Wednesday, September 11, 2013
A little expert help in figuring out Congress's power to declare war....
Seriously, even though he is disappointed I voted for Obama, Mike did a remarkable job of clearly establishing the way it should work. Here is a small taste of it:
The framers of the Constitution did not intend for the president of the United States to have the power to take the nation to war, all on his own. The Constitution’s allocation of war-power authority is, rather, a classic application of the framers’ vision of separation of powers. Congress, not the president, has the power “to declare war,” a term of art the framers used to embrace the decision to initiate a state of war with another nation or force.
Prior to the adoption of the Constitution, the powers of war and peace traditionally were regarded as part of the executive power—in England, the province of the king. The framers of the Constitution deliberately altered this balance by relocating the power to take the nation into a state of war from the executive to the legislature—to Congress. The records of the Constitutional Convention, the discussions in the ratifying conventions, the defense of the proposed Constitution by Alexander Hamilton, James Madison, and John Jay in The Federalist essays, and the statements of early presidents and congresses, are almost uniform in recognizing this as a foundational principle.
The framers carefully worded the power. An earlier draft had granted Congress the power to “make” war, but Madison—quickly seconded by others—moved to change the word “make” to “declare.” The Convention’s discussions reveal that this word change was thought to have two important consequences. First, it would leave the executive the power of defensive war—the power, in Madison’s words, to “repel sudden attacks” on the nation or its people. Second, it made clear that Congress would not have the power to conduct war (as the word “make” otherwise might have been taken to imply), the power of war-execution being recognized as “an Executive function” of the president.
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Wow! Great article. After a cursory reading I can find nothing with which to disagree (quite unlike me). I will read it later in depth in hopes of finding at least a couple of quibbles, but, having said that, thanks so much for pointing us to this extremely thoughtful, logical, and grounded discussion of this issue.
BTW: the parts not quoted in the post are actually more important than the excerpt. I encourage my fellow Razorites to read the entire article (which is not very long).
BTW: the parts not quoted in the post are actually more important than the excerpt. I encourage my fellow Razorites to read the entire article (which is not very long).
Read this last night. Loved it. Very well laid out. Forwarded it to a few people.
But then the implications came home. The position may be irrelevant.
Like a tree falling in the forest with no one around, is a constitutional opinion with no mechanism to enforce it.
It is like Andrew Jackson is alleged to have said, "The Supreme Court has spoken, now let them enforce it."
This dove tails with another topic that has been on my mind for some time. Law students, and possibly the academy as a whole, but law students in particular can often be hear saying, "you can't do that." When what they mean is, you can't do that legally. This is to say that I think we are mistaken if we assume that one's interpretation of legality or constitutionality is necessarily binding or normative.
I suspect that practicing lawyers know this full well, while law students may have to learn it the hard way.
Thoughts? I don't want to give the wrong impression. I think our society is marked by the degree to which we are bound by law. Culturally, we do abide by it, even to the point of turning over power every four to eight years without violence.
But if we think it always holds true...
But then the implications came home. The position may be irrelevant.
Like a tree falling in the forest with no one around, is a constitutional opinion with no mechanism to enforce it.
It is like Andrew Jackson is alleged to have said, "The Supreme Court has spoken, now let them enforce it."
This dove tails with another topic that has been on my mind for some time. Law students, and possibly the academy as a whole, but law students in particular can often be hear saying, "you can't do that." When what they mean is, you can't do that legally. This is to say that I think we are mistaken if we assume that one's interpretation of legality or constitutionality is necessarily binding or normative.
I suspect that practicing lawyers know this full well, while law students may have to learn it the hard way.
Thoughts? I don't want to give the wrong impression. I think our society is marked by the degree to which we are bound by law. Culturally, we do abide by it, even to the point of turning over power every four to eight years without violence.
But if we think it always holds true...
You can do things you don't have a "right" to do, because ability to do something (with a potential cost) is different than a right to do something (without a potential cost). For example, Jesus remained silent when on trial, even though he did not have that "right." He did have the ability to do so.
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