arrive at this conclusion?"
By reading history.
Comment by Dan Phillips | March 24, 2007
According to Dan, Korea, Vietnam, Bosnia, Gulf War I, Afghanistan, and Iraq were all unconstitutional exercises of Article II Section II powers.
We know this as a "fact" because the US Supreme Court ruled so? No.
We know this as a "fact" because Truman, Eisenhower, Kennedy, Johnson, etc. were all impeached by Congress for violating the Constitution? No.
We know this as a "fact" because the U.S. Constitution specifically prohibits any military action outside U.S. borders unless there is a formal declaration of war by Congress? No.
It is only a "fact" because Dan continually confuses "opinion" with "facts".
When the guy you're debating doesn't even know the difference between an opinion and a fact, there's not much more to be said on the matter.
Since opinions are like the exit points of the human digestive system (i.e. everybody has one), and Dan can't tell the difference between offering an opinion and offering a fact, my only other advice is to be careful sharing a meal with him. It's unclear which orifice will be used to start the digestive process.
Comment by Phillip Ellis Jackson | March 24, 2007
Dan Phillips:
Can you please expand on how your reasoning after reading history led you to conclude that “…the point of making a civilian the CiC was to reign in the use of troops, not expand it.”?
Comment by sedonaman | March 24, 2007
I agree with Dan that nothing in Article II can be fairly interpreted to mean that "The President, acting on behalf of the nation, has the power to send troops to Bosnia or Baghdad to support his policies, or act in support of another governing body. The president can use this authority for any matter he deems in the national interest." If this were true, there would have been no point in delegating the power to declare war to Congress.
That said, I am convinced that by "authorizing the use of force" in Iraq, Congress effectively satisfied the constitutional requirement. The distinction between a formal declaration of war and a congressional authorization to use force is not great enough to put the two in entirely separate categories.
No constitutional restriction is placed on Congress' power to declare war, and the power may therefore be exercised on whatever grounds Congress deems sufficient–including the enforcement of UN resolutions. I agree again with Dan, however, that the President may not undertake this responsibility on his own without the explicit consent of Congress. There are certainly military functions the Commander of Chief may perform with Congressional approval, such as using the Navy to ensure the safe passage of American ships (though there was originally controversy over a standing army, there was no controversy over a standing navy). In fact, I would argue that the President has the power to send troops anywhere on his own authority as long as they do not engage in "war." (When Saudi Arabia asks for the United States to send troops to its Iraqi border, the President need not secure Congress' explicit approval–though Congress does have the power to stop it). But commencement of what the Law of Nations defines as "war" is the prerogative of Congress, not the President.
I sense this argument becoming another paleo/neo grudge match. I don't see the need for it. The issue at hand is fundamentally about the meaning of a text–the Constitution–and politics should have no impact. Keep in mind it is possible to belive in the righteousness of a war while doubting its constitutionality, or to believe in the constitutionality of a war while doubting its righteousness.
Comment by Katzen | March 24, 2007
Phil, I do not need the Supreme Court to tell me what the Constitution means. I believe in original intent, and look at what the Founders intended. Did the Founders intend the American military to be used for policing the globe rather than national defense? Which ones? Please provide me some quotes or other documentation.
P.S. There is no need to get testy. We are just two gentlemen having a friendly discussion.
Comment by Dan Phillips | March 24, 2007
Sedonaman and Phil,
Here is a nice article by the great Ron Paul that addresses the Founding Fathers and noninterventionism. Please give it a read. Did you read the Future of Freedom Foundation article (fff.org) that I linked to above? It is also very good and very on point re. the Founders.
http://www.lewrockwell.com/paul/paul375.html
I am prepared to bombard you with quotes from the Founders if you would like.
Comment by Dan Phillips | March 24, 2007
The below is from another article by a true defender of the Constitution, Ron Paul. Pay particular attention to the qoute from Madison. Phil, are you going to tell me that Madison doesn't know what he is talking about re. the Constitution?
"The role of the president as Commander in Chief is to direct our armed forces in carrying out policies established by the American people through their representatives in Congress. He is not authorized to make those policies. He is an administrator, not a policy maker. Foreign policy, like all federal policy, must be made by Congress. To allow otherwise is to act in contravention of the Constitution.
Library of Congress scholar Louis Fisher, writing in The Oxford Companion to American Military History, summarizes presidential war power:
The president's authority was carefully constrained. The power to repel sudden attacks represented an emergency measure that allowed the president, when Congress was not in session, to take actions necessary to repel sudden attacks either against the mainland of the United States or against American troops abroad. It did not authorize the president to take the country into full-scale war or mount an offensive attack against another nation.
But it’s not simply the decision to wage war that is left to Congress. Consider also the words of James Madison:
Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws (italics added).
So Congress is charged not only with deciding when to go to war, but also how to conduct – and bring to a conclusion – properly declared wars. Of course the administration has some role to play in making treaties, and the State Department should pursue beneficial diplomacy. But the notion that presidents should establish our broader foreign policy is dangerous and wrong. No single individual should be entrusted with the awesome responsibility of deciding when to send our troops abroad, how to employ them once abroad, and when to bring them home. This is why the founders wanted Congress, the body most directly accountable to the public, to make critical decisions about war and peace.
It is shameful that Congress ceded so much of its proper authority over foreign policy to successive presidents during the 20th century, especially when it failed to declare war in Korea, Vietnam, Kosovo, and Iraq. It’s puzzling that Congress is so willing to give away one of its most important powers, when most members from both parties work incessantly to expand the role of Congress in domestic matters. By transferring its role in foreign policy to the President, Congress not only violates the Constitution, but also disenfranchises the American electorate."
http://www.lewrockwell.com/paul/paul355.html
What's that I hear? Oh, I think it is the sound of Phil getting spanked.
Comment by Dan Phillips | March 24, 2007
Dan.
When we originally invaded Iraq during the Gulf War, a ceasefire was arrived upon under which Saddam would accept all UN resolutions imposed upon him. The ceasefire was made with the US, but Bush (41) decided to let the UN do the micromanaging.
The President is required to carry out all foreign treaties and agreements unless he personally changes them. Under that, he is allowed to attack Iraq directed (without asking the UN) for violating it's ceasefire with the US. He is also allowed to attack Iraq for the direct agression against our armed forces.
Your case, as always, doesn't hold water.
Comment by WolvenBear | March 25, 2007
Dan:
Reading is Good.
Reading accompanied by thinking is better.
It is only "puzzling" to someone that Congress has "given away" so much power when the power hasn't been given away at all.
I'm still not going to sit at the same breakfast table with you until you learn how to distinguish a fact from an opinion.
Comment by Phillip Ellis Jackson | March 25, 2007
Katzen:
While Congress has inserted itself into the President’s Article II authority in the post Viet-Nam era (through such things as the War Powers Act) — with the Executive branch allowing this to happen — this is more of a political compromise based on exigent issues than a reflection of the Constitutional separation/division of powers. Years from now, when conditions change, this Congressional element will be strengthened or reduced through the normal legislative/political process, not by Constitutional amendment.
Politics aside, there is really no Constitutional restriction on the President committing the nation to war. That war — once started — may be shortened by Congressional action (i.e. withholding funds), but if Bush wanted to attack Peru tomorrow, he could do it as long as his military commanders obeyed the order; (another “political” check on his power).
This confusion arises because in the pre-space age era there was plenty of time to make, analyze and/or counteract a decision. Decide to invade Peru on January 1, and it could take 6 months to assemble the troops, train and arm them sufficiently, and transport them to that country. However, by the latter part of the 20th century we could make a decision on Monday, and fly a strike force to any destination in the world within 36 hours to begin the attack, owing to our technology and overseas bases.
But as prime evidence in support of my contention that the Executive branch can go to war without any Congressional notification at all, let alone any debate on the topic, look no farther than this example. NORAD picks up on radar what it deduces to be a number of ICBMs headed toward the US, striking in 20 minutes. Without having a missile land on US soil, without waking a single member of Congress from their sleep, the Commander in Chief can launch an attack against the presumed source of those presumed missiles.
