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Originalism, Living Constitutionalism, and the Power to Initiate War

You don't have to be an originalist to conclude that the Constitution requires congressional authorization for war.

A Tomahawk missile. Tomahawks were among the weapons used in last night's US and allied strike on Syria.A Tomahawk missile. Tomahawks were among the weapons used in last night's US and allied strike on Syria.

In a recent post at the Originalism Blog, prominent originalist legal scholar Michael Ramsey notes the phenomenon of nonoriginalists like Sen. Bernie Sanders claiming that Trump's recent air strike on Syria requires congressional authorization. In Ramsey's view, this conclusion is difficult to justify on other than originalist grounds:

I agree [with Sanders].... But let's be clear that Senator Sanders and those agreeing with him are making an originalist argument. The Constitution given its original meaning is clear.... To "declare war" in eighteenth-century terms included "declaring" by taking military action as well as by issuing a proclamation, and even relatively small armed conflicts with foreign nations were considered "war."

In contrast, the nonoriginalist case against the President's war-initiation power is highly uncertain. It can be made....

But the argument the other way is strong as well. Circumstances have changed drastically since the Founding. Military action can take place much more quickly, and often needs to do so to be effective. The United States' air power superiority makes quick strikes more practical and less likely to involve material U.S. casualties. The power disparity and our limited objectives make it less likely that full-scale war will ensue. Congress has proved unwilling to wield the war-initiation power except for major conflicts (and sometimes not even then). Presidents have used their independent power to launch airstrikes repeatedly in modern times -- Clinton in Kosovo, Obama in Libya, Trump in Syria last year -- with relatively muted criticism. The President's lawyers have consistently taken the position across multiple administrations that Presidents have this power. No Supreme Court decision in modern times has even hinted at a limitation, as the Court has carefully avoided the issue.

Taking all these arguments together, there's a strong claim that the Constitution's meaning has evolved, or should be seen as evolving.

I think the nonoroginalist case for requiring congressional authorization is stronger than Ramsey gives it credit for. As Ramsey notes, the main living Constitution justification for letting the president initiate wars on his own is the greater need for speed in an era when events move more quickly than in the 18th century. But this ignores the reality that modern technology also makes it possible to get swift congressional authorization. In the 1790s, it could take weeks to gather all of the members of Congress in Washington when the legislature was out of session. Today, by contrast, modern jet travel enables virtually all of them to get back to DC within less than a day. No significant US military intervention has ever been decided on so quickly that Congress could not have been summoned to Washington in time, even if out of session. In this context, it is important to remember that we are talking about the power to initiate conflicts with foreign powers that the US was previously at peace with. No one denies that the president has the authority to respond if the other side attacks first (and thereby itself initiates war).

When we begin the conflict ourselves, there is little to lose by taking a few days to get congressional authorization. Perhaps we would lose the advantage of surprise. But virtually every presidentially initiated conflict of the last several decades came only after considerable public debate and rumors of imminent military action. None were "bolt from the blue" attacks that took the enemy completely by surprise.

It is true that some modern military actions have "limited objectives" and are likely to involve few or no US casualties. But, of course, the same was true of many 18th and 19th century conflicts. That is not much of a material change. By contrast, the existence of nuclear weapons and other weapons of mass destruction in modern times creates a risk of massive escalation, in some cases, that did not exist in earlier eras. That argues for greater caution and deliberation before launching attacks.

The claim that presidential unilateralism is validated by practice has some truth to it, but is a lot weaker than it seems. The vast majority of the cases usually cited were in fact either interventions small enough that they did not rise to the level of war, or cases where the enemy attacked first, thereby initiating the war themselves. There are some important exceptions, such as the Korean War, Kosovo, and Obama's Libya intervention. But the existence of exceptions does not obviate the rule. Few if any constitutional constraints on government power are perfectly enforced. Constitutional rules are not like virginity. Violating them once or even multiple times does not mean they must be lost for ever.

