of the noteworthy features of the very late 20th
and very early 21st centuries is the way
in which everything that was once an historical accusation
has become a defense. Thus, if on the evidence, FDR
had a really good idea where the Japanese fleet was
and where it was going in early December 1941, this
is no longer a charge to be made against him, but
is instead evidence of his farsighted statesmanship.
He had to get us into World War II, by any means necessary,
for our own good; it follows that this history of
deceit and indirection is "justified" by
its good consequences.
on the evidence, the early Civil Rights Movement was
riddled with card-carrying Stalinists, this no longer
calls the broader ideology of that movement into question.
A cynic might say that the massive inroads on private
property and the bureaucratic empire raised up in
the name of civil rights were consistent with the
communists' overall goals, but to say that is, apparently,
the same as being an apologist for slavery. Instead,
Stalinist participation simply proves how advanced,
humane, and loveable the commies were.
are many other examples. Presidential wars, undertaken
without the clear consent of Congress, make up another
such case. Here, too, the argument has been turned
KOREA, AND THE U.N. CHARTER
the summer of 1950, and ever after, critics of President
Truman's manner of committing US forces to combat
in Korea have held that, whatever the merits of aiding
to South Korea may have been, the way in which
he acted was improper and probably "unconstitutional."
The pertinent text, Article I, Sect. 8, of the US
Constitution lodges power "to declare War, grant
Letters of Marque and Reprisal, and make Rules concerning
Captures on Land and Water" with Congress. Defenders
of presidential practice have had to fall back on
a hundred or so so-called "precedents,"
which were in general very thin or irrelevant, or
evidence of successful usurpations, which logically
had no lasting authority.(1)
Old Right figures like Senator Robert Taft (R., Ohio)
never conceded the lawfulness of Truman's entry into
the Korean War. As he wrote in 1951: ""My
conclusion, therefore, is that in the case of Korea,
where a war was already under way, we had no right
to send troops to a nation, with whom we had no treaty,
to defend it against attack by another nation, no
matter how unprincipled that aggression might be,
unless the whole matter was submitted to Congress
and a declaration of war or some other direct authority
obtained."(2) Critics of US
involvement in Indo-China made similar complaints,
doubting aloud that the Gulf of Tonkin Resolution,
obtained by President Johnson under false pretenses,
constituted a declaration of war, or some sort of
acceptable substitute for one.
a season, there was talk of the "imperial presidency"
and a reassertion of Congressional authority in foreign
affairs.(3) One result was the War
Powers Act of 1973. The next several administrations
spent their spare time finding ways around the Act.
THEY TELL US
comes Professor Robert F. Turner to drive the last
nails in the coffin of the Old Right argument. He
has served as Associate Director of the Center for
National Security Law at the University of Virginia
and is a member of the Council on Foreign Relations.
(One naturally wonders what "national security
law" could possibly be.) His coffin-nailing activities
took place in 1996 in the Harvard Journal of Law
and Public Policy. This circumstance, too, is
a bit unsettling, since that journal's acolytes display
a marked overlap with the dreaded Federalist Society.
you say "Neo-Con," boys and girls?
good may come out of Nazareth, after all, so let us
attend to the argument. Deploring a "national
mood of isolationism" in the 1920s and '30s which
derailed Americans' understanding of these matters,(4)
Turner holds that the (capital-F) Founders were worldly
fellows who understood these things. Clearly,
they meant the President to have an unfathomably deep
well of inherent power with which to carry out his
is possible, I guess, that this is all true, but if
so, quite a lot of lying and swindling must have gone
on in the Constitutional Convention and the subsequent
ratifying conventions in order quietly to lodge so
much power in one man and still put the document over
on people who had just fought a revolutionary war
partly in the name of antimonarchism.
is happier with the later "mood" of the
people, who cured of their "isolationism,"
embraced Collective Security after World War II. This
improved national mental health motivated the Senate
to ratify the United Nations Treaty. Turner cites
remarks of Senator Warren Austin (R., Vermont) as
indicative of the new outlook: "a threat to international
security and peace occurring anywhere on earth constituted
a direct threat to the security and peace of
the United States."
under the treaty, "I have no doubt of the authority
of the President in the past, and his authority in
the future, to enforce peace…. [T]he President is
the officer under our Constitution in whom there is
exclusively vested the responsibility for maintenance
to ratification of the UN Treaty and the UN Participation
Act, Turner reasons that both houses of Congress believed
"that the basic commitment to act collectively
in response to armed international aggression had
been made."(6) Amendments put
forward by "unrepentant isolationists" to
restrict presidential power to lead Americans into
the new international paradise were beaten back. The
only problem with the UN's practical workings came
with the onset of the Cold War. The Soviet Union began
using its veto power in its own interests.