Presidents in recent times have chosen to involve Congress in any decision to commit troops overseas for essentially political reasons. If the policy fails (or the media succeeds in convincing the public that it is a failure), then the president suffers politically; thus he elects to share the risk (and blame) by going to Congress.
Remember, the only point I’m arguing is that there is no Constitutional requirement for the President to either justify his decision beforehand to commit US troops to battle, or to seek Congressional approval before committing troops overseas. There are very real political reasons and consequences for doing both, however. But politics is not Constitutional fiat. The Article II Section II powers therefore provide the answer to the question: “Would you kindly point out to me the article and section of the Constitution that authorizes the US to enforce UN (or any supra-national organization) mandates?”
Politics, not Constitutional limitations, is the only thing that circumscribes the power of the President (as Commander in Chief) to order US troops into combat.
Take care,
Phil
Comment by Phillip Ellis Jackson | March 25, 2007
Its hard to argue that removing Saddam wasn't a good thing. But you can argue it wasn't the smartest move. In the coming years with the Shiite/Sunni bloodpath sure to come and the resulting chaos allowing islam to foment more terrorism we could be worse off than with Saddam. Saddam didn't have any military to speak of. He was contained, WMDs yes I agree they were there but unless they were nukes they couldn't do anymore damage than a 777 full of jp8.
A lot of Bush's decisions are based on the naive assumption that arab/persian muslims have any ability to behave in a rational manner. We like to think of the bombers as outsiders when in reality they are the men and women next door to each other in Baghdad and Sadr city, actively and passively supporting the murders because they honestly believe in the violence and it will continue to damage the great satan (US).
Staying the course for some nebulous concept of victory only increasingly antagonizes the radicals. Sooner or later we will suffer another large terrorist attack and the nation will look at our policies and wonder were they all for naught? Realistically other than punishing and the hanging video of a brutal thug (a video I thought should have been played over and over again for everyone in the world to see) we still have not ridden the world of the root cause and prime motivator of our enemy; islam. Until we learn to equate islam and nazism and treat it as such we will be at war until long after our grandchildren have passed. That is the sorry legacy of this current campaign.
Comment by Dean | March 25, 2007
Phil,
I'm still waiting on those quotes from the Founders to back up your point of view. That is what debate entails. Actually backing up your opinion and trying to establish it as a fact. So are you asserting that Madison was wrong about the Constitution? What part of his quote was not clear to you?
Katzen,
Thanks for the wise words. I just disagree with you on the "use of force" resolution. That might be adequate for a policing action when we are not at war with another sovereign nation. But attacking a sovereign nation requires a declaration of war. The power to declare war is "vested" in Congress. Congress can not cede that decision to the President as they did in the "use of force" resolution. That would be like if Congress passed an "authorization" for the President to raise taxes if the need arises. They can't do that. Revenue issues must arise in Congress (the House).
WolvenBear,
We should not have fought the first Gulf War. The invasion of Kuwait was Kuwait's problem, not ours. Then we should not have been enforcing UN mandates. We can not cede foreign policy to the UN for the same reason I stated above. The power to make policy is "vested" in Congress. They can not rightfully cede it to another entity. (For the record Phil, the issue of treaties is complicated so the last few sentences contain a certain amount of opinion.)
Comment by Dan Phillips | March 25, 2007
Sedonaman:
Just to help set the record straight, Dan is not a liberal. As a self described member of the "Far Right" (comment 11), what you are seeing here is the phenomenon known as "convergence", where views of the far Left and Right come together on a policy matter (i.e. get the US out of Iraq), but arrive at that point for different reasons.
Another similarity is the frequent use of quotes and/or web links by both sides. Using these as a way to bolster an argument is something everyone does, but there's a tendency by these folks to make them THE argument. If XYZ said it, then that's all there is too it, and no further analysis is needed.
Politics makes strange bedfellows.
Take care,
Phil
Comment by Phillip Ellis Jackson | March 25, 2007
Dan Phillips:
So, what did Madison have to say about our war with the Barbary Pirates? Did he support it or no?
Re: Your fff.org link above: “As John Quincy Adams put it in his July 4, 1821, address to Congress, America ‘does not go abroad, in search of monsters to destroy.’”
What would Adams do if the monsters came here to destroy the US?
“More and more people are finally recognizing that the anger and hatred that foreigners have for the United States is rooted in morally bankrupt, deadly, and destructive foreign policies . . . ” (fff.org)
If you were to ask the average foreigner on his street who makes this claim what it is about American foreign policy that makes him hate the US, the most you will get is some drivel about our support for Israel. Other than that and being about as informed as the average man on the American street, they probably know nothing about American foreign policy, and if they do, it's been severely modulated by their anti-American media. If I am wrong in this, please give me a link that has an average foreigner on the street explain just what it is he objects to (our support of Israel excepted). Does he object to the US providing his country with childhood vaccinations to stamp out diseases? With food when they are starving? With aid to help them recover from a natural disaster? Just exactly what is it? (Once, just once, I would like to see someone round up a large number of anti-American demonstrators and count their childhood vaccination scars.)
But I digress.
To sum it up, it sounds to me that what you're saying is in order to be a conservative you also have to be an isolationist, or, more politely, one who "avoids international entanglements." All that was fine when two oceans sufficed to separate us from monsters, but that world disappeared long ago. As Jefferson said about paying tribute (a form of appeasement) to the Barbary Pirates, it only invites more demands. If fff.org is correct when it says not following the Founding Fathers’ foreign policy today is the greatest threat to our freedoms, why is appeasement so popular?
Comment by sedonaman | March 25, 2007
Phil,
You wrote, "Politics aside, there is really no Constitutional restriction on the President committing the nation to war."
Then what could possibly be the purpose of explicitly giving Congress the power to declare war? It is a given that Congress can cut off funding, but the Constitution clearly gives the legislative branch more than just a power to negative the executive's decision to go to war.
Of course the President could physically begin a war if his military commanders obeyed his orders. And the Supreme Court could physically rule that the First Amendment protects rape, as long as the police and lower courts will respect that ruling. That doesn't make it an iota more constitutional.
I agree that there is a great deal of grey area in this field of constitutional law, and that the actual balance of presidential/congressional power has fluctuated throughout our history. The limits of that grey area, however, seem to me to be defined by the Pacificus-Helvidius debate (Hamilton and Madison, respectively). Hamilton argued on behalf of presidential power in foreign policy, and Madison argued on behalf of congressional power. The problem with your position is that it seems to me to be arguably more Hamiltonian than Hamilton's own views.
I agree fully with Hamilton that "the Executive in the exercise of its constitutional powers, may establish an antecedent state of things which ought to weigh in the legislative decisions [to declare war]." But this is as far as Hamilton is willing to go. And, again, if that power to "establish an antecedent state of things" includes the power to order actual acts of war where no state of war exists (either by congressional declaration or an enemy's prior act of war), then Congress' power to declare war is pointless.
You are right, however, that this is essentially a "political question." If Congress judges that its constitutional authority has been usurped, it can cut of funding or impeach the President. If the President is willing to risk that, let him risk it. And if the President feels that a congressional declaration of war is unwarrented, he can always not carry it out. The problems can be resolved by recognizing the constitutional sovereignty of each branch within what Thomas Jefferson called its own "sphere of action." The President can resist an encroachment by simply ignoring it, and Congress can resist an encroachment by impeachment and the power of the purse. If neither exercises its means of resistence, then any encroachment has essentially been consented to.
But it still may be an encroachment.
Comment by Katzen | March 25, 2007
Note: By "political question," I refer to the traditional constitutional doctrine concerning how certain constitutional issues are to be resolved without the imput of Supreme Court–I do not intend to intimate that I think the matter at hand is beyond the scope of the constitution.
Comment by Katzen | March 25, 2007
WolvenBear,
You wrote, "The President is required to carry out all foreign treaties and agreements unless he personally changes them."
Let's say Democrats control the Presidency and the Senate, but Republicans control the House of Representatives. And let's also stipulate that this is a particularly spirited group of Republicans, who have actually made a serious committment to thwarting the Democratic domestic policy agenda.
