War and the US Constitution

THEORY
Last time, the topic declarations of war in general. This post, we’ll look into the wording and intent of the separation of powers in the US Constitution, when it comes to warmaking. How the Framers intended the Constitution to function in times of war is, of course, one of the most important theories that we need to be translating into how we practice war against terrorists, insurgents in Iraq, and other adversaries.

Before getting into any specifics about powers and responsibilities, it’s important to note that the term separation of powers is a bit of a misnomer. The Framers didn’t strictly divide responsibility for different .spheres of activity (taxation, foreign affairs, legal matters, etc.) and assign each one to a different branch of government. Instead, the Constitution creates a set of overlapping powers, in which no branch holds exclusive power over anything. The Constitution, therefore, deliberately institutionalizes tensions and inefficiencies. Disagreements will inevitably erupt, compromise or consensus may be necessary to get any work done, and some work won’t get done at all.

The Framers understood the inefficiencies this system would create. However, their job was not only to make a smoother-running government than the Articles of Confederation had provided, but also to ensure that the Constitutional machinery generated liberty, justice, democracy, and good decisions. The Constitution needed to guard against demagogues, the tyranny of the majority, the corrupting influences of excessive power, the nasty character of politics decided by “faction,” star chamber courts, and unwise decisions made in the heat of the moment—just as they needed to avoid the paralysis and illegitimacy of the Articles of Confederation. The Constitution, according to James Madison, assumes a variety of different kinds of human wickedness, and takes great care to guard against all of them—rather than giving too efficient, unchecked instruments of government that a tyrant or a mob could control.

In foreign affairs, during times of both war and peace, the Constitution also enshrined these overlapping responsibilities. The executive negotiates treaties; the legislature gives them binding power through ratification. The executive appoints ambassadors; the legislature blesses their appointment. The President is commander-in-chief of the military; the Congress controls the purse strings and has the exclusive power to declare war.

Of course, the declaration of war clause (Article I, Section 8) hasn’t stopped the United States from fighting any number of undeclared wars, starting early in its history. However, the people who fought the earliest “little wars,” like the expedition against the Barbary emirates, did tug their forelocks respectfully at the principle of declaring war. Either the war was already effectively declared by the enemy, as Jefferson argued in the case of the Barbary emirates, or the military action was too small, short, and insignificant to merit being called a war. (The notion of a police action is as old as clearing shipping lanes of North African privateers in the early 19th century, or the punitive actions in the Pacific, Latin America, the Caribbean, and Asia during the same period.)

At the time the states ratified the Constitution, the two hot issues concerning war-making were (1) the alien concept of maintaining a standing army and navy, (2) regular troops as the major part of that new standing army (as opposed to state militias). . Therefore, the Federalist Papers focus on these two questions, rather than discussing equally important issues, such as whether the standing army could be the platform on which an ambitious President could turn his office into a functionally monarchical or imperial title. Hamilton, in the Federalist #26, in fact, dismisses the idea that the executive could abuse his power as commander-in-chief, since Congress could always retaliate by cutting off military expenditures.

The other ways in which the federal government might abuse its warmaking power were, in fact, very hotly discussed in the parlors, workshops, and taverns. These fears were crystallized in the widely-felt concern that George Washington might turn into a Roman-style dictator. When he announced that he had served his two terms as President and had no interest in running again, a mass exhalation of relief occurred. Many at the time felt that, even more than Valley Forge or Yorktown, his decision to step down was his greatest, noblest moment.

Given the anxieties that inspired them, it’s no surprise, then, that these Constitutional guidelines on waging war and negotiating peace were canon for future generations of American politicians. Leaders who tried to bend or break them in the name of expedience or national emergency generally got an angry reception. There was no argument that a national emergency was at stake in the War of 1812 or the Civil War; there was just no need to toss away hard-won Constitutional protections for justice and liberty.

A good example is the Alien and Sedition Acts, the great stain on the presidency of John Adams. The Acts were officially designed to root out the enemy within, agents of the British, insurrectionists, and other colonial fifth columnists. Given the number of Tories still smarting from Britain’s defeat, plus the British navy still prowling the Atlantic, these were credible threats to the still-fledgling republic. Unfortunately, not only were the Alien and Sedition Acts unjust, but they were also blatantly designed to advantage the Federalists by keeping out immigrants, most of whom joined the Democratic-Republicans. The Alien and Sedition Acts were also part of a bizarre plot that Hamilton had conceived, in which be might become an American Caesar, carried to supreme power on the shoulders of an army he would lead to crush these purported enemies within. Hamilton died in a duel with Burr, and the Acts expired. Adams spent the rest of his life defending his sponsorship of the Acts from numerous (and justified) critics.

To sum up, the Framers expected the Constitutional assignments of overlapping powers to be taken very seriously by future generations. Wars were serious business--so serious that the nation needed to re-think its views on militias and a standing navy. However, the more serious the issue, the more the Framers expected that leaders would cleave to the Constitution, and not abandon it. It’s worth recognizing that, even though the Constitution may not be “a suicide pact,” it has no emergency clauses.

PRACTICE
As we’ve seen recently, the Bush Administration has gone beyond Cold War position that the commander-in-chief needs the latitude to fight major wars without a declaration. (As I argued in the last post, we as a nation should be re-considering this policy, now that there’s no risk that a declared war could trigger an escalation with a superpower adversary to nuclear levels.)

This week, Solicitor General Ted Olson argued before the Supreme Court the executive branch’s case for the detention of enemy combatants. In this case, the two enemy combatants in question are actually American citizens. The facts of the case--were the two litigants actually involved in planning or executing terrorist attacks?--are not the issue. What’s at stake is a principle: can the executive branch, by assigning someone to the “enemy combatant” category, arrest that person without making charges, indefinitely detain him without charges, deny him access to the outside world altogether (including a lawyer), and block the person from even mounting a challenge to the accusation of being an “enemy combatant”?

Needless to say, I don’t agree with the government’s position. Neither did the Framers, whose worries about warmaking had everything to do with how human wickedness might tempt us to destroy ourselves, and next to nothing about how the country would defend itself from foreign enemies. As discussed earlier, the Federalist Papers—the voice of the Constitution’s author and most fervent supporters—casually dismiss the question that the country would rise to its own defense. Instead, the Federalist Papers spends more time assuring their audience that the federal government’s powers to raise armies, fight wars, and negotiate treaties will not be abused, if the checks and balances are allowed to work as designed. Rather than identifying times when a national emergency might require suspending parts of all of the Constitution, the Federalist Papers argue that the Constitution’s machinery most need to continue functioning during these times.

Which, again, calls into question why, if we are fighting a major war in Iraq, we’re not following the Constitutional stricture that the federal government must declare the wars it fights. Force of habit from Cold War years isn’t reason enough.

At the risk of sounding as though I’m harping on a dry, legal position, I’ll spend the next post linking the declaration of war with the successful conclusion of a war. There are good, practical reasons to think we shot ourselves in the foot by not declaring war (or even talking about why we should or shouldn’t use this part of the Constitution, as designed).

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Congress is the sole branch responsible for declaration of war. No war has been declared since WWII by congress so subsequent actions since then are uncostitutional.

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