Monday, December 14, 2009

#183 Our Unconstitutional Middle-East Wars III

It's clear that both the letter and spirit of the founding laws of the land relegated the President to a decisively secondary role in matters of War. In that case only, by implication--no provision for a standing army--would Congress raise and regulate the armed forces needed, but would fund them for only two years. Supervenient upon all of this was the war-powers clause of the Constitution: "Congress shall have the power ... To declare war." Then , and only then, could the Commander-in-Chief lead those legislatively funded and regulated troops into battle. If he couldn't get the thing over with in two-years, however, the money would pro forma run out (a modern "sunset law"!). Interestingly, there's no provision for what happens when the money machine stops--because, I believe, the Framers just couldn't imagine any reasonable justification for American troops to be overseas in the first place, and consequently took no thought of an extended stay.

Now, every President swears to uphold the Constitution upon taking the oath of office. Up until mid-last-century that has seemed to work pretty well, at least in matters of war. President Wilson, a true man of peace--with his Nobel to prove it-- never really wanted to send my Granddaddy, Corporal C.A. Edmunds, to the Argonne Forest to get a bullet in his hindquarters, but he had to after the German's reneged on their post-Lusitania promise, and began again their unlimited submarine warfare. Wilson waited, however, for Congress in due course to DECLARE our entrance into the "Great War," before he put any American troops in harm's way "over there." In contrast, President Roosevelt was itching to send my several uncles overseas--not necessarily to lose their legs, as one did--very soon after the Germans were up to it again at the beginning of WWII. (He had been "lend-leasing" war-stuff like crazy to our future allies long before Pearl Harbor.) But FDR waited, nonetheless. Even after the foregone conclusion of the Japanese attack, he needed to make the famous "day-of-infamy" speech before Congress, and ask for its permission to go to war.

So what happened? Well, our Presidents have become Kings--fulfilling the worst fears of our Founding Fathers. Much has been written about the age of the "Imperial Presidency," and whether the imbalance between the separate powers began as early as FDR or as late as Nixon ... so I don't have to. Suffice it that we haven't had a "Silent Cal" in the office of Chief Executive since Coolidge. No, in the last 60 years or more they have led us into one UNDECLARED war after another, with disaster in every one of them. Like European absolute monarchs of old, they have reverted to making unaccountable warfare for illegitimate reasons--"glory, revenge, personal aggrandizement, partisanship," and in sum "to engage in in wars not sanctified by justice, or of the voice and interests of his people"--to reprise John Jay's words of two posts ago.

That's why the Separation of Powers is so important, Constitutionally, especially when it comes to War. That "Commander-in-Chief" moniker is likely to go directly to a President's head, and end up crowning it. John Jay was speaking of the declivities of European kingship; later in the Federalist Papers (#75) Alexander Hamilton (pictured above)--despite being a strong supporter of a strong Chief Executive--identifies the reason why American Presidents, if not held in "check and balance," could morph into Kings:

The history of HUMAN CONDUCT does NOT warrant that exalted opinion of HUMAN VIRTUE which would make it wise in a nation to COMMIT INTERESTS OF SO DELICATE AND MOMENTOUS A KIND, as those which concern its INTERCOURSE WITH THE REST OF THE WORLD TO THE SOLE DISPOSAL OF A MAGISTRATE created and circumstanced as would be a PRESIDENT of the United States.
Or, to translate this grand example of florid and involuted 18th-Century Ciceronian prose into modern idiom: You can't trust 'em. Or, power corrupts, and absolute power ... etc. It's only human nature, in Hamilton's decidedly Hobbesian view. So he tries to reassure his audience that such abuse of power on the part of our "magistrate" concerning "intercourse [love it] with the rest of the world [read: War]" would be impossible under the new Constitution, because such power would simply NOT be there in the first place. In no way would the President's authority be similar to that of an Old World Monarch in matters of War:

... in substance [his would be] much INFERIOR to it. It would amount to NOTHING MORE than the SUPREME COMMAND AND DIRECTION OF THE THE LAND AND NAVAL FORCES ... while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies; ALL OF WHICH BY THE CONSTITUTION WOULD APPERTAIN TO THE LEGISLATURE.
"Nothing more ... " Alas. Whither has gone the testicular fortitude of the Legislative branch of our Government? Or of the Judicial branch, for that matter? For what's happening today under the Obama administration ex jure, and what has happened forever under the legislative aegis of the "Gulf of Tonkin Resolution " of 1964 (Johnson), or the "War Powers Resolution" of 1973 (Nixon) or the ""Authorization of Military Force Against Iraq Resolution" of 2002 (Bush)--is all of it clearly UNCONSTITUTIONAL. At least as the Founding Fathers would see it.

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