So the President and the Senate hatch a plan to make a treaty with France whereby the United States will raise taxes to 75% on all incomes over $10, provide universal health care, universal dental care, universal pet care, and public funding for abortion up until the 3045th trimester.
In the next election, a Republican becomes President. Is he required (let alone permitted) to carry out any of this without the consent of the House of Representatives?
There are, in fact, recognized restrictions on a President's power to carry out treaties. Nothing in the treaty may be interpreted to require anything contrary to the Constitution. And, even more pertinently, nothing in the treaty may be interpreted to effectively amend the Constitution by transfering powers delegated to Congress to the President.
Comment by Katzen | March 25, 2007
Katzen:
It is an interesting question you pose: “Then what could possibly be the purpose of explicitly giving Congress the power to declare war?” Here’s how I’ve always viewed the matter.
The Founding Fathers created a political/legal document (the Constitution) to replace the ineffective Articles of Confederation, and in doing so ground the principles espoused in the Declaration of Independence in practical reality (instead of leaving them as purely philosophical concepts).
Thus you had the core document ratified — and then immediately the first 10 Amendments, which for political reasons needed to be treated as an adjunct to the core document. The Amendments have the same force of law as the original provisions, but politically had to be “added on” rather than simply wrapped into the base document as a constituent element of it.
Thus, from the outset the Constitution has always been a legal framework operating within a political environment. It provisions were kept short and simple to give guidance but not overly-constrain, because the founders realized that to make our system of government work in the real world, there needed to be some flexibility to deal with real-world issues not fully anticipated in the 18th century. Which brings us to your question.
Many of the original framers of the Constitution were subsequent leaders in the new US government. Presumably, they would have full knowledge of their own “intent” about the provisions of the Constitution. But (now speaking in part to the points Dan continues to focus on by referring to what Madison believed), the Supreme Court still ruled certain laws “unconstitutional” that these framers themselves helped to create. In fact, the entire right of Judicial Review is something inferred from the Constitution, not stated expressly. So what are we to conclude?
A. These Framers turned legislators deliberately passed law(s) that they KNEW violated the Constitution ? Or
B. The Framers turned legislators believed they were acting constitutionally — but the specific facts of a given case aren’t necessarily as clear-cut as those who speak about what the Constitution IS or ISN’T would have us all believe?
I believe that “B” provides the better answer. The Constitution as a framework gives guidance, but specific issues may call for legitimately different conclusions. Clearly the Constitution gave Congress the authority to issues specific declarations of war, but it also gave the President power to commit troops to battle without first having a formal declaration of war.
Where the line gets drawn between the two authorities falls in the political realm. It worked one way until Viet-nam, at which time the War Powers act was made law (over a presidential veto). Significantly, each and every president since Nixon has not recognized the War Power’s Act as constraining executive authority — saying that such a constraint is unconstitutional — and they even state so when doing things that they say “relate to” provisions of that act without expressly saying that they are complying with it. The Executive Branch still believes that the WPA is unconstitutional, but neither the President nor Congress has forced a constitutional showdown over this, so in the end where the line gets drawn again remains a political — not Constitutional — issue.
And this is my contention, that the practical policy constraints of the president’s ability to commit troops to foreign combat are political, not constitutional issues. And, I think that the Constitution was deliberately designed to make it this way.
If Congress feels that the president has abused his CiC authority, it has its Declaration of War authority to serve as a constitutional basis to challenge him. This is the reason why Congress was given that authority; as political leverage, not as a formal cut-and dry role.
By focusing only on the “formal declaration of war” (or not) by Congress as the issue, one misses the fact that the Declaration of War provision was put in the Constitution as a check against unbridled presidential authority as the Commander in Chief. It gives Congress constitutional leverage to fight a political battle with the Executive branch over where the limits of CiC authority actually extend. These limits are not set in stone, but change as conditions (and corresponding political will) changes. Theoretically, as I stated earlier, there is nothing in the Constitution to limit the president's authority to order troops into combat for any reason, other than the political dynamics I've been speaking about here.
If the president feels that Congress is overstepping its authority and impeding his CiC powers, he can order troops into combat without first seeking their explicit approval simply by issuing an Executive order. The military — as another “political” check — will obey that CiC order unless it is egregiously wrong (i.e. President Rodham-Clinton decides to attack Canada because she’s cranky that morning). Short of that, if Bush was to order the 6th fleet to bomb Sudan tomorrow, in all likelihood they’d do it without waiting for Congress to sign off too.
The constitutional showdown (if any) would come after the fact as a political battle takes place, using the Constitution as a weapon, where Congress attempts to punish the president for a failed policy. If the action succeeds, Congress will not act to impeach the president, but rather seek to share the glory. Same act, same Constitution, but entirely different consequences because the matter is fought as a political issue first and foremost, just as the framers intended by dividing this authority without clear cut lines of division and obligations/responsibilities.
This, I believe, accurately reflects the way the world actually works, and how the Constitution and its various provisions become involved in granting or withholding authority for such actions. Once again I point to the example I raised about the incoming missiles seen on radar. It could all be a giant computer glitch (meaning, we’re not being attacked). Yet there isn’t a military person who wouldn’t obey the order to fire our weapons before these missiles hit US soil. And while Congress may later attack the president for starting a war based on “faulty information”, this would be a political response, not a constitutional one (even if impeachment was the weapon to attack him).
It WOULD be a constitutional matter if Congress insisted that it be consulted in advance of any launch of missiles and meet and declare war in accordance with its constitutional authority. But Congress has not done this. It concedes the right for a president to act independently, and even start a nuclear war, because given the way the world operates today, there is no practical way to formally declare war once enemy missiles have been launched.
Hope that clarifies my thinking on this matter. It’s not an encroachment. It’s the way the system was purposely designed to operate. It's also why I see the issue so differently from Dan, who's focusing exclusively on language while, in my opinion, completely disregarding how the Constitution was constructed and intended to function due to that construction.
Phil
Comment by Phillip Ellis Jackson | March 25, 2007
Phil,
You are quite correct about the way this constitutional dilemna plays out in practice. You might even be right about the Framers' intent being to intentionally create confusion, though I think it is more likely that the natural process of creating law (debating the exact wording of a text until language is found that all sides believe can be interpreted to mean what they want) yielded what we have. The primary difference between your belief and mine is that your belief regards the grey area as intentional, and mine regards it as an inevitable by-product of the political nature of law-making.
According to Aristotle's law of the excluded middle, P (where P is any proposition) or not P. (This is not the same as saying, "Black or white"–it is simply saying, "Black or not black"). This elementary principle of logic applies to constitutional propositions as well as any other propositions. A President's proposition that he may initiate an act of war against another nation with which the United States is not in a state of war is either constitutional or not constitutional. There may be debate. There may be good arguments for both sides. But ultimately one is forced to choose–constitutional or not constitutional.
It follows that in disputes where the President claims his action is constitutional and Congress claims it is unconstitutional, one party must be right, and the other must be wrong–or at least, one cannot logically say that neither is wrong. If it is constitutional for a President to initiate an act of war against another nation with which the United States is not in a state of war, then Congress would be abusing its "leverage" to ever claim that the President has overstepped his constitutional authority.
So, yes, the delegation of the power to declare war to Congress does give the legislature constitutional leverage over the executive, but according to your formulation of executive power, there is no way that I can see for Congress to exercise that leverage without abusing it. Is there, in your mind, a hypothetical instance in which Congress could accurately say that a war was commenced in violation of the Constitution?
Comment by Katzen | March 25, 2007
Dan:
My last response to Katzen has helped me crystallize my thoughts about why you and I are on such different tracks. I’m not referring here to the paleo-nonpaleo debates of the past, but to the way you approach issues compared to the way I do.
As a historian, I find no fault at all with your scholarship. You are quite diligent in your research as I’ve commented a number of times. The issue I have is with your political analysis, which is quite a different thing. Political analysis requires context, and context requires one to look beyond a recitation of statements and facts.