Some of the Founding Fathers' reasons for giving the power to initiate war to Congress are actually more compelling today than in their own time. Their greatest concern was ensuring that no one person would have the power to take the nation to war. As James Madison put it, "the trust and the temptation would be too great for any one man." This is an even more serious danger in an era when the Oval Office can be occupied by a dangerously impulsive and ignorant demagogue, thanks in part to the breakdown of political safeguards against such an eventuality. The Founders expected that such dangerous men would be kept away from the presidency by institutions such as the electoral college, which was supposed to exercise independent judgment and screen out demagogues. But, as early as the first contested elections in 1796 and 1800, it became clear that most electors would simply vote the party line. In later periods, party elites exercised a similar screening function by controlling the nomination process. That has obviously broken down in recent years, as the process has become more populist, leading to the election of Trump.The Founders' fear that a president might launch a war to distract attention away from domestic political problems is also more plausible under modern conditions, where vivd 24 hour cable TV news coverage enables even a distant war to dominate public attention to a greater degree than was feasible two centuries ago.

In sum, both originalists and living constitutionalists have good reason to conclude that the Constitution bars the president from initiating war without congressional authorization. There is, of course, some room for debate about which military actions are large enough to be considered wars. But sustained engagements that involve combat over a period of weeks, months, or longer, surely qualify.

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  • JesseAz||

    ". But this ignores the reality that modern technology also makes it possible to get swift congressional authorization."

    Lol. Nothing in Congress is quick professor.

  • BigHands||

    The 2001 AUMF passed both houses on 9/14.

  • Jason Cavanaugh||

    Sorry, but dropping bombs, or airstrikes, or any other use of military force on another country is an Act of War.

    There's no such thing as "too small to be considered war."

  • Toranth||

    Jamming radio signals? How about weapon guidance signals?
    Flying a US plane in the way of the approach to an airstrike?
    What about blowing up stretches of empty road, or knocking down telephone poles?

    There are many military actions that are so small, it's difficult to call them an "Act of War".
    And there are many acts of war that do not involve the slightest act of violence - such as providing materiel or operational information to one side of a conflict.

    In other words, it is nowhere near as simple as you claim.

  • Jason Cavanaugh||

    I thought that "use of military force" was rather clear.

    So yes, it is that simple.

  • nonzenze||

    But that's not what Art II says . . .

  • Jason Cavanaugh||

    Why don't you try a complete argument if you expect any sort of substantial response?

  • Joe_JP||

    I'm not sure what size argument is necessary.

    I'm sympathetic to your position, but "war" is the word used in Art. I. Not "use of military force," which very well might not be what that is considered either colloquially or as a matter of domestic and international law. For instance, a "reprisal" is separately dealt with but that could involve a use of military force. A use of military force as an act of self-defense might not be "war."

    An "act of war" might not itself be "war" either. Something can be a declaration of military force but not "war," a term that brings with it a major change in status. Finally, moving past your own position, long term practice seems to hold that there has to be some level of force before it is "war" as understood under the Declare War Clause.

  • nonzenze||

    Here's the complete argument:

    (1) The phrase "use of military force" may be reasonable clear under most circumstances.

    (2) The Constitution does not anywhere mention the phrase 'use of military force'.

    (3) The Constitution does mention 'declaring war', which is a different phrase that 'use of military' force'.

    (4) Reasoning about the two phrases is necessarily separate as they are not coterminous.

  • Jason Cavanaugh||

    You still do not seem to be discussing my point.

    Committing an Act of War against another country is illegal without a Declaration of War under our Constitution.

    Can you take more than 12 seconds out of your life to put forth a coherent response, instead of bullet points which have nothing to do with my position, or are you trying to claim that we can bomb, destroy, or kill whatever and whomever we want around the globe as long as we just don't say the magic words?

  • James Pollock||

    "Act of War" is subjective.
    Suppose a Navy vessel is in international waters, conducting signals intelligence. It experiences a mechanical failure and drifts into territorial waters. This can be taken as an act of war, if it's in the country's interest to do so.
    Suppose the ship doesn't just drift into territorial waters, but actually runs aground, and sailors climb off it before it sinks. Is that a shipwreck, or an invasion?
    The Coast Guard shows up, and lifts several sailors to safety. Act of mercy, or capture of military personnel? Now both sides have an act of war to point to.

