July 6, 2002
I do not mean, by the odd title I have chosen, to suggest there are no war powers, plural, to be found in this fair land of freedom. Far from it. "There's a lot of it about," as the Brits were saying a decade ago, even if no one quite knew what that phrase meant. That was the joke, I guess.
So, as a matter of practice subject to endless positivist-style testing, verification, and falsification, there must be zillions of actual war powers all over the place. I doubt that anyone has actually counted them. Under the Enabling Act of September 12, 2002, and subsequent "legislation," the President of the World can probably have the Spice Girls arrested, build a barbed-wire enclosure around Palm Beach County, and enjoin Aborigines from going walkabout, if in his considered opinion these steps are needed in the "War on Terror."
So I do not doubt that, as a factual matter, there is a lot of war power about, broken up into useful bits waiting to implemented. My question is, Can anyone who believes in this sort of thing give us any good reason for believing that this vast array of undefined power has anything to do with the Constitution as actually written and ratified? I think they would have some trouble doing that.
Edward S. Corwin's Total War and the Constitution (New York: Alfred A. Knopf, 1947) helps set some of the issues in perspective. Here, the distinguished jurist and constitutional historian treated the historical growth of the so-called war power. He noted that the first line of Article II: "The Executive power shall be vested in a President of the United States of America," is not very conclusive. On a common-sense view, this seems to mean that whoever held the soon-to-be-overinflated office would "execute" the laws made by Congress.
Thus there is no blob-like grant of "executive power." The president is a glorified doorman, constable, and occasional general, when Congress declares a war. Hardly an office worth the time of anyone on The West Wing.
Alexander Hamilton wrote in The Federalist (#69) that even in war, the president's power "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" (quoted, p. 14). Not much cosmic rulership there. No one need deface some mountain side on that basis, unless a president did a really good job of actually defending the actual country.
TRANSFORMING IS NOT THE SAME AS 'SAVING'
It was Lincoln, more than anyone else who invented the now-standard conception of an immeasurable War Power inherent in the Office of president. (Please bear with the sham 18th-century capitalization.) His absurd, cobbled-together theory rested on the mere juxtaposition of two clauses, the one that enjoins the president to see that the laws are enforced and the now-sanctified commander-in-chief clause. Congress let Lincoln's various initiatives slide and is therefore said to have "ratified" them, thereby yielding new powers for the presidency. (See Corwin, pp. 16-22.)
As Raoul Berger has written, neither clause was a grant of power, and two nothings equal nothing.
Anyway, this is what is called a "living constitution"; it is quite a bit like having no constitution. A fitting companion to Lincoln's inventions was General Orders #100, drawn up by the immigrant quasi-Hegelian political philosopher Francis Lieber, for the Union War Department. Buried in article after article of humane-sounding detail, the Orders allowed their own violation whenever "military necessity" required such, in the opinion of the commander on the scene. This was very much the same as Lincoln's view of the Constitution.
THE FRANCO-AMERICAN REVOLUTION
The "civil war" was the North American counterpart of the French Revolution. Why might someone say that? Precisely because the war instantiated the French revolutionary doctrine of the integral Nation to which anyone and anything might be sacrificed, indeed must be sacrificed given a big enough emergency.
That in itself ought to be a strong argument against nationalism. It is why in the 1920s the Vatican excommunicated the French rightist Charles Maurras. Maurras exalted an eternal, integral French nation over all else in the world. The Church saw this as a neo-pagan heresy. It was precisely that.
ROUNDING OFF LINCOLN'S INNOVATIONS
Corwin was interested in learning how, at the level of legal doctrine, we had gone from the idea of delegated and enumerated powers to an all-encompassing war power. He found that the Supreme Court had done its part in the process. Thus: "Shortly following World War I the Court, speaking by Chief Justice White, declared 'the complete and undivided character of the war power' to be 'indisputable'...." (p. 36).
