One of the noteworthy features of the very late 20th and very early 21st centuries is the way in which everything that was once an historical accusation has become a defense. Thus, if on the evidence, FDR had a really good idea where the Japanese fleet was and where it was going in early December 1941, this is no longer a charge to be made against him, but is instead evidence of his farsighted statesmanship. He had to get us into World War II, by any means necessary, for our own good; it follows that this history of deceit and indirection is "justified" by its good consequences.
If, on the evidence, the early Civil Rights Movement was riddled with card-carrying Stalinists, this no longer calls the broader ideology of that movement into question. A cynic might say that the massive inroads on private property and the bureaucratic empire raised up in the name of civil rights were consistent with the communists’ overall goals, but to say that is, apparently, the same as being an apologist for slavery. Instead, Stalinist participation simply proves how advanced, humane, and loveable the commies were.
There are many other examples. Presidential wars, undertaken without the clear consent of Congress, make up another such case. Here, too, the argument has been turned around.
TRUMAN, KOREA, AND THE U.N. CHARTER
In the summer of 1950, and ever after, critics of President Truman’s manner of committing US forces to combat in Korea have held that, whatever the merits of aiding to South Korea may have been, the way in which he acted was improper and probably "unconstitutional." The pertinent text, Article I, Sect. 8, of the US Constitution lodges power "to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water" with Congress. Defenders of presidential practice have had to fall back on a hundred or so so-called "precedents," which were in general very thin or irrelevant, or evidence of successful usurpations, which logically had no lasting authority.(1)
Certainly, Old Right figures like Senator Robert Taft (R., Ohio) never conceded the lawfulness of Truman’s entry into the Korean War. As he wrote in 1951: ""My conclusion, therefore, is that in the case of Korea, where a war was already under way, we had no right to send troops to a nation, with whom we had no treaty, to defend it against attack by another nation, no matter how unprincipled that aggression might be, unless the whole matter was submitted to Congress and a declaration of war or some other direct authority obtained."(2) Critics of US involvement in Indo-China made similar complaints, doubting aloud that the Gulf of Tonkin Resolution, obtained by President Johnson under false pretenses, constituted a declaration of war, or some sort of acceptable substitute for one.
For a season, there was talk of the "imperial presidency" and a reassertion of Congressional authority in foreign affairs.(3) One result was the War Powers Act of 1973. The next several administrations spent their spare time finding ways around the Act.
NOW THEY TELL US
Now comes Professor Robert F. Turner to drive the last nails in the coffin of the Old Right argument. He has served as Associate Director of the Center for National Security Law at the University of Virginia and is a member of the Council on Foreign Relations. (One naturally wonders what "national security law" could possibly be.) His coffin-nailing activities took place in 1996 in the Harvard Journal of Law and Public Policy. This circumstance, too, is a bit unsettling, since that journal’s acolytes display a marked overlap with the dreaded Federalist Society.
Can you say "Neo-Con," boys and girls?
But good may come out of Nazareth, after all, so let us attend to the argument. Deploring a "national mood of isolationism" in the 1920s and ’30s which derailed Americans’ understanding of these matters,(4) Turner holds that the (capital-F) Founders were worldly fellows who understood these things. Clearly, they meant the President to have an unfathomably deep well of inherent power with which to carry out his constitutional duties.
It is possible, I guess, that this is all true, but if so, quite a lot of lying and swindling must have gone on in the Constitutional Convention and the subsequent ratifying conventions in order quietly to lodge so much power in one man and still put the document over on people who had just fought a revolutionary war partly in the name of antimonarchism.
Turner is happier with the later "mood" of the people, who cured of their "isolationism," embraced Collective Security after World War II. This improved national mental health motivated the Senate to ratify the United Nations Treaty. Turner cites remarks of Senator Warren Austin (R., Vermont) as indicative of the new outlook: "a threat to international security and peace occurring anywhere on earth constituted a direct threat to the security and peace of the United States."
Further, under the treaty, "I have no doubt of the authority of the President in the past, and his authority in the future, to enforce peace . [T]he President is the officer under our Constitution in whom there is exclusively vested the responsibility for maintenance of peace."(5)
Appealing to ratification of the UN Treaty and the UN Participation Act, Turner reasons that both houses of Congress believed "that the basic commitment to act collectively in response to armed international aggression had been made."(6) Amendments put forward by "unrepentant isolationists" to restrict presidential power to lead Americans into the new international paradise were beaten back. The only problem with the UN’s practical workings came with the onset of the Cold War. The Soviet Union began using its veto power in its own interests.
When North Korean forces invaded South Korea in late June 1950, Truman immediately consulted with UN officials.
Here is how Congressman Howard Buffett (R., Nebraska) characterized these events: "On June 25, 1950, the U. N. Security Council demanded a cease-fire and called on members to render every assistance to the United Nations in the execution of this resolution. Nothing was said about entering the conflict . But at 12 o’clock noon, on June 27, President Truman ordered United States air and sea units to give the Korean Government troops cover and support. That order put our military forces into the Korean civil war on the side of the South Koreans. At 10:45 that evening, 11 hours later, the Security Council requested members of the U. N. to supply the Republic of Korea with sufficient military assistance to repel invasion."
Thus, concluded Buffett, "Truman entered that war by his own act, and not because of a United Nations decision."(7)
Such minutiae do not detain Professor Turner. In his view, Truman acted properly through the UN. And contrary to what he calls the "myth of the imperial presidency," Truman consulted with key Congressional leaders, "who unanimously supported the President’s actions ."(8) This seems a bit too easy.
One does not get around the question of whether or not a Congressional declaration of war was constitutionally required by saying the President was so kind as to "inform" and "consult" a handful of Congressional leaders, who whatever their virtues fell a bit short of being a majority. Turner has a couple of fallback positions. One seems to be that in ratifying the UN Treaty Congress knowingly gave away its power to declare war, entrusting it to the President’s good judgment – in cooperation with the UN and in the name of securing "peace" by making war collectively.
I cannot get into the odd semantics of UN-speak here (but see my paper, "The United Nations Charter and the Delusion of Collective Security"). It is enough to say that redefining war-making as "peace-making," solely because a number of nations have formed a club to make war together in the name of peace, does not necessarily amend the Constitution of the United States with respect to Congressional authority to declare war. It might conceivably do so, but it does not seem obvious to the naked eye.
Professor Turner also deploys notions of inherent executive power entirely separate from the UN Charter. These vast powers, apparently, have existed from time out of mind, and the ratifiers knowingly signed on for them in 1787-1788. This, too, is not self-evident, but must wait for another time.
What is interesting, is that Professor Turner in putting so much stock in the UN Charter as a source of presidential power has highlighted precisely the problem that Senator John Bricker (R., Ohio) raised, and sought to correct with his much-abused Bricker Amendment. The problem is this: can the President and Senate in effect repeal or overturn fundamental provisions of the Constitution by colluding with foreign states? A related problem is whether or not a President, on his own motion, can make agreements with foreign states, agreements that will have, legally, the same effects as treaties.
It seems to me that Professor Turner may have inadvertently reopened the case of the Bricker Amendment; whether there is a case for the Amendment is a topic I shall take up at my next opportunity.
There is an interesting puzzle that I will mention now. If the President could go to war in Korea with the UN and because of the Charter, how does one justify legally the current war, where a President has acted neither with the UN nor with a declaration of war from Congress?
I know that some might say that the Resolution of 9/12/01 answers every possible question and covers every possible contingency. If that is true, we have abandoned all pretense of the "rule of law," despite our touching, 200-year old cult of the Constitution. What a pity.