  • DjDiverDan||

    Question: It is December 7, 1941. Naval personnel in Hawaii observe fleets of Japanese aircraft approaching the island of Oahu. They haven't yet dropped a bomb or fired a shot, but they have invaded American air space without authorization. Is it an "act of war" to fire on those Japanese aircraft? What if it is an American Destroyer, well away from the Hawaiian Islands, and it observes those aircraft coming off of a Japanese aircraft carrier and heading toward Oahu - can it fire upon either the aircraft or the carriers without committing an unconstitutional "act of war"?

    Obviously, there must be an exception to the Constitutional requirement of a Congressional declaration of war for acts taken in defense of an invasion. Firing on Japanese aircraft dropping bombs on naval ships in Pearl Harbor must be acceptable, even though Congress has not yet declared war on Japan. But what about Japanese aircraft that are still over international waters, even though they are apparently heading towards Oahu? Or what about defending American lives, even though they aren't in America, as Teddy Roosevelt did by sending the Marines into Morocco in 1904 (the Perdicaris incident) [even though Perdicaris, though born in the U.S., was no longer am American citizen, having given up his U.S. citizenship for a Greek passport some years before the incident, a fact apparently not known to Roosevelt when he sent in the Marines]? How far does a "defensive action" exception go?

  • Jason Cavanaugh||

    It would seem rather obvious that if a country's sovereign territory has been breached (without permission) by military equipment of another nation, then one has every right to fire upon that equipment.

  • DjDiverDan||

    Agreed. But how far can this exception be stretched? What if there has been no breach of a country's territory, but it looks like there will be? Or MIGHT be? Shooting down an incoming ballistic missile before it reaches the boundary lines (the 12-mile line? Or farther out?) looks like an easy case, but what if the offending country still has the ability to abort by giving a self-destruct signal? What about a hostile country's strategic bomber, where the pilot APPEARS to be approaching the U.S. border, but can easily turn away? Are we required to play "chicken"? And what about U.S. citizens on foreign soil? I assume that you would have no problem defending a foreign military base, like U.S. troops stationed on a German base under the auspices of NATO, or on a Japanese base under our defense obligations to Japan, or on a South Korean base. But what about civilians? With a population of about 330 million, there are going to be at least a few U.S. citizens, whether as tourists, or on business, or on a humanitarian mission, in just about every other country on Earth. Can the President invoke the "self-defense" exception to send troops to save a few hundred American civilians enrolled in Medical School on Grenada if they are threatened by Cuban forces?

  • nonzenze||

    FWIW, the US and USSR planes routinely played chicken with one another. It's a very useful way of seeing what forces your adversary has on alert and what their posture is -- the very act of responding to the provocation leaks significant information.

  • James Pollock||

    Back in the Reagan era, we shot down a couple of Libyan planes that got too close to a carrier group offshore, in waters Libya claimed were theirs, but the U.S. claimed were international.

  • Rev. Arthur Ꮮ. Kirkland||

    So, if the President orders the CIA to dirty-bomb a city using stolen civilian nuclear waste in a fertilizer-and-diesel truck bomb, that's okay under the Constitution because no "military force" was used, only "civilian force", and there's no size threshold distinguishing an act of war?

    You can't solve line-drawing problems by using undefined categories.

  • Jason Cavanaugh||

    Is bombing a foreign city an Act of War?

    Yep. Problem solved.

  • Jason Cavanaugh||

    You are forgiven.

    You are not however, forgiven for the ignorant implication that only SCOTUS justices are permitted to voice opinions.

  • Jason Cavanaugh||

    A fine response, clearly indicating that you don't get it.

    Bravo.

  • Jason Cavanaugh||

    Don't you worry your pretty little head. I know, and knew, fully what you intended by your pithy attempt at an insult.

    I just happen to think that you're the clueless one here. Judging by the substance of your replies, I have it on pretty solid ground that I'm right.

    Your understanding of the legality regarding a President committing offensive Acts of War without Congressional declaration of war is juvenile, at best.

    Enjoy your game. During the commercial breaks, perhaps you should actually read the Constitution yourself.

  • Jason Cavanaugh||

    Lying? I think not, child. You're hardly the first person on the internet, or real life, to make the "over the head" joke, sound, text, or insinuation.

    For example, Jeff Dunham has you beat by over a decade:

    https://www.youtube.com/watch?v=acI12jO0HSQ

    You are however, the first person to think that someone else doesn't know the intent. Bravo, I suppose.