You tend to list a series of statements, quotes, or citations about what other people or documents have said, and then as “analysis” make rather categorical pronouncements: X is “blatantly unconstitutional”; only the “’far right’ cares about the Constitution anymore”; X is a “true defender” of the Constitution, etc. This isn’t analysis. It’s opinion. And as I’ve tried to point out with some humor, everyone has opinions.
What begins to transform opinions into analysis is the way one puts facts together with context to produce defensible conclusions. You obviously believe strongly that certain things constitute “true conservatism”, and as you’ve pointed out other people share your opinions. But until you account for the context surrounding these issues, what you’ve offered is nothing more than an opinion. And opinions aren’t analysis, even if the opinion is from one of the Founding Fathers.
I don’t insist that Katzen agree with what I wrote about the purpose and function of the congressional authority to formally declare war. I believe I can defend my position (and perhaps ultimately persuade him) that it is designed to give Congress leverage and standing vis-à-vis the Executive’s Commander in Chief authority. I do this not by referring Katzen to a series of weblinks or simply quoting the Founding Fathers. Instead, I do it by looking at the construction of the Constitution, and how it actually functioned/functions as a politically-sensitive legal framework, and relate that to both past and current events and other contextual issues.
All this allows me to analyze the issue and draw conclusions that I believe can be supported by the logic of the facts as they are presented. I don’t brand people who oppose me as non-conservatives or heretics, although I do admit to calling idiots idiots from time to time who maintain things that are patently absurd despite evidence to the contrary (such as global warming advocates who maintain that the sun plays no role in natural cycles; only man is responsible for heating the earth).
You obviously hold strong beliefs as do I. But I contend that you confuse analysis with a historical recitation of facts, and further, make dogmatic statements rather than provide political analysis. Political theory divorced from practical politics is utopianism. Utopianism has a purpose in starting a debate, but it isn’t the debate. If your theories about the Constitution don’t account for the things I pointed out about the Founders own “unconstitutional” actions, or the vagaries of the CiC’s limits of authority vis-à-vis Congress, then by definition they aren’t political analysis. They are opinions.
And saying that Congress has simply abdicated its power isn’t analysis either. It’s opinion. There’s 200+ years of Congressional-Executive interaction regarding putting US troops in harms way, from the Barbary Pirates, to landing troops in Siberia after the Russian Revolution, to Grenada, to Iraq. If the common thread in all of this history, with all these different decision makers in different centuries, is that each and every Congress would not exercise its authority, then you need to make that case given the circumstances of each event. Again, this isn’t your opinion on the matter. What’s called for is an objective analysis of why Congress always sells out its authority regardless of which party is in power, which people are in leadership positions, and which threats face the nation.
I contend, as I related to Katzen, that there is a structural dynamic inherent in the Constitution itself that makes the decision to go to war a politically-influenced one, not merely a rote Constitutional one. This dynamic isn’t added on to the Constitution, but is a product of the Constitution itself. The power to declare war was given to Congress so that it would have standing in the debate and thus some constitutional and political leverage to check the CiC. Simply looking at the formal language of that Constitutional provision, or citing what Madison said about war, doesn’t address the way the Constitution actually functions through the logic and structure of the Constitution itself.
Anyway, you asked earlier for a “friendly” discussion, and this is it from my end. As a historian you are quite good. But I don’t believe that you’ve engaged in anything close to a real analysis of this issue other than to make a series of dogmatic pronouncements as if these statements in and of themselves are “analysis”.
Phil
Comment by Phillip Ellis Jackson | March 25, 2007
“So, yes, the delegation of the power to declare war to Congress does give the legislature constitutional leverage over the executive, but according to your formulation of executive power, there is no way that I can see for Congress to exercise that leverage without abusing it. Is there, in your mind, a hypothetical instance in which Congress could accurately say that a war was commenced in violation of the Constitution?”
I guess I’d focus on the words “abuse” and “accurately” in responding.
The Constitution isn’t like a civil code where the speed limit is 55 mph, the fine is $10 for every mile in excess, and radar guns can establish the precise violation. It’s a framework and guidepost with some provisions that are better defined than others, but the vast majority are still somewhat vague. Very few Constitutional provisions are rock-rib, clear cut with no countervailing or contradictory provisions, like the 35 year old age requirement for the president, or the requirement that the president be a native born citizen.
Take interstate commerce. It seems like a reasonable thing on the surface; the Federal Government can only regulate commerce between or outside the states, but not within it. And yet, today virtually nothing escapes the Federal Government’s grasp. Breathe air that crossed from California to Nevada while otherwise making your product entirely from labor and materials in Nevada, and that seems to be enough to trigger the interstate commerce regulatory powers of the Federal government.
Now many people would say that this appears to violate the original “intent” of the Constitution. And yet, the Supreme Court would disagree, and they are the final arbiters on this matter.
Then the objection would be raised that SCOTUS has assumed power it shouldn’t have. But the fact is that the Constitutional framework created by the founders, during the time some of these same founders held political power, allowed judicial review to exist and prosper.
To those who would say that all this shows that the Constitution has become perverted from its original “intent”, I would say that like it or not, the Constitution was structured to allow this possibility to happen within its framework. The guideposts didn’t require judicial review, but they didn’t automatically deny that possibility either.
So, in light of the way the Constitution was actually constructed, and in light of how it actually functions as a legal framework that is politically influenced, concepts like “abuse” and “accurate” are not set in stone. Abuse is what a majority of those operating within the Constitutions parameters are able to politically define as “abuse”. The same with “accurate”. Unless we’re dealing with a provision like the age of a president, chances are there is no single universally “accurate” interpretation of a constitutional provision.
Your Aristotle example therefore does not apply. The issue isn't a highly defined provision of the Constitution (you're 34, too young; 35, eligible), but a deliberately vague one where another branch of government also has constitutional authority. It may be black, non-black, or not a color at all! (i.e. it's not the issue you thought it was, but a different issue all together). It's not whether war was formally declared or not formally declared. It's about the president's oath of office to defend the nation and his CiC powers to do so. At least that’s how the president sees it, and he has some constitutional standing to support that position too.
So again it comes down to this. The Constitution gives both the CiC and Congress standing, and therefore political leverage, in the matter of going to war. Where differences exist, they slug it out in the political arena, using their respective Constitutional authorities as weapons and defenses. If Congress has the political will to impeach, and the Senate the political will to convict, Bush could be thrown out of office for simply talking mean to Saddam, let alone sending in the troops against Congress’ wishes.
In a political world, even one governed by a Constitution like ours, there are few absolute “rights” or “wrongs”. These are the judgments of history, and even those judgments are influenced by political ideology.
So no, I don’t think you could say categorically that X action in going to war will always be unconstitutional in every time period, for every president, for every congress. Politics will always be the deciding factor, using the Constitution as a guide to see how far one side can go, and the other can resist.
Take care,
Phil
Comment by Phillip Ellis Jackson | March 25, 2007
Katzen:
One final thing in my comment to you that I didn't pick up on. You said the system I described "intentionally create[s] confusion". A better way to view this, I think, is to say that it it part of the checks and balance philosophy that permeates the Constitution.
There is nothing in the Constitution that defines what a president may or may not use justify his decision to commit troops to battle under his CiC authority. Left unchecked, this will lead to abuses as all unchecked power does. By giving Congress standing in this matter, a check is introduced on the unrestrained exercise of that authority.
Also, the CiC power of the president is a check on the Congress' formal authority to declare war. If the nation is faced with a very real threat and Congress decides that it is just a "situation to be managed" not a threat to be confronted, the president can order troops into battle.
The consequences of all this will play out in the political arena. But Constitutionally, each side has a role to play in committing the nation to war. The fact that the dividing line between these respective authorities is not 100% clear is not a matter of fostering deliberate confusion, but rather allowing for action while simultaneously placing checks and balances on those actions.
Comment by Phillip Ellis Jackson | March 25, 2007
By the way, if anyone looking in on these comments is a Constitutional scholar with an expertise on the president and congress' respective authority with regard to declaring war and/or sending US troops into combat, I'd love to see if the way I've analyzed this holds water in your judgment.
