Monday, October 03, 2005

War Powers

If anyone is still out there...

One of my classes this semester focues on the Constitution and the Presidency. I am having a wonderful time discovering a large debate about just what branch was originally intended to have control over war making, to what extent, to what purpose, and for which reasons. I am leaning toward the idea, at least now, that the Founders intended the Legislature to be the supreme war making/declaring branch, whereas today, obviously, they are mere paper weights on appropriation bills.

Although there are good arguments for an Originalist point of view against mine (see John C. Yoo and "The Continuation of Politics by Other Means", California Law Review), nevertheless, I think that the real strength in the argument for expanded Executive powers lies more in modern reliance on precedent and arguments for unitary necessity, due to technological concerns, mostly.

So, at least in this instance, I would venture that as we have moved away from an Original understanding of the Constitution, both its intent and meaning, which were directed to securing liberty through limits and enumerated ends and powers, we have moved toward expansive goverment in the most dangerous of all areas: war making.

If this holds, it might be time to re-examine, yet again, the efficacy of understanding the Constitution as it was meant to be understood, and in so doing, rediscover the Higher Law background of our American experiment (see Edward Corwin, "The Higher Law Background......" Harvard Law Review).

By the way, grad school hasn't been that much fun yet. I think I don't get along with California. If any of you have good suggestions, like where is a fun and engaging place to attend grad school, please let me know.

The guy from Utah :-)

6 Comments:

Blogger Max said...

interesting.. if the legislative branch was thought to be the war-maker, than we now have an "emperor" makes war. I am not an history buff, but wasn't the development similar in ancient rome?

3:01 AM  
Blogger Steve said...

I was totally at Claremont a couple weekends ago, bro.

2:41 PM  
Blogger See Jay run said...

Being no history buff either Max, I can only say the very little I learned in my undergrad days concerning Rome. At some point the Senate quit funding the armies or refused to pay them for services rendered. Rich generals stepped up and payed their wages or promised the soldiers loot and booty from conquered foes. Over time the Roman armies were completely beholden to their generals and no longer loyal to the Republic.

Of course in our system the Congress still pays, but the President has progressively usurped more power in the discretion of their use, going so far as to claim the power of employing the military falls solely to the Executive branch (See Department of State Memo of July 3, 1950 concerning Truman's deployment of the military into Korea). This raised some eyebrows back then, and still has relevance today, as we have seen the unilateral use of troops and war vessels by the Presidents ever since; and, to wit, unapologetic use with nary an eye turned to the Constitution.

And Steve, I apologize for missing you. It would have been good to see you put your opponents through the ringer! Due to family concerns I made an unscheduled trip back to Zion (Utah) and missed seeing you in action.

How did it go? I remember your superlative demonstration at the conference and can guess as to your performance!

12:46 AM  
Blogger Robert said...

in the Constitutional Convention, I'm pretty sure the drafters consciously changed Congress's power to "make" war to the power to "declare" war. it was understood that a legislative body cannot "make" or direct war; that's clearly the job of the executive. putting the power to declare war in congress was a way of limiting the discretion of the executive.

it would be simply ahistorical to think that the presidential use of the military absent prior congressional approval is a modern phenomenon; it probably dates back to the very beginning of the Republic. what is more likely is that what's new is our having an enormous standing army stationed around the world and a more global outlook than before.

4:39 AM  
Blogger AndSheTookOff said...

Dude, Ceej, I totally hear you on the not getting along all that well with California deal. I don't know where to direct you, but I do know that since I've escaped to Arizona I've found myself to be much happier... :-)

9:16 PM  
Blogger See Jay run said...

Robert you are absolutley correct about the change in the wording being effected at the Convention. The disagreement that arises today is just what that change was intended to effect. It is clear that at the time the change was made there was great confusion among the delegates about the purpose for the change and confusion about what powers were delegated to what branches.

John Yoo argues that the change was intended to return war-making powers to the executive branch almost exclusively, relying upon the Legislature's power of the purse to be its instrumental check. However, that same system wasn't working very well in Britain and had indeed led to various wars between British partisans as well as among various states. I doubt that the Founders would have so quickly returned to that system, although I readily admit that they sought to greatly increase the power of the National Executive.

Charles Lofgren takes the opposite argument, detailing what he considers to be the intentions of the Founders and the Constitution limits placed on the Executive. His short essay on war-making and declaring powers is very insightful and, I think, more plausible than Yoo's.

But you are correct that historically we have seen rather wide uses of the military from day one by Executive fiat. A problem, in my point of view, that has manifested the global stationing of troops and unilateral deployment of troops at the President's whim. But we also have a vast wellfare state and unlimited government to boot, neither of which were supposed to be possible under a proper reading and rendering of the Constitution.

Good point though, and rightly taken.

And Megan (I guess andshetookoff is you?), perhaps I will have to take you up on that offer to visit sunny AZ before too long. Despite the pleasant weather here, I brood all day before computer screens and have become a pale image of my former self. I need a tan, badly, and some good ol' RnR. How are you liking it? Did you rush? What's going on now?

5:33 PM  

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