    If you spent less time with lame text formatting and making asinine accusations of lying, and instead spent more time reading and learning, perhaps someday you'd be worth having a conversation with.

    As is; you aren't. Shoo away little fly.

  • Eidde||

    What are, in fact, the outer limits of living-constitutionalism? What arguments are too out-there for a living-constitutionalist to make?

    We can think of arguments which are too far out-there for an originalist - eg, with all the Constitutional authorization of the death penalty, we can rule out the idea of the death penalty being cruel and unusual in all cases. Yet even originalists will be able to find things to argue about. Sometimes, though, they'll bump up against the part where their arguments fail the laugh test.

    Can any living-constitution argument fail the laugh test?

  • BigHands||

    Can any living-constitution argument fail the laugh test?"

    Sure. The current EU debate about whether to give "sufficiently intelligent" robots/AI legal rights would be a chuckle too far - for now. But 20, 50, 100 years down the road things will undoubtedly look different and a living constitutionalist may have a better answer than an originalist. And Watson X may be the one to argue it before SCOTUS. ;-)

  • James Pollock||

    I suggest a careful reading of Chief Justice Taney's opinion in Scot v. Sandford.

  • BigHands||

    Taney's opinion is not relevant here, the question asked was if there were any living constitutionalist arguments which would venture into the absurd.

    In the Dred Scott case, a progressive living-constituionalist in 1857 could reasonably argue that since 1789/91 sufficient change on the federal - and in some cases state or local - level had occurred so as to not just identify slavery as the untenable evil that it is, but to also demand that natural born citizens of any state also be recognized as citizens of the United States and entitled to all the rights thereof.

    Basically, s/he could make the same arguments that led to the 13A and 14A. An originalist would have a strong argument against such an interpretation, but while the arguments of a living constitutionalist might not succeed they would not "fail the laugh test."

    OTOH, a serious, non-theoretical argument that a non-biological "intelligent" entity could today avail itself of all constitutional rights would not pass the laugh test. Give it time though.

  • Sarcastr0||

    Appeals to ridicule are about the only argument originalist have against everyone else. Even other originalists who don't follow their particular style!

  • LawDog||

    Raoul Berger vanquished that dragon a generation ago. http://digitalcommons.law.umar.....ontext=mlr lt boils down to a simple question: Do you honestly think that the Framers fought a bloody revolution to replace the arbitrary and capricious rule of King George with the arbitrary and capricious rule of King Judge?

    To even state the case is to refute it.

    The Achilles heel of the LC is that COTUS counts for nothing; "the law" is simply whatever five lawyers in black robes say it is at any given moment. lt is ad hoc, and ex post facto. Under the LC, we are like Rome under Caligula: We can't know the law in advance, or plan our affairs accordingly.

    For the past quarter-century, the scholarship has consisted of LC defenders attacking bad (outcome-driven) originalism (e.g., Bork's "inkblot") and originalists producing theories which meet legitimate objections. The end product is a lot more credible.

    But Kagan's "problem of Platonic Guardians" remains. Originalism is useless as a predictor of outcomes, as even self-confessed originalists like Scalia succumb to the siren song of untrammeled power.

  • LawDog||

    M: "It's not "inventing," it's acknowledging."

    That, my friend, is the secret of freemasonry. Understand that, and you get COTUS.

    In introducing his draft of our Bill of Rights to the House of Representatives, Madson explained that he consciously avoided attempting to enumerate all the rights retained by the people, arguing that

    ….by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution. [1 Annals 456 (1789) (remarks of Rep. Madison).]

    The clause Rep. Madison refers to reads as follows:

    "The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution." [Id. at 452.] /2

  • LawDog||

    2/ This is the Rosetta Stone for interpretation of our modern-day Ninth and Tenth Amendments. While the Ninth doesn't create rights, it is a constitutionally mandated canon of construction, prohibiting judges from interpreting the Constitution in any manner that would "deny or disparage [unenumerated rights] retained by the people," U.S. Const, amend. IX, and the Tenth is an express reservation of powers to "the States respectively, or to the people." Id. amend. X. As such, government can only infringe upon those rights that were willingly relinquished by the people, and only when needed in order to discharge its legitimate duties as our authorized agents.

    lt was the duty of courts to acknowledge those rights, when invoked by citizens. lncluding--and dare l say it--the right to enter into a SSM.