My obvious biases, based on my own education and personal involvement in Washington politics, leads me to look at how things really work, rather than focus on abstract notions in and of themselves. I don't see how you can look at theory apart from practical politics in order to gain a true understanding not only of how something works today, but how it was intended to work by the very nature of it's construction. If there's a different view from someone with an expertise in con law, I'd like to test my analysis against it. Phil
Comment by Phillip Ellis Jackson | March 26, 2007
Lost in all this discussion (and the Iraq war debate) is what constitutes an act of war. After the cease-fire in 1991, the U.S. flew missions to enforce the no-fly zones. Saddam's AA batteries fired on them. This is an act of war; in fact, merely illuminating an aircraft with a fire-control radar is an act of war. While it may be wise to refrain from resuming a full-scale war in such circumstances, the fact remains that an "act of war" consists of more than a large-scale attack (like Pearl Harbor) or an invasion.
Comment by sedonaman | March 26, 2007
What an interesting debate! I am learning a lot about the varieties of constitutional perspectives and their underlying reasoning.
Kudos to you all.
Comment by Mountain Man | March 26, 2007
Phil,
You wrote, "Now many people would say that this appears to violate the original “intent” of the Constitution. And yet, the Supreme Court would disagree, and they are the final arbiters on this matter."
I'm sure there are people who must be livid about this statement, but I think it is true in a qualified sense. The Supreme Court has the final authority to rule on any legal case involving constitutional law. But this is a different issue than that raised by those who object to modern Commerce Clause jurisprudence. No one disputes that the O.J. jury had the authority to render a verdict, and no one has the power to overrule a verdict of "not guilty." That doesn't mean a "not guilty" verdict was correct.
I also want to defend my Aristotle example. I don't see how one can escape the idea that a President's decision to commit troops to combat without congressional authorization is either constitutional or unconstitutional. Dan claimed it was unconstitutional, and you replied that it was not unconstitutional. A act that is not not permitted is necessarily permitted.
You wrote that the various provisions in the Constitution give both the President and Congress "standing." True enough, but when two people, each with a legally meritorious argument, come before a judge with conflicting claims to a piece of indivisible property, the judge must determine that one claim outweighs the other under the law. It can't be both.
You raise a good point about an emergency situation in which Congress stubbornly refuses to declare war. But when Thomas Jefferson made the Louisiana Purchase though he believed it to be unconstitutional, he never tried to justify what he did constitutionally. He noted that in human affairs there are times when a President must act outside the law–in which case, he should do so openly, explaining why he acted outside the law, and allowing the American people to judge whether or not the exigent circumstances justified a violation of the Constitution. He should not seek refuge in a disingenuous or contrived interpretation of the Constitution (which is not to suggest that I think your interpretation is either contrived or disingenuous).
Again, I agree with you that there is grey area. But there is also area outside the grey area. There is a limit that a President can transgress. Most of us would agree that there is no inherent constitutional authority to launch a missile at the Democratic Party headquarters on the grounds that doing so would enhance the security of the United States and aid "our troops in harm's way." But it seems to me that, under your constitutional theory, we might hope Congress exercises its "leverage," but we would never call it a clear-cut violation of the Constitution ("Abuse is what a majority of those operating within the Constitutions parameters are able to politically define as 'abuse'.") I can't accept that–abuses are abuses whether or not one chooses to use the word.
To use a related example, just because Congress chooses not to impeach the President doesn't mean that the President didn't commit an impeachable offense.
Comment by Katzen | March 26, 2007
Phil,
Good Constitutional interpretation is like good Biblical interpretation. It attempts to determine what the intent of the Author/authors was, but is not wooden literalism. For example, the Bible says pluck out your eye or cut off your hand if they cause you to sin. Well God likely did not intend for us to actually pluck out our eyes. What was likely intended was to illustrate the gravity of sin and that it ought to be avoided. Likewise, some nuance is required to determine the original intent of the Constitution. That is why we also look to contemporaneous documents, the convention minutes, the Federalist Papers, etc. and not just at the document itself to determine what the intent was.
You are correct that the Constitution does not specifically spell out limits on the President committing the standing Army and Navy. But you can not conclude from that that he has free reign to do whatever he wants. That the CiC role gives him carte blanche. To do so would be wooden literalism. What you are advocating sounds like a mild version of “the Constitution is a living and breathing document” form of interpretation. If it is not spelled out, it is more appropriate to say it can’t be done because it is not granted than to say it can be done because it is not prohibited. The Constitution does spell out limits on the use of the militia as I pointed out above. Now why did they put specific limits on the militia and not on the standing Army? I am not sure. Several explanations could be advanced, and I don’t have time for that now. But the fact that similar limits were not placed does not automatically mean no limits were intended. There is no evidence that I am aware of that any of the Founders intended the US to play the role of global spreader of democracy.
Ron Paul is correct that policy is policy. There is not domestic policy and foreign policy. There is only policy. And policy is the responsibility of Congress. Hence my assertion that global crusading is unconstitutional. Nothing in Article I Section 8 grants that authority to Congress. Therefore, they don’t have it.
Why were appropriations for the Army limited to two years? That was a nod to those who opposed standing armies.
BTW, the fact that some of the Founders when later in office violated their own intent (I certainly do not dispute that) is a testimony to the danger of power, and to one of the problematic aspects of the Constitution. It is not self enforcing. Remember I am an anti-Federalist at heart.
Sedonaman,
The Barbary Pirates is an interesting case. We did not declare war against them. The North African countries did not officially declare war against us. They cut down our flag. Congress was aware of the action and voted to fund it. Perhaps a declaration of war was not thought to be needed because it was considered a policing action and not an actual war against North Africa.
Comment by Dan Phillips | March 27, 2007
Katzen –
I’m enjoying this give and take. It’s helping to crystallize the issue further. [By the way, like you, I’ll be speaking in general terms about how someone on the opposite side might perceive an issue, and my comments are not meant to be directed against you personally].
The issue I believe you’re having difficulty with is the notion that the Constitution isn’t always as cut and dry as many people think it is. This doesn’t mean that it can be anything anyone wants it to be. Rather, it relates back to the central notion I put forward: that by and large it is a legal framework whose actual meaning is influenced by the normal (and expected) give and take of the political process.
This political give and take puts “flesh on the bones”, and in doing so helps define the limits and boundaries of constitutional authority. Significantly, these boundaries can change from time to time due to the politics and political leadership/will of the people of that time.
You referred to the example of the OJ verdict. OJ was tried for violating a law that arose from the Constitutional process. He was not charged with violating the constitution itself. These constitutionally-created laws are very detailed and specific; First, Second, Third degree murder; manslaughter, criminally negligent homicide, self-defense, etc. You can make the case that there is a “right” or “wrong” decision regardless of the verdict a jury delivers, which may differ from the “right” conclusion through jury nullification, jury stupidity, or the fact that the defendant had a really good defense attorney.
But in the case of the Constitution, there is no equivalent set-in-stone right or wrong interpretation. Instead, there is a framework to address an issue (the Articles of the Constitution), and a mechanism to do so (Judicial Review). The Court may decide in one case that separate but equal is constitutional, and in another that it is not. You cannot automatically say that the Court was deliberately or obviously “wrong” in one of these two interpretations. The interpretations of essentially the same constitutional provisions were the product of the political factors of the time.
Note: by “political” I don’t mean electoral politics, although that may be an influence on SCOTUS. I mean that the Justices meet, debate, argue and compromise over what the definition of “is” is before they render a decision. And these deliberations cannot be separated from the political dynamics of the times (the ideas people believe, or the mechanism and institutions of power). The same is true of Congress and the President. Andrew Johnson was impeached for things that other presidents before him had done to varying degrees as they exercised their own presidential authority. But Johnson pissed a lot of people off with his Reconstruction policies and other actions, so he was impeached. Same with Clinton. If Bush had “lied about sex” under oath, Chuck Schumer would be leading the way to convict him rather than being Clinton’s principle apologist. The Constitution defines the process by which a president can be impeached and removed from office, and gives general guidelines as to what constitutes an impeachable offense, but doesn’t define what malfeasance in office is. It was Ford who said "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history." This is a perfect reflection of what I mean.
