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