  • LawDog||

    Dude, you are so far out in left field that even Bob Uecker wouldn't call yours a great seat.

  • LawDog||

    Dude, you have gone so far down the rabbit hole, even Alice couldn't find you.

    The people hold sovereignty, as tenants-in-common. We delegated a portion of it to the States, which acted as our agents. ln turn, they delegated a portion of it to the federal government. COTUS is a treaty between co-sovereigns, creating an express and limited agency. We have modified the treaty from time to time, and can replace it tomorrow if we see fit.

    By virtue of our existence, we have a constellation of natural rights. When we enter into a society, we agree to give up certain of those rights (e.g., the right to play our boombox at maximum volume at 3:00 AM in a residential neighborhood) and assume certain obligations (e.g., to pay taxes), in exchange for a portfolio of "civil rights"---more accurately, procedural protections--which serve to protect those that remain.

    The 9/10Am creates a sphere of personal liberty, where the majority may not enter.

    How are said rights protected? By courts. The most important safeguard was the right to a jury trial: As Blackstone put it, "the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals." 3 Blackstone at 379.

    Got a better mousetrap? Let's see it.

  • LawDog||

    At the risk of stating the painfully obvious, there is one and only one correct way to interpret the Constitution, and the most effective summation of this principle comes (as it always appears to) from the pen of Thomas Jefferson:

    Our peculiar security is in possession of a written constitution. Let us not make it a blank paper by construction. If [our public officials' powers are boundless] then we have no constitution. If it has bounds, they can be no other than the definition of the powers which that instrument gives.

    Thomas Jefferson, Letter (to Wilson Nicholas), Sept. 7, 1803 at 2.

    That instrument, in the hands of our fellow citizens, is the best security we have devised. lf you think you can devise a better one, l'm all ears.

    The problem with revolutionaries is that they don't know what their post-revolutionary world will look like.

  • LawDog||

    Buy a clue. At least, rent one.

    l wanted to understand your position. But your failure to craft a coherent explanation of that position is not my problem.

    l gave you James Madison's explanation of the 9/10Am. He wrote it; he ought to know what it means. And it doesn't mean what you think it means.

    9A means what it says. Unenumerated rights are treated the same as enumerated ones. All rights are entitled to court protection, except those that were ceded.

    10A provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The deal between States and their citizens was between them.

    There is no comprehensive list of human rights, as some would be overlooked by anyone who tried to compile one. Madison explained this with clarity, and everyone with a legal education gets it.

    You are free to read the 9Am as "'Twas brillig, and the slithy toves. Did gyre and gimble in the wabe: All mimsy were the borogoves,. And the mome raths outgrabe," for all l care.

  • Joe_JP||

    "with all the Constitutional authorization of the death penalty"

    There aren't that many and they are all by implication.

    So, e.g., there is a requirement (currently only applied to the federal government) that a grand jury be used in capital cases. This doesn't by itself mean capital punishment for all time until the Constitution is amended is constitutional. It just is one more limit if it is otherwise in place.

    The cruel and unusual punishment provision is after those. The 14th Amendment due process requirement in particular is of limited value since what is specifically due process changes over time -- the developing nature of procedural rules was well known in 1868. It also is a matter of the facts on the ground, including a determination of arbitrary government action (substantive due process by 1868 recognized as a thing). They change.

    At any rate, self-proclaimed originalists have positions that run the gambit so I'm not sure if they should be kept out of the humor department here.

  • Joe_JP||

    I would separately note that there are various way the government can deprive one of life so the Due Process Clause would have force even without capital punishment. So, e.g., there are rules regarding use of deadly force for fleeing suspects. And, perhaps, capital punishment would in theory be acceptable, but in so few cases and with so many caveats that the difference from a total ban would be largely theoretical. This would be the situation in many states where it is technically on the books but never used.

  • Eidde||

    "So, e.g., there is a requirement (currently only applied to the federal government) that a grand jury be used in capital cases. This doesn't by itself mean capital punishment for all time until the Constitution is amended is constitutional. It just is one more limit if it is otherwise in place."

    How exactly, under originalism, does capital punishment become permissible in certain circumstances one day, then absolutely banned the next, without an amendment?