More recently, there’s a debate whether “bad law” that produced the Roe v. Wade abortion rights decision should be overturned because it’s bad law; or whether a bad law should be left in place — even by those who believe it is bad law — because it’s “settled law”. If the only issue was whether OJ’s fingerprints were on the murder weapon, or the radar gun clocked a driver at 56 instead of 55 mph, there wouldn’t be this kind of debate. But because the Constitution is not as detailed and specific as civil or criminal law, and because constitutional authorities can and do overlap, constitutional issues are treated differently as I described above.
Again, this different treatment isn’t an afterthought (i.e. how do we make a flawed or incomplete document work?). This different treatment from civil and criminal law is required by the very way in which the Constitution was structured and expected to work.
This again relates to the “Aristotle” issue you raised regarding my discussion of presidential and congressional authority with regard to the war. You said that “You wrote that the various provisions in the Constitution give both the President and Congress ‘standing.’ True enough, but when two people, each with a legally meritorious argument, come before a judge with conflicting claims to a piece of indivisible property, the judge must determine that one claim outweighs the other under the law. It can’t be both.”
But it can, and moreover, is! The president takes an oath of office to protect and defend the Constitution and the United States, and is given CiC powers to do so. This impacts Congress’ formal Declaration of War authority. But this same issue can also be described this way: Congress has formal Declaration of War authority. But this impact the president’s constitutional mandate to protect and defend the constitution and country, and impinges on his CiC authority.
So again I ask. If there is a clear cut constitutional authority with respect to committing US troops to combat, why is it that both Congress and the President have independent — and overlapping — authority in this area?
The answer is that the Constitution was deliberately constructed in this area (and other areas) to allow for this possibility as part of a checks and balance philosophy. We tend to think of C&B in rigid structural forms: The House initiates tax legislation, the House and Senate approve the legislation, the Executive signs it into law or vetoes it. This is true, but few issues facing a nation over the course of centuries are always so cut and dry. The Constitution was created to give guidance while giving flexibility to address the myriad of issues that come our way. Where one side is presumed to overstep its constitutional authority, the same constitution provides the mechanism to address this issue.
Your Jefferson/Louisiana purchase example is another good illustration of this. The Constitution gave Jefferson the power and authority to do this, at the same time it would have afforded Congress the power and authority to challenge this action on constitutional grounds if they were so inclined. You can make a case that Jefferson acted unconstitutionally and the Congress was complicit; but I can also make the case that Jefferson used certain authorities he had under the Constitution and the Congress of that era did not believe that he acted outside that authority.
One might say, “but Phil, in the first case it’s clear what the Constitution said on this matter. In the second case, you’re just justifying an action as Constitution because it wasn’t officially contested. A crime is a crime whether the person gets caught or not.”
This objection is dead-on correct for civil and criminal law. But the Constitution is a different animal. Because the Constitution is a framework that functions within a political environment, and unlike civil/criminal law, it gives guidance rather than is a highly detailed and specific set of regulations and laws. Which leads to the equally important issue, what each of us believes about a law’s constitutionality is in a very real sense irrelevant.
Never in my wildest imagination would I believe that there is an implied Constitutional right to privacy, or that SCOTUS would say its constitutional to seize my property for the benefit of another private individual. I can marshal my reasoning on this until the cows come home, and point out what I believe to be very real inconsistencies in the Court’s reasoning and actions. But this reasoning is not a reflection of what the Constitution actually is as a structural/functional document. The Constitution, as a guide, establishes the mechanism for deciding these issues within those guidelines. The outcomes are influenced by political considerations, and a decision is rendered. The “Constitution” is more of a process document than a rigid, clear-cut law giving text.
The “limits” you speak about are therefore process oriented, influenced by the political environment, and relate to Constitutional guideposts rather than chapter, verse, section, and subsection of criminal and/or civil law. What person A interprets as an “abuse”, person B may interpret as an abrogation of authority. [Is the War Powers Act an abuse of Presidential authority? Is the fact that several presidents have not formally challenged it in court an abrogation of their authority, even though they don’t always live up to the exact letter of that law (thus indirectly flouting Congressional will?] There is no clear cut answer on this question, as there would be if the law said the speed limit was 55 and a radar gun clocked you going 60.]
Despite how clear cut a constitutional matter may seem to an observer, the limits the President (or Congress for that matter) transgress are therefore judgment calls, not absolute thresholds. I don’t see a right to privacy in the Constitution, but SCOTUS does. And therefore it exists as a constitutional guideline, and will continue to do so until a future court interprets the constitution differently. By focusing on the “law”, you miss seeing the constitution for what it is — a process/mechanism/guideline to make law.
And this isn’t an afterthought, but rather it’s the way the Constitution was designed to function. So yes, “under your constitutional theory, we might hope Congress [or the President] exercises its ‘leverage,’ but we would never call it a clear-cut violation of the Constitution.” That determination is a judgment call made as a result of the functioning of the Constitutional process. Its outcome is not fore-ordained.
This is why I’ve always been suspicious of people who claim that X is “blatantly unconstitutional”. That is their opinion. There is a process established by the Constitution to render this judgment. And as in the case of privacy rights, etc, what “logic” tells me may not always be the case.
Consider what would be the case if this wasn’t true. If there is a “blatant” right or wrong (constitutional or unconstitutional) answer to such question, and SCOTUS rules the “wrong” way (or the President or Congress never force a constitutional showdown like with the War Powers Act to render a determination), then you are left with the logical implication of this belief: the U.S. government (as a whole) is acting illegally/unconstitutionally. You then have a responsibility to rebel.
While many people make noises about “blatant” unconstitutionality, they confine their actions to writing editorials, not taking up armed resistance (or passively resisting by not paying their taxes). They do this, I contend, because on a fundamental level they recognize that what I’ve been saying is essentially correct. Despite what their own logic tells them, despite their passionate feelings that X is unconstitutional, they intuitively understand that we’re dealing with a process and not a code book.
As you say, “just because Congress chooses not to impeach the President doesn’t mean that the President didn’t commit an impeachable offense.” That’s true. But it also may mean that he didn’t actually commit an impeachable offense. The reason is that what is “impeachable”, ultimately, is a judgment call based on the political environment of the times, as vetted through a Constitutional process that guides actions rather than sets them in stone.
Great conversation, Katzen. Thanks for your thoughtful input on this issue. I hope this further explains how and why I see the Constitution as it.
Regards, Phil
Comment by Phillip Ellis Jackson | March 27, 2007
"You are correct that the Constitution does not specifically spell out limits on the President committing the standing Army and Navy. But you can not conclude from that that he has free reign to do whatever he wants."
*** See my latest response to Katzen (it’s hung up in the filter as I write this, and may not initially appear until after this appears — depending on whether this one gets hung up too!) The president has constitutional authority in this area that overlaps with Congressional authority, and in neither case is either authority defined in sufficient detail to show where the immutable limits are. I go through in detail exactly what controls there are on these actions, making the case that we’re dealing with a guideline/framework and political will as the deciding (limiting) factors.
“The fact that some of the Founders when later in office violated their own intent (I certainly do not dispute that) is a testimony to the danger of power, and to one of the problematic aspects of the Constitution. It is not self enforcing. Remember I am an anti-Federalist at heart.”
*** My reason for bringing this forward was to illustrate why we cannot simply rely on what the Founders said about an issue to determine the “intent” of the Constitution. The Constitution is not a legal code. It is a structure/framework guidepost that allows for many possibilities. [Many possibilities does not mean “every” possibility, just to be clear.]
“The Barbary Pirates is an interesting case. We did not declare war against them. The North African countries did not officially declare war against us. They cut down our flag. Congress was aware of the action and voted to fund it. Perhaps a declaration of war was not thought to be needed because it was considered a policing action and not an actual war against North Africa.”
*** You’ve just allowed for the possibility that military action can be taken overseas, constitutionally, without a Declaration of the War. There is no definition of a “police action” in the Constitution, so it’s being done as part of the very process and dynamic I’ve been describing.