Even worse, in the 1936 Curtiss-Wright case, Justice Sutherland discovered that in the American Revolution the sovereign prerogative of the English King had lighted on the shoulders of the American union by some mysterious path. This is not quite the aquatic farce involving a watery tart with a penknife, mentioned in Monty Python and the Holy Grail, but it is close enough. Evidently, an unspecified War Power extra-constitutionally underlay the confederacy, passing onto the presidency, as soon as that office was available to use it.
(And some people find the notion of secession to be an importation from outside the Constitution!)
BAD OLD DOCTRINE OR BAD NEW DOCTRINE?
Corwin wrote that Alexander Hamilton had not exactly been consistent in his comments on what powers the proposed federal government would dispose of in wartime. In Federalist #23 Hamilton reasoned that infinite dangers implied infinite powers to meet them (Corwin, p. 35). He might have mentioned the infinite powers a bit more often, if he believed in them, but I suppose he wanted to soothe the ratifying sheep.
Now, the infinite powers in question might rest with Congress and not with the president, in which case Hamilton's view here is reasonably consistent with what he said elsewhere.
I think the real question is whether or not we want anyone, at any time, to have a bottomless pit of power over people's lives, property, and the rest. The question arises "even in" or especially in wartime, which is precisely when such a monstrous claim is most likely to be urged on us. John Taylor of Caroline's critique of John Marshall's jurisprudence rested on a denial that the American Constitution knew any powers whatsoever but those that were clearly enumerated and granted in the document by consent of the ratifying states. Marshall's deductions from theories of sovereignty did not impress Taylor.
Similarly, Patrick Henry warned in the Virginia ratifying convention that under a broad construction of war powers in the proposed Constitution, ambitious presidents might do virtually anything tyrannical that came to mind under the plea of necessity. Now I must concede that a body of doctrine existed under English law in relation to wars and emergencies which was well adapted to the future construction of the various empirically verifiable war powers that the present administration is riding down the historical turnpike paved with good (so they say) intentions.
I grant that Congress may have originally held claim to such powers, if they existed at all. Given the initially bad doctrine, it was perhaps safer in those hands than in the hands of One Man and his nuclear football. Corwin's later chapters detail the further engrossment by presidents of these powers, whatever their origin. Naturally, he spends much time on the shenanigans of FDR in bringing about our entry into the war and then in running the colossal national-socialist war effort.
By the time Corwin concluded his book, he was not very optimistic about the future. Over time, actual presidential practice had called forth the doctrine that it was possible constitutionally for a president to function as a dictator during war. His extraordinary powers for which there was still no textual support ceased to exist in time of peace. Corwin feared because of World War II, the "wartime constitution" had so infected the "peacetime constitution" that the above doctrine, such as it was, was no longer of any consequence.
It is interesting that for some reason a new edition of Clinton Rossiter's hymn of praise to presidential dictatorship, entitled, strangely enough, Constitutional Dictatorship, is being republished. It would be far better for someone to re-issue Corwin.
That said, I have to add that a far more radical critique than Corwin's seems necessary in the present situation. Someone should explain exactly what "war" is being carried on today. It would be nice to see a declaration of war other than the Enabling Act of 9/12, which on the face of it gives George W. Bush more powers (whatever their source) than the German Reichstag gave to a subsequently famous Austrian immigrant in April of 1933.
It would be interesting to know if Congress itself had such powers to "delegate." But there I go dreaming again.
It would be useful, in fact, to know whether or not the whole constitutional project has been a complete waste of time, or alternatively, whether or not the high-toned Federalist gentry Hamilton, Madison, Jay, etc. actually intended to create the monstrous concentration of power with which we now contend. Nothing short of an unflinchingly radical critique of US political institutions and their history will bring us anywhere near the truth. Our problems did not begin with Bill Clinton, FDR, or even Woodrow Wilson.
Meanwhile, POTUS, the million-megaton gorilla, can do what he wishes. He apparently wishes to bring us, simultaneously, advanced social democracy, victimology, and perpetual war for perpetual peace. Could Al Gore have been any worse?
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