  • James Pollock||

    "How exactly, under originalism, does capital punishment become permissible in certain circumstances one day, then absolutely banned the next, without an amendment?"

    Via legislative action. Or common law. The Constitution provides for both.

  • Eidde||

    Legislation can't absolutely ban it, since Congress or a state legislature can always reconsider its previous action.

    Tell us more about this common-law practice of making something unconstitutional which used to be constitutional.

    I seem to recall that the common law included a very broad list of capital crimes, narrowed from time to time by legislative action.

  • LawDog||

    Laws change. Some actions are made criminal. Others are decriminalized. Where is the problem, James?

    What originalism doesn't countenance is ad hoc legislation by King Judge.

  • LawDog||

    "My" interpretation of the 9Am isn't mine; it's Madison's. And he wrote the damn thing.

    l will ask again. Propose your alternative.

  • James Pollock||

    "What originalism doesn't countenance is ad hoc legislation by King Judge."

    Unless King Judge rules the way WE wanted. Then we're fine with it.

  • LawDog||

    "Judicial decisions, like the Constitution itself, are nothing more than "parchment barriers," 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges' policy preferences."

    Ml v Bryant (Scalia, dissenting).

  • bernard11||

    How exactly, under originalism, does capital punishment become permissible in certain circumstances one day, then absolutely banned the next, without an amendment?

    What does "unusual" mean? How can snow be common in January and unusual in July?

  • AmosArch||

    Glad to see Bernie is suddenly a letter of the law originalist. Let's see if he remains so or if there is any mainstream media outlet with the guts to call him out if he flip flops back.

  • Sarcastr0||

    You do know Bernie didn't cite originalism, right?

  • Stephen Lathrop||

    Authoritarians both left and right FEAR .. liberty.

    Yup. True for all cases where "authoritarians" includes rights-protective government systems chosen and empowered by sovereign majorities, and "liberty" includes government by minority rule.*

    *Or anarchy.

  • LawDog||

    lt is within our power to change COTUS ... but only if we feel the need. l fail to see the problem.

  • LawDog||

    WE could scrap COTUS tomorrow. But the devil is in the details.

    WHAT do you propose that we replace it with?

  • LawDog||

    Get a clue. Madison wrote it, and he told us what it meant.

  • LawDog||

    You don't like COTUS? Fine. We get that.

    How about proposing an alternative ... instead of screaming like you belong in a lunatic asylum.

  • LawDog||

    You are babbling incoherently.

    Where is your COTUS 3.0? lf you have a concrete proposal, then show it.

  • Stephen Lathrop||

    Ramsey: The United States' air power superiority makes quick strikes more practical and less likely to involve material U.S. casualties. The power disparity and our limited objectives make it less likely that full-scale war will ensue.

    It seems foolish to entangle war power policy among the evanescent particulars of current military capabilities. Why is Ramsey even justified in assuming American air superiority affords a war-avoiding capability, instead of a war-inducing provocation? There are so many scenarios imaginable.

    Also, there is no good reason to suppose the approach the U.S. has taken to achieve current air superiority—use of a few awesomely capable, but awesomely expensive aircraft—will prove especially durable if adversaries choose to challenge it otherwise. Imagine what would happen if China chose to challenge the U.S. Pacific Fleet not in kind, but instead with tens of thousands of pitifully capable, dirt-cheap aircraft, distinguished only by the ability of any of them (which ones?) to deliver a nuclear weapon.

    Putting the war making power in Congress is the right arrangement simply because Congress is typically more afraid than the President is of the political consequences of going to war. Indeed, adverse political war consequences for Congress are too often over-matched by positive political war consequences for the President.

  • Joe_JP||

    "As Ramsey notes, the main living Constitution justification for letting the president initiate wars on his own is the greater need for speed in an era when events move more quickly than in the 18th century. But this ignores the reality that modern technology also makes it possible to get swift congressional authorization."

    I don't think the only reason offered to by non-originalists is the greater need for speed.

    There appears to be an understanding by many that there is basically a structural argument in which the president has a role as commander-in-chief to use military force -- unless Congress or something else limits the discretion -- regardless of the ability of Congress to act in specific instances. Realistically, it seems to me that there is a limit of the ability of Congress to swiftly act. This is partially a matter of will, yes, but the delay is partially a nature of the very institution. Legislative bodies take time to do things. It is part of their charm.