Comment by Phillip Ellis Jackson | March 27, 2007
Dan:
This short article http://memory.loc.gov/ammem/collections/jefferson_papers/mtjprece.html from the Library of Congress seems to indicate Jefferson’s active involvement in setting foreign policy with respect to the Barbary States, both as secretary of state and president. Here is an excerpt:
“ . . . When Jefferson became president in 1801 he refused to accede to Tripoli's demands for an immediate payment of $225,000 and an annual payment of $25,000. The pasha of Tripoli then declared war on the United States. Although as secretary of state and vice president he had opposed developing an American navy capable of anything more than coastal defense, President Jefferson dispatched a squadron of naval vessels to the Mediterranean. As he declared in his first annual message to Congress: ‘To this state of general peace with which we have been blessed, one only exception exists. Tripoli, the least considerable of the Barbary States, had come forward with demands unfounded either in right or in compact, and had permitted itself to denounce war, on our failure to comply before a given day. The style of the demand admitted but one answer. I sent a small squadron of frigates into the Mediterranean. ’ . . . The American show of force quickly awed Tunis and Algiers into breaking their alliance with Tripoli. The humiliating loss of the frigate Philadelphia and the capture of her captain and crew in Tripoli in 1803, criticism from his political opponents, and even opposition within his own cabinet did not deter Jefferson from his chosen course during four years of war.”
His objection to paying tribute (appeasement) was that it invites more demands, a lesson still unlearned by a not insignificant portion of the Congress today.
Comment by sedonaman | March 27, 2007
Phil, invading a country is certainly no policing action by any reasonable definition.
Here is something from James Leroy Wilson writing about Ron Paul. He says what I have been saying.
"The Constitution does authorize Congress, and Congress only, to declare war; it doesn't authorize Congress to delegate or "authorize" the decision to start war in (sic. to) the President. Paul believes the war in Iraq was wrong-headed and unconstitutional from the start, and advocates a timely and safe pull-out of American troops. Paul would also adhere to a policy of "non-interventionism," wherein the United States would not interfere in the internal affairs of other countries. Paul would end all forms of foreign aid, opposes the expansion of NATO, and advocates withdrawing America from "entangling alliances" wherein we station tens of thousands of troops in countries like South Korea and Germany that are more than capable of defending themselves.
The Congress (sic. Constitution) does authorize Congress to "raise and support Armies" and to "provide and maintain a Navy;" such powers do not belong to the President, and he has no inherent, extra-Constitutional powers as "Commander in Chief of the Army and Navy" to revoke habeas corpus, search people and their houses and effects without a warrant, or inflict cruel and inhuman punishments like torture. Paul would restore the Bill of Rights."
Actually, as an anti-Federalist I am in a somewhat awkward position defending the Constitution. I think one of its flaws is that it is too ambiguous on some matters. But on the matter of committing troops to war, I do not think it is. One of the problems that the Colonists had with the European King is that they could start wars for their own purposes on their own accord. That is why Europeans were always fighting one another even if they were often low intensity struggles. (Actually the King was more limited than we realize and the worst wars and mass holocausts [Germany, Ukraine, Cambodia, China] have all been since the advent of the post-French Revolution modern state, but that is for another thread.) So why would the Founders want to replicate that problem by granting unlimited power to the President to start wars?
Comment by Dan Phillips | March 27, 2007
“Phil, invading a country is certainly no policing action by any reasonable definition.”
*** The invasion of North Korean territory (not simply the repelling of attacks against the South in the South), without a Declaration of War, was in fact described as a “police action”. So your statement as an abstract, absolute fact is untrue. In any regard, you are offering an opinion, not analyzing the Executive/Congress’ constitutional authority to commit troops to battle.
“Here is something from James Leroy Wilson writing about Ron Paul. He says what I have been saying.”
*** With all due respect, this is more historical recitations (without context) and quotations, not an analysis of the issue we’ve been discussing.
“So why would the Founders want to replicate that problem by granting unlimited power to the President to start wars? “
*** See my previous response to Katzen about what the Constitution actually is, how it actually functions, and how these powers are checked and balanced through that process. Stating that the Constitution does not specifically prohibit the President from committing troops to combat without a formal DoW from Congress, and further stating that the president does not need to give a specific justification for his actions, and saying that the dividing line between congressional and executive authority in this matter is the subject of ongoing “political” factors, is not the same thing as saying that the President has “unlimited power”. That is your erroneous characterization of a structure, process, and dynamic that I have taken great pains to illustrate.
Comment by Phillip Ellis Jackson | March 27, 2007
Phil,
I too think this is an excellent and informative discussion, and I look forward to your response to this post.
I can't agree with your statement that “The issue I believe you’re having difficulty with is the notion that the Constitution isn’t always as cut and dry as many people think it is.” I've been very clear:
“I agree that there is a great deal of grey area in this field of constitutional law…” (post 27)
“Again, I agree with you that there is grey area.” (post 38)
Our disagreement lies in diciphering that grey area. Your claim is that certain acts by the President are neither constitutional nor unconstitutional. My claim is that this is logical impossibility.
In particular, you object to those who believe anything unconstitutional is "blatantly" so. I have not made this claim, and I would certainly not make it when talking about the issue of war powers.
Your argument seems similar to those who have disputed the Law of the Excluded Middle in recent year, arguing that there is a third possibility between "black" and "not black"–"indeterminately black." Your come close to saying that certain things are "indeterminately constitutional." But this just means that the constitutionality has yet to be determined. You say that a President may go to war whenever he pleases. I say you're wrong. You say we can both be right. That seems impossible to me. (You also wrote in an earlier post that a third possibility between "black" and "not black" is "not a color at all." That falls into the "not black" category.)
You misunderstand the point of my O.J. analogy. I was simply demonstrating that just because a decision is made by a legitimate "final arbiter" does mean that the decision must be correct. As for my Jefferson example, I was not raising the issue of whether the Louisiana Purchase was, in fact, constitutional. I was articulating Jefferson's philosophy of how President's can justify doing things they believe are unconstitutional, and of how they should present their actions to the public.
To summarize my main point, you have explained how it can difficult to determine whether 'X' is 'A' or 'not A,' but you have yet to demonstrate how 'X' can be 'A' AND 'not A,' or how 'X' can be neither 'A' nor 'not A.' My belief is that such propositions cannot be demonstrated, because they are logically impossible.
Comment by Katzen | March 27, 2007
Katzen: “you have yet to demonstrate how ‘X’ can be ‘A’ AND ‘not A,’ or how ‘X’ can be neither ‘A’ nor ‘not A.’”
Let me try it this way.
You have been focusing on the Congressional authority to declare war. As you framed the issue, war is either declared in a constitutional manner, or it is not. The issue is either A, or not A.
This, however, does not account for the fact that there is another branch of government that has constitutional authority to send US troops into battle — the Executive branch through the President’s constitutional role and responsibility as Commander in Chief, and further, the President’s oath of office to defend and protect the Constitution and the nation.
So, there are two constitutionally-sanctioned authorities who have a role in committing US troops to battle. Going to war can therefore involve two entities, the President and Congress. The constitutionality of the action is therefore not simply A or not A (i.e. to act after declaring war or not declaring war). It also involves “B” — the president’s role and responsibilities as well. You’re A/not A dichotomy does not factor this in.
Moreover, I could argue that of the two authorities, the Executive is preeminent in deciding to go to war, not Congress. [I’m not sure I’m actually prepared to state this, but for the sake of discussion, let’s see how it plays out]. The reasoning would be as follows.
1. Congress can formally declare war, but cannot actually commit troops to battle. So, while the following scenario is unlikely, it is possible under the structure and functioning of the Constitution: Congress declares War, but the president disagrees and the troops stay in their barracks. Congress huffs and puffs, but the military will not respond because their orders come exclusively from the Commander in Chief. No troops, no combat, no actual war.
2. Congress doesn’t want to go to war, and refuses to formally declare a war. The president says “okay; but as CiC I can still commit troops into battle, and I choose to do so.” Now the US is in a shooting war, even though Congress didn’t want this to happen. [It may be an unwise policy move to do this (or, given the threat, he may have acted responsibly). But the issue here isn't whether the policy was correct or boneheaded, but rather whether he had the constitutional authority to take the action.]
