The Constitution will still work for us, if we’d only use it

Summary:  We’re told that the Constitution has become obsolete, lacking the facilities necessary to cope with threats in the 21st century.  That we must blindly trust in the President to wield our armed forces, making him a veritable Caesar.  It’s not so, as a glance at the Constitution will show.

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  1. The continuing power of the US Constitution
  2. What are “offenses against the law of nations”?
  3. What are “letters of marque and reprisal”?
  4. Examples of advocacy, that the President should become Caesar, master of the Legions
  5. Update:  “What Happened to the American Declaration of War?”
  6. For more information

(1)  The continuing power of the US Constitution

Despite the many voices urging us to junk the Constitution and put our faith in the President–like trusting sheep–the Constitution does provide the mechanisms to handle crises in the modern world (which in essence are much like those of the past): The terrorism of al Qaeda; Iraq’s flouting of the nuclear nonproliferation rules;  the pirates of Somalia;  the rulers of Libya threatening to massacre its people.  We face a wide range of challenges which require military force — but not war.  The Constitution provides appropriate tools:

US Constitution:  Article One, Section 8 – Powers of Congress

The Congress shall have Power … To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

None of these threats we have faced so far are the “ticking bombs” which our advocates of domestic tyranny use as their standard justification.  History shows that Congress can act swiftly when the danger is clear and imminent.  They do not do so because we do not require them to do so.  Any action creates career risk.  Patronage, regulatory extortion, and after-the-fact investigative hearings are the path to long-term success because we let it be so.  We set the priorities for Congress every two years.

(2)  What are “offenses against the law of nations”?

This clause is both broad and clearly applicable to the world of today.  We have signed treaties that define these laws, and we belong to international organizations that decide these things — with Congress’ approval of action as the final step.  This is a powerful tool, allowing the United States to legitimately act to preserve peace in the world.

(3)  What are “letters of marque and reprisal”?

These were mechanisms by which States used force for private and public purposes in an era in which both police and the military were almost non-existent.  The earliest uses of this phrase comes from the 13th century.  The earliest use in English is from the reign of Edward III, the Statute of the Staple (1353; see Wikipedia), authorization for seizures by individuals to secure compensation for losses.   Over time the usage broadened in meaning.

In the 17th and 18th century, English reprisal documents, and to some extent earlier, the word marque frequently is used … giving authorization specifically for seizures of enemy property primarily for the purpose of inflicting injury … and to confine the usage of letters of reprisal to authorization for reprisals in the strict sense.

… In thinking of reprisal in the strict sense it is necessary to remember that the original damaging prizal {prize} for one legally might take re-prizal must have been unlawful. … Speaking exactly … {r}etailiation involves the use of force to inflict an injury in return for an injury inflicted; reprisal involves the use of force to secure compensation for a loss by the taking of property.

— Grover Clark, “The English Practice with Regard to Reprisals by Private Persons“, The American Journal of International Law, October 1933

(4)  Examples of advocacy that the President should become Caesar, master of the Legions

While the Constitution dies a slow death, scholars and attorneys debate the details.

(a) The modern breakthrough article justifying supremacy of the Executive Branch:  “The Continuation of Politics by Other Means: the Original Understanding of War Powers”, John Yoo (Prof Law, Berkeley), California Law Review, March 1996 — Yoo later earned a place in the annals of infamy by writing the legal opinions justifying torture for President Bush Jr. at the Office of Legal Counsel.

(b) A powerful rebuttal:  “The Law – John Yoo and the Republic“, Louis Fisher, Presidential Studies Quarterly, March 2011 — Abstract:

In his articles, books, and legal memoranda for the U.S. Department of Justice, John Yoo is well known for favoring broad and even exclusive presidential power in the field of national security. Less understood is his dependence on the British model and the prerogatives it extended to the king over external affairs. In his writings, Yoo devotes little attention to the framers’ rejection of British executive prerogatives. Even less does he acknowledge their commitment to a republic, a form of government in which sovereign power is vested not in an executive but in the people.