    The open breadth of executive power here is repeatedly put forth by "originalists" (the quotes are not meant to be sarcastic necessarily). So, it's probably best to look at this broadly anyhow. Again, it seems to me a matter of practicality in the eyes of many, including to carry out modern treaty requirements. The "greater need for speed" is not quite how I'd view it -- it is more a matter of the executive being more qualified.

  • BigHands||

    "Realistically, it seems to me that there is a limit of the ability of Congress to swiftly act. This is partially a matter of will, yes, but the delay is partially a nature of the very institution. Legislative bodies take time to do things. It is part of their charm."

    1964 Gulf of Tonkin Resolution - sought 8/2 or so, authorized 8/7 after about 9 hours of debate
    1991 AUMF against Iraq - sought 1/8, authorized 1/14
    2001 AUMF against 9/11 terrorists - sought 9/11??, authorized 9/14
    2002 AUMF against Iraq - sought 10/2, authorized 10/11
    2013 AUMF against Syria - sought 8/31, passed committee 9/4, floor vote mooted

    And, of course, Congress declared war on Japan on Dec 8th. and Germany and Italy on Dec 11th (the same day they declared war on the US).

    Seems pretty fast to me; how much faster should they have acted?

  • mad_kalak||

    Luke 22:36 - Jesus asked them, "When I sent you out without purse or bag or sandals, did you lack anything?" "Nothing," they answered. 36"Now, however, He told them, "the one with a purse should take it, and likewise a bag; and the one without a sword should sell his cloak and buy one.

    Jesus was all about self defense, but also forgiveness.

  • LawDog||

    We don't know. The historical Jesus--probably an Essene rabbi, who did none of what has been attributed to him--has little to say to us today.

  • LawDog||

    None of his actual words have survived.

  • James Pollock||

    The main difference is that the Founders assumed, and in fact took substantial steps towards, a United States that had no standing military to engage in unilateral action. If you don't happen to already have an army, then being involved in a war involves mustering and outfitting the armies. We, on the other hand, have the largest standing military force in the world, already selected, trained, and equipped.

    An originalist might be expected to call for the disbanding of the U.S. Army, and disposition of various army assets to the National Guard.

  • James Pollock||

    National Guard units are maintained by the states, but they are centrally directed by the U.S. government and can be "nationalized" whenever the federal government chooses to do so, as they did for many guard units during the Iraq war. My old Air National Guard unit was (and probably still is) part of NORAD, and provides the primary air defense of about 300 miles of coastland.

    Prior to WWII, the U.S. maintained a much smaller permanent force, and was fairly committed to avoiding the conflicts in Europe and the Pacific. But when roused, the American industry converted to war production and ultimately won the wars.

    The U.S. needs a substantial strategic force... the Navy's fleet of ballistic missile submarines can provide this. Whereas the army is a massive standing force that can defend us against... what, exactly? Which nations possess both an ability to field substantial ground forces AND deploy them in North America? In the last 200 years, the United States has faced a significant invasion of troops from exactly one hostile nation... the Confederate States of America.

  • James Pollock||

    "Yeah, I know. Are you aware that the majority of Guardsmen have full time jobs, and are not full-time military ... and not even close to that?"

    Google "Cincinnatus".

  • Stephen Lathrop||

    Not the way 19th century Americans saw it, not at all. Google Fort Knox, Maine. Also, Fort Jefferson. Note the dates. Note also that the U.S. coast bristles still with the ruins of a great many coastal fortifications built during the final years of the 19th century, and during the early 20th century.

    Nor was it that long ago that some on the political right seemed to envision an all-out ground war between the U.S. and Northern Idaho.

    And what do you suppose the Department of Homeland Security is about right now?

    I'm not trying to justify any of that as sensible, just pointing out that public threat perception has been a remarkably steady driver of national policy right along.

  • James Pollock||

    "I'm trying to imagine shooting down invading missiles with .. flintlocks "

    Try imagining it with F-15's, instead.
    Because that's what the Air National Guard, which provides for the air defense of the Pacific Northwest, is equipped with.

  • California Right To Carry||

    Our only hope for a lasting peace lies in the continuation of war.

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