Granted, under scenario #2 the president will most likely be impeached and convicted — unless there are enough members of Congress who disagreed with their leadership and agreed with the president. Then he’ll stay in office. His action is “impeachable” only if enough members of Congress say it is. You therefore cannot infer what is “inherently constitutional” or not from the act of the president alone. Scenario 2 may be judged unconstitutional by one Congress, and fail to meet that standard in another (where the president isn’t even impeached, let alone convicted). This illustrates again that with overlapping authorities the issue of the inherent constitutionality of an act is a judgment call, not set in stone. Where authorities do not overlap (i.e. you must be at least 35 to be president), the issue can be seen as very clear cut and immutable throughout time.
Now again, it’s doubtful that Scenario 1 would ever take place (although it is theoretically possible under the constitution). And while Scenario #2 is a bit more complicated than what I’ve laid out, it’s still essentially correct that the president has a constitutional ability to send troops into battle without Congressional approval.
Therefore from a constitutionally-practical perspective, I could actually make a case that the President’s power/authority is at least equal to that of Congress, if not greater! So, when you speak about A or not A from the perspective of formally declaring war or not, you overlook a very real additional component that may in fact be the dominant component. [Again I’m not arguing that the president’s will trumps Congress, but from a purely structural perspective, given the way the Constitution established their respective duties and authorities, you can at least make the case that the Executive is just as important as Congress in the “going to war” calculation.
I stress this because when you fully recognize that there is not only overlapping authority between the President and Congress in this matter, but equal authority on a very real level, then you’re A not/A dichotomy must be stood on its head. Rather than focus on Congress, the focus could be on the Executive’s authority. Then A not/A becomes a constitutional issue regarding the president’s responsibility to defend the nation as Commander in Chief. Congress has no part in the war calculation unless you ad in “B”, which is now their constitutional authority/responsibility to declare war.
So unless you’re prepared to say that Congress is irrelevant to this issue, which it is clearly not, then you must account for more than A not/A.
This is why I maintain that you cannot do a simple A/not-A calculation to determine the inherent constitutionality of an act. And further, why it is not a logical impossibility to have A, not A or B as equal components to the decision. This is the true “grey area” — i.e. what are the actual limits of A and B’s authority under the constitution? — which I’ve maintained is a politically influenced issue operating under a set of guidelines rather than a detailed set of laws. It will explain why, when looking at the constitutionality of an action, “‘X’ can be neither ‘A’ nor ‘not A,’”, but something all together different. Such propositions are logically possible where authority overlaps.
A couple of other quick points —
Regarding your OJ comment, my point here is that it is an incorrect analogy. OJ’s trial deal with crimes defined in detail in the penal codes that operate under the Constitution. Here we can and should expect to objectively know a correct verdict from an incorrect one based on the evidence presented. But the Constitution is a different animal (a framework, not a code of law), and therefore it has different rules of operation and different outcomes. There are few absolute judgments that can be made about a blatant constitutional or unconstitutional act for all the reasons I expressed before.
By the way, my comments about those making claims of “blatant unconstitutionality” were in response to what others have said in this discussion, not you. I should have been clearer at that point that I was broadening my already lengthy response to relate to what others have said as well. Sorry for the confusion.
Regards,
Phil
Comment by Phillip Ellis Jackson | March 27, 2007
Katzen and everyone:
One other thing to keep in mind as you plod through my at times turgid responses. I'm talking about what the Constitution actually is (not what I wish it to be), which is a reflection of what it says (and doesn’t say), and how its constituent parts (the 3 branches) overlap or not in terms of authority. This is the reality of the document that guides the nation’s laws.
We may all want to see clearly expressed principles, and may point to one passage or another to express that principle, but you have to look at the Constitution as a whole. And in doing this, you have to look at it as a functioning document in a functioning society, not as an abstract statement of principles. [That is what the Declaration of Independence was].
The Constitution was never meant to be a code of law. It was meant to give practical guidance to the making of those laws, as well as provide a foundation/set of parameters within which those laws are made. Arnold Schwarzenegger wants to be president, but he will never run because the Constitution is clear cut on the matter of native birth. This, though, is the exception rather than the rule, which is why from the very beginning of the country there has been a systemic need to interpret the Constitution, rather than simply point to a section and say “case closed” where everyone intrinsically agrees.
My comments throughout this have been confined to a single issue: a response to the question “by what authority can the President legitimately, i.e. constitutionally, commit troops to battle without a formal declaration of war?” It is not whether the action was a good or bad policy decision. I have very strong opinions on this subject regarding the correct decision to attack Iraq, but as I said, this isn’t the point I’m addressing. I’m simply challenging the notion that the action — right or wrong — was blatantly unconstitutional.
Moreover, when I say the president has the authority to do X, I’m not saying that I think this is a good thing or a bad thing regardless of which policy it is in support of. I’m simply laying out a case that the action is in keeping with the Constitution. My hope is that once you see what the Constitution is — as well as what it isn’t — you’ll then understand why I’ve come to the conclusions I have.
Phil
Comment by Phillip Ellis Jackson | March 27, 2007
Phil,
I'm afraid I still don't understand. Either the President has constitutional authority to do something, or he does not. It may be unclear which answer is correct, but it has to be one of them. I don't understand your third option.
Here is the heart of what you wrote:
"I stress this because when you fully recognize that there is not only overlapping authority between the President and Congress in this matter, but equal authority on a very real level, then you’re A not/A dichotomy must be stood on its head. Rather than focus on Congress, the focus could be on the Executive’s authority. Then A not/A becomes a constitutional issue regarding the president’s responsibility to defend the nation as Commander in Chief. Congress has no part in the war calculation unless you ad in “B”, which is now their constitutional authority/responsibility to declare war.
So unless you’re prepared to say that Congress is irrelevant to this issue, which it is clearly not, then you must account for more than A not/A."
Not so. 'A' does not represent the President, with a second variable, 'B', representing Congress. In my posts, 'A' represents a proposition of an action's constitutionality. 'Not A' represents its negation. How would you define 'B'? Whatever it is, it still seems to me that it must be encompassed by 'A' or 'not A'.
"The Constitution was never meant to be a code of law."
The Constitution calls itself the "supreme law of the land." However unclear it may be at times, it is indisputably law. Laws allow certain things, require certain things, and forbid certain things. But even if we call it a "framework," there are certains that are within the framework, and there are certain things which are not within the framework (and, again, those are the only two options: within or not within).
If your argument is that the President has the power to go to war unilaterally under Article 2, then you're really not arguing for a third option between constitutional and unconstitutional. You're arguing that the President's actions are constitutional. I've previously stated my reasons for doubting this.
And if you are, indeed, arguing for a coherent third option besides a propostion and its negation, can you name something that is neither black nor not black? Something that is neither boiling nor not boiling? Something that is neither legal nor not legal? If you can, then you will have undermined the very basis of Aristotelian logic.
Comment by Katzen | March 28, 2007
“Either the President has constitutional authority to do something, or he does not. It may be unclear which answer is correct, but it has to be one of them. “
That is correct. The actions of a president are either constitutional or unconstitutional. BUT, you are overlooking an important fact in this calculation. The actual decision as to precisely WHAT ACTIONS are Constitutional or not is a JUDGMENT made by the Supreme Court, or in the case of impeachment and conviction, a judgment made by the House and Senate. It is not always clearly, and immutably, defined in the language of the Constitution itself.
Different Courts and Congresses will look at an IDENTICAL issue and come to different conclusions/judgments (“Separate but Equal” being another example of this; at one point it was judged to be constitutional, at another point in time it was not; and during the intervening period the relevant parts of the Constitution were not amended, so both courts were looking at essentially the same document).
So I ask you, if an action is either obviously constitutional or unconstitutional, then why can the same act be interpreted differently by different Courts; or an action of the president in one era get him impeached, but in another era he is not impeached?
The answer is, because most constitutional issues are not black and white. This issue becomes further blurred when different parts of the same constitution give different branches overlapping authority and responsibility.