Take care, Phil

You misunderstood. Different people can judge differently. The same person who judges the war to be right cannot logically judge it to be not right. And he necessarily must think that someone who does judge it to be not right is mistaken.

Katzen: I couldn’t resist one last comment. This is precisely how the Iraq War is perceived, depending upon the individual’s frame of reference and/or individual point of view.

Phil

It has been an excellent discussion. I’m happy to end it here, answering the questions posed in your last post.

“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?”

I feel a little bit repetitive here, saying once again, as emphatically as possible, that I do not think the constitutionality or unconstitutionality of an action is always obvious. As for different courts making different judgments, that is the inevitable product when constitutionality is not clear. In such cases, however, I don’t say that both courts are right. One is right, and the other is wrong–though not necessarily disastrously so.

“The only “constant” is the constitutionally-created process for determining this act (i.e. for making the judgment).”

Under your theory of interpretation, I don’t understand why this should be so. What in the Constitution makes its text having to do with procedural more inflexible than its text having to do with substance?

You call constitutionality “a judgment call — made according to a Constitutionally-inspired process — not a declaration of a fact.”

But you can’t judge something to be BOTH “good” and “not good,” or “right” and “not right.” So Aristotelian logic doesn’t vanish when we leave the world of physical science.

This is to say nothing of him using his own intelligence services (Mukhabarat) for terrorist operations all over the world.

More on this is posted at my site http://www.regimeofterror.com, that deals with this subject only based on four years of research.

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. “Politics” (as I’ve described the process) determines where these boundaries are at any given moment in time.

So yes, an action can be said to be “unconstitutional”, but NOT by simply reading the Constitution and pointing to an article and section (like you would in a criminal or civil case where the charge is going 60 in a 55mph zone). It’s unconstitutional ONLY because a judgment was rendered that said it was. And judgments are not immutable throughout time — they change as the notion of Separate but Equal illustrates. The only thing that remains constant is the process by which these judgments are made (Judicial Review is the province of the Supreme Court; though Congress can circumscribe the Court’s jurisdiction on certain matters. The House impeaches and the Senate convicts, etc.)

So the definition of constitutionality for a given act is not set in stone. The only “constant” is the constitutionally-created process for determining this act (i.e. for making the judgment).

When you look at the Constitution as a process, you understand why things have worked the way they have for the last 200+ years. When you look at it as a code of laws that say “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”, then you run into a problem: You must conclude that the President, Congress and/or Court have periodically, and rather frequently, acted unconstitutionally (Separate but Equal is okay before the 1950s, but not after), and the other branches abrogated their authority to enforce the constitution (or didn’t care that the Constitution was being violated).

This is an attractive point of view for those who believe the Constitution X, and they see what X is clearly even though others may disagree. But I contend that this is not a supporting argument for saying that action X is clearly Constitutional or Unconstitutional. Rather, it is an opinion.

When you take overlapping authorities into account, my explanation of what the Constitution actually is becomes even clearer. Ask yourself this question. If the Constitution gives Congress the authority to formally declare war, and the President the authority to commit troops to battle as the Commander in Chief, is it automatically right or wrong for Bush to send troops into battle without a formal declaration of war?

You appear to be saying that there MUST BE an answer that always true, even if it is at times “unclear”. 200+ years of the actual functioning of the US government contradicts this, and supports my explanation that what is constitutional or not is a judgment call made in accordance with a Constitutionally-outlined process that takes place in a political environment.

You say that “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.”

The Constitution is the “supreme law of the land” the same way the 10 Commandments are for Jews and Christians in religious matters. And yet, good and pious people can come to different conclusions about which actions involve “remembering the Sabbath”, and among other things whether the commandment to not “kill” means complete non-violence or rather not “murdering”. The 10 Commandments set down guidelines and principles for religious life in much the same way that the U.S. Constitution does for secular affairs.

Civil and criminal laws made in accordance with the Constitutional process, which are in fact laws of the nature you describe (“Laws allow certain things, require certain things, and forbid certain things.”), do not say “it is illegal to speed”. They say it is illegal to drive faster than 55 (or whatever the exact posted speed limit is). Where a dispute arises it is over how the driver’s speed was determined (by radar gun — and if so, was it operating properly? — by the officer’s visual judgment, etc.). The law is not being challenged, just the alleged fact that there was a violation.

As we get into other issues that are more complicated (is it murder, manslaughter, self-defense, etc.), the situation is less cut and dry. But the law here isn’t “it is illegal to murder.” There are maybe 30 pages of text and subtext to define what constitutes first, second, third degree murder, negligent homicide, self defense, etc.). And even with this, the obvious guilt or innocence of an action isn’t automatic. A trial or judicial proceeding is required to make that judgment.

This isn’t a case of the concept of killing someone illegally being “unclear” (i.e. is shooting someone really a wrong act in and of itself?). It’s a case of taking a very complicated matter that is defined by voluminous text, and using a process outlined in that same text to apply rules of evidence to render a verdict.

By contrast, the entire Constitution is maybe a few thousand words long at most. So how can this possibly be meant to render clear-cut decisions about each and every action? It isn’t. Rather, it’s meant to be a framework for rendering these judgments, as I’ve described.

You again say: “But even if we call it a ‘framework,’ there are certain [things] 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). … And if you are, indeed, arguing for a coherent third option besides a proposition and its negation, can you name something that is neither black nor not black? Something that is neither boiling nor not boiling?”

And this, I think, gets us to the crux of the matter as to why you and I see things differently. I believe you’ve indicated in previous posts that you are a scientist (or at least mathematician, or someone who’s trained in the natural sciences). In science, the pot of water is either boiling or it is not.

But this isn’t science. The issues that people interacting with other people deal with are much more ephemeral. They involve concepts, more than scientific facts. The authority to declare war may seem like a clear-cut “fact”, but that authority is simply stated in the Constitution, not methodically defined. And it bumps against another authority (the president’s power to command troops). And that authority also is stated in the Constitution rather than defined, which makes drawing clear-cut lines of constitutional/unconstitutional impossible.

In fact, I will further contend that “constitutional/unconstitutional” is not equivalent to “boiling/not boiling”. It’s equivalent to “right/wrong”, or “good/bad”. It’s a judgment call — made according to a Constitutionally-inspired process — not a declaration of a fact.

This is thee reason I interpreted your A/Not-A example as I did. I was placing that decision in a political (not scientific) context, which is the only way you can analyze the acts of men vs. the acts of nature.

This has been a good conversation, Katzen. I’m probably going to bow out now, because I can’t think of any other way to better describe what I’m saying. It may be one of those “agree to disagree” moments if you’re still not seeing it my way, but I think there was still a lot of value in having the discussion.

Take care,
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.

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

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

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.