(c) Interpreting the President’s powers broadly and those of Congress narrowly:  “The Quasi War Cases – and Their Relevance to Whether ‘Letters of Marque and Reprisal’ Constrain Presidential War Powers“, J. Gregory Sidak (bio here), Harvard Journal of Law & Public Policy, Spring 2005 — Abstract:

Constitutional scholars cite three Supreme Court decisions arising from the undeclared Quasi War with France in 1798-1800 as support for the proposition that Congress may authorize war of any magnitude, and that, except in case of sudden or imminent attack on the United States, this congressional authority displaces any right of the President to use military force of even modest magnitude without prior congressional authorization. The textual hook claimed by these scholars for so reading Bas v. Tingy,  Talbot v. Seeman, and Little v. Barreme  is the phrase in Article I, Section 8 of the Constitution that immediately follows the grant to Congress of the power “To declare War” — namely, the power to “grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”

These additional words, it is argued, are placed in the War Clause because the Framers intended that Congress, and Congress alone, have the power to authorize not only “general” or “perfect” war through a formal declaration of war, but also “limited” or “imperfect” war. It is further argued that the temporal proximity of the three Quasi War decisions to the framing of the Constitution strongly implies that the Framers meant to constrain the President’s ability to use military force in a manner short of full-scale war.

This assumes that we are limited when reading the Constitution to the applications of the words used in the past.  In the past these clauses were used only to fight pirates, so we must only use them so.  Bizarrely, the same people who advocate this narrow interpretation also advocate expanding the President’s powers in ways that would have horrified the Founders.

English and American history is largely a process of rethinking our foundation documents, seeking how best to apply them to our time.  King John signed Magna Carta in 1215, yet it was used in the 17th century justify an expansion of the rights of Englishmen (see Wikipedia).  The Bible, Declaration of Independence, and Constitution inspired the long effort to free slaves in America, despite narrow interpretations cited by slavers to justify owning other people.

(d) Unintended hilarity

Another product of the cottage industry of attorneys for greater presidential power, in which the author suggests that we bend over and take the inevitable:  “The War on Terrorism and the Modern Relevance of the Congressional Power to Declare War,” Robert F. Turner (Prof, U Virginia Center for National Security Law; bio here), Harvard Journal of Law & Public Policy, March 2002 — Quite amusing, in a gallows humor sort of way.  Filled with bon mots such as this:

The fact that the power of Congress to declare war is a moribund anachronism should not be a great cause of concern. In the first place, it reflects the fact that the kind of adventuristic policies the Framers wished to check have now been outlawed by the world community.

(e) A sad history and measured analysis.  Very much worth reading:  “War and American Constitutional Order“, Mark E. Brandon (Prof Law, Vanderbilt U; bio here), Vanderbilt Law Review, 2003 — Note the lists at the end of declared and undeclared wars.  Ending:

The antifederalist John DeWitt claimed that the proposed Constitution of the United States was “nothing less than a hasty stride to Universal Empire in this Western World.”  He was wrong, of course. The Constitution was not a hasty step. Nor need it (nor the government it authorized) have been imperial in the sense DeWitt intended.   But as Felix Frankfurter noted in the Steel Seizure Case, “The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.”

I am suspicious of apocalyptic visions and prophetic predictions of doom. Still, I sense reasons for disquiet over the health of constitutionalism in the United States. My focus here has been only on one aspect of the American order: the history and practice of militarism. The ethos that has ignored it, the institutional spinelessness that has permitted it, and the judicial doctrines that have justified it threaten to enfeeble constitutionalism in America. Pace Mansfield and Winthrop, this is the dominant theme of the American century.

(5)  “What Happened to the American Declaration of War?”

“”What Happened to the American Declaration of War?“, George Friedman, Stratfor, 29 March 2011 — Excerpt:

Rather than ask for a declaration of war, Johnson used an incident in the Tonkin Gulf to get a congressional resolution that he interpreted as being the equivalent of war. The problem here was that it was not clear that had he asked for a formal declaration of war he would have gotten one. Johnson didn’t take that chance.