North Korean forces invaded South Korea in late June
1950, Truman immediately consulted with UN officials.
is how Congressman Howard Buffett (R., Nebraska) characterized
these events: "On June 25, 1950, the U. N. Security
Council demanded a cease-fire and called on members
to render every assistance to the United Nations in
the execution of this resolution. Nothing was said
about entering the conflict…. But at 12 o'clock noon,
on June 27, President Truman ordered United States
air and sea units to give the Korean Government troops
cover and support. That order put our military forces
into the Korean civil war on the side of the South
Koreans. At 10:45 that evening, 11 hours later, the
Security Council requested members of the U. N. to
supply the Republic of Korea with sufficient military
assistance to repel invasion."
concluded Buffett, "Truman entered that war by
his own act, and not because of a United Nations decision."(7)
minutiae do not detain Professor Turner. In his view,
Truman acted properly through the UN. And contrary
to what he calls the "myth of the imperial presidency,"
Truman consulted with key Congressional leaders, "who
unanimously supported the President's actions…."(8)
This seems a bit too easy.
does not get around the question of whether or not
a Congressional declaration of war was constitutionally
required by saying the President was so kind as to
"inform" and "consult" a handful
of Congressional leaders, who – whatever their virtues
– fell a bit short of being a majority. Turner has
a couple of fallback positions. One seems to be that
in ratifying the UN Treaty Congress knowingly gave
away its power to declare war, entrusting it to
the President's good judgment - in cooperation with
the UN and in the name of securing "peace"
by making war collectively.
cannot get into the odd semantics of UN-speak here
(but see my paper, "The
United Nations Charter and the Delusion of Collective
It is enough to say that redefining war-making as
"peace-making," solely because a number
of nations have formed a club to make war together
in the name of peace, does not necessarily
amend the Constitution of the United States with respect
to Congressional authority to declare war. It might
conceivably do so, but it does not seem obvious to
the naked eye.
Turner also deploys notions of inherent executive
power entirely separate from the UN Charter. These
vast powers, apparently, have existed from time out
of mind, and the ratifiers knowingly signed on for
them in 1787-1788. This, too, is not self-evident,
but must wait for another time.
is interesting, is that Professor Turner in putting
so much stock in the UN Charter as a source of presidential
power has highlighted precisely the problem that Senator
John Bricker (R., Ohio) raised, and sought to correct
with his much-abused Bricker Amendment. The problem
is this: can the President and Senate in effect repeal
or overturn fundamental provisions of the Constitution
by colluding with foreign states? A related problem
is whether or not a President, on his own motion,
can make agreements with foreign states, agreements
that will have, legally, the same effects as treaties.
seems to me that Professor Turner may have inadvertently
reopened the case of the Bricker Amendment; whether
there is a case for the Amendment is a topic
I shall take up at my next opportunity.
is an interesting puzzle that I will mention now.
If the President could go to war in Korea with the
UN and because of the Charter, how does one justify
legally the current war, where a President has acted
neither with the UN nor with a declaration of war
know that some might say that the Resolution of 9/12/01
answers every possible question and covers every possible
contingency. If that is true, we have abandoned all
pretense of the "rule of law," despite our
touching, 200-year old cult of the Constitution. What
See Edward S. Corwin, Total War and the Constitution
(Freeport, NY: Books for Libraries Press, 1970, )
and Raoul Berger, Executive Privilege: A Constitutional
Myth (Cambridge, MA: Harvard University Press,
Robert A. Taft, A Foreign Policy for Americans
(Garden City, NY: Doubleday & Co., 1951),
Cf. Merlo J. Pusey, The Way We
Go to War (Boston: Houghton Mifflin, 1969).
Robert F. Turner, "Truman, Korea,
and the Constitution: Debunking the 'Imperial President'
Myth," Harvard Journal of Law and Public Policy,
19, 2 (Winter 1996), p. 536.
Ibid., p. 540 (my italics).
Ibid., p. 547.
Howard Buffett, Remarks, Congressional
Record, May 21, 1951, vol. 97, Pt. 13, pp. A3760-A3761.
Turner, p. 568.