The Living Constitution And The War Power
Over the years, I have written often about The Living Constitution. See, e.g. On Constitutional Interpretation: Originalism v. A Living Constitution; Scalia's Nonsense on Originalism,Dred Scott,Originalism and A Living Constitution, Constitutional Interpretation: Originalism v. A Living Constitution, Uncertainty In Life:Justice Souter's Harvard Commencement Address. I spilled tens of thousands of words on the subject, but Justice Souter's commencement address at Harvard last year wonderfully described the philosophy that I believe underpins the Living Constitution idea:
[B]ehind most dreams of a simpler Constitution there lies a basic human hunger for the certainty and control that the fair reading model seems to promise. And who has not felt that same hunger? Is there any one of us who has not lived through moments, or years, of longing for a world without ambiguity, and for the stability of something unchangeable in human institutions? I donít forget my own longings for certainty, which heartily resisted the pronouncement of Justice Holmes, that certainty generally is illusion and repose is not our destiny.
[. . .] If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.
Brilliant words from one of the finest of our modern Justices (now about that Twombly decision. . . .) It is important to realize that this concept does not always redound to consequences that we may feel are optimal. One of those for me is the modern understanding of the war power under the Constitution. The words are simple enough. Article I, Section 8 of the Constitution provides:
The Congress shall have power [. . .] To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water [. . .]
The power to authorize a military conflict lies exclusively with the Congress, according to the text. The President does not have such power. The President's power, as stated in Article II, Section 2 of the Constitution:
The President shall be commander in chief of the Army and Navy of the United States.
I suppose it is possible to argue that being the Commander in Chief of the Armed Forces means being able to order them to engage in military action, but it seems to me an implausible reading, given the fact the the Congress has the exclusive power to declare war.
This division of power was described by Alexander Hamilton in Federalist 69:
The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.
For more on this division, see my 2007 post, The War Power: What The President Can Do; What The Congress Can Do.
All pretty words. But it does not work that way anymore, if it ever did. As Scott Lemieux states, "[u]nder current practices, the AUMF George W. Bush obtained prior to the Iraq disaster was constitutionally sufficient, and for short-term smaller-scale conflict congressional approval probably isnít required." But current practice is not consistent with the text, purpose or spirit of the Constitution. Obviously, President Obama, in not seeking Congressional authorization for the Libya military intervention, is not doing anything that has not been done many time before, but that does not make it right, wise or good policy. Here, President Obama should have followed his now much cited statement:
The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.The Living Constitution with regard to the War Power has been adapted in a way that I believe is deleterious to the Republic. But this need not be the end of the story. Mistakes can be corrected. The President can help in this project by seeking Congressional authorization of the Libya intervention. I hope he does.
One final note: some have cited the War Powers Act as providing the legal support needed by the President to take the actions he has taken. I disagree. I believe the War Powers Act requires a finding of a serious threat to the Nation, just as the President stated in 2007. But even if one believes the War Powers Act granted the Presidency such authority, legislation in conflict with the Constitution can not stand. The interpretation of the War Powers Act forwarded by those arguing it empowers the President to act militarily without Congressional approval posits an unconstitutional delegation of legislative power to the Executive Branch.
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