What Johnson did was use Cold War precedents, from the Korean War, to nuclear warfare, to covert operations to the subtle distinctions of contemporary warfare in order to wage a substantial and extended war based on the Tonkin Gulf resolution — which Congress clearly didn’t see as a declaration of war — instead of asking for a formal declaration. And this represented the breakpoint. In Vietnam, the issue was not some legal or practical justification for not asking for a declaration. Rather, it was a political consideration.

Johnson did not know that he could get a declaration; the public might not be prepared to go to war. For this reason, rather than ask for a declaration, he used all the prior precedents to simply go to war without a declaration. In my view, that was the moment the declaration of war as a constitutional imperative collapsed. And in my view, so did the Johnson presidency.

After the war, Congress created the War Powers Act in recognition that wars might commence before congressional approval could be given. However, rather than returning to the constitutional method of the Declaration of War, which can be given after the commencement of war if necessary (consider World War II) Congress chose to bypass declarations of war in favor of resolutions allowing wars. Their reason was the same as the president’s: It was politically safer to authorize a war already under way than to invoke declarations of war.

All of this arose within the assertion that the president’s powers as commander in chief authorized him to engage in warfare without a congressional declaration of war, an idea that came in full force in the context of nuclear war and then was extended to the broader idea that all wars were at the discretion of the president. From my simple reading, the Constitution is fairly clear on the subject: Congress is given the power to declare war. At that moment, the president as commander in chief is free to prosecute the war as he thinks best. But constitutional law and the language of the Constitution seem to have diverged.

… I began by talking about the American empire. I won’t make the argument on that here, but simply assert it. What is most important is that the republic not be overwhelmed in the course of pursuing imperial goals. The declaration of war is precisely the point at which imperial interests can overwhelm republican prerogatives.

… I am making the argument that the suspension of Section 8 of Article I as if it is possible to amend the Constitution with a wink and nod represents a mortal threat to the republic. If this can be done, what can’t be done?

(6)  For more information

Articles and studies:

  1. Examples from history of letters of marque and reprisal
  2. When Wars Begin: Misleading Statements by Presidents“, Louis Fisher (Library of Congress), Presidential Studies Quarterly, March 2010

Posts about the President’s war powers:

  1. Please read: Forecast: Death of the American Constitution, 4 July 2006 — Originally a forecast; a few years later it’s an obituary.
  2. The Constitution: wonderful, if we can keep it, 15 February 2008
  3. Congress shows us how our new government works, 14 April 2008
  4. See the last glimmers of the Constitution’s life…, 27 June 2008
  5. Another step away from our Constitutional system, with applause, 19 September 2008
  6. Recommended reading about the Constitution, 17 March 2010
  7. The President’s big stick (domestic): his National Emergency Powers, 12 June 2010
  8. Code red! The Constitution is burning., 5 August 2010
  9. The guilty ones responsible for the loss of our liberties, 11 September 2010
  10. War is the health of the state, 18 September 2010
  11. A great philosopher and statesman comments on the Bush-Obama tweaks to the Constitution, 10 October 2010
  12. This week’s news: many stories showing that the Constitution is dead, 8 December 2010
  13. We’re at war, again. Another shovel of dirt on the corpse of the Constitution., 21 March 2011
  14. Conservatives tells us not to worry about the Constitution’s death, 23 March 201

1 thought on “The Constitution will still work for us, if we’d only use it”

  1. "When Wars Begin: Misleading Statements by Presidents", update

    Well worth reading: “When Wars Begin: Misleading Statements by Presidents“, Louis Fisher (Library of Congress), Presidential Studies Quarterly, March 2010 — Abstract:

    We are familiar with the false justifications made by President George W. Bush for initiating military action against Iraq, and also the false claim made by President Lyndon B. Johnson in August 1964 that there had been a “second attack” in the Gulf of Tonkin. But the record of presidential deception in matters of war runs much deeper and helps underscore why the framers feared executive wars and tried to check them.

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