Tearing the Constitution is a bipartisan sport!

Summary: There is no Constitutional Party in America. The Left and Right take turns shredding the Constitution. Sometimes they take turns; sometimes they work together. Domestic surveillance without warrant, quotas for hiring (ignoring that “equal protection” nonsense), administrative tribunals replace courts, now even assassination of citizens. Illegal wars provide another example. Here we look at the cries for war from a good Leftist: Prof Juan Cole.

Background

Flush with wielding nearly absolute powers during WWII — culminating in the decision to nuke Japan — in 1950 Truman initiated the Korean War without authorization from Congress. Fatefully, in a faint echo of the Führereid (see Wikipedia) our generals choose to obey the President in defiance of their oaths to obey the Constitution. A whisper to the President probably would have sufficed, perhaps with large effects on our time. (See the previous post for details about the obviously false justifications Truman gave). This was a great fear of the Founders (for example, discussed in several of the Federalist Papers; see the end of this post for details).

The long slow series of presidentially authorized military ventures, each chip off the foundation, culminated in severe breach of the Constitutional fabric.

Now we reap the consequences. The Libyan War will end well or badly, but certainly will justify another massive expansion of Presidential power. Weak Presidents like Bush Jr. and Obama will fiddle with these new powers. Eventually a strong President will boldly use the constellation of power gained piecemeal since WWII, forging a new political regime for America.

As for today, both Left and Right tear away at what remains of the Constitution. Both consider their short-term goals, satisfying their immediate needs, more important than following Constitutionally mandated procedures. After eight years of the Bush Jr. Administration anyone paying attention can see the Right’s disinterest — often active contempt — for the Constitution. Now with Team Obama in the White House, we see the Left is a mirror image (in this respect) of the Right.

A good leftist cries to let loose the dogs of war

To cite one of many examples, see Prof Juan Cole (Prof History, U of Michigan). A textbook example of how tears expand though the Constitutional fabric.

People keep bringing up the need for Congressional approval. I agree that would be better, and don’t agree that Bush actually had it for Iraq. But there is an argument for going to war under a UNSC decision because it is a prior treaty obligation entered into by Congress. See e.g. this comment. This reasoning is the one used in the Korean War. {20 March 2011}

So my question is, does that decision not lay a moral obligation on the US to lend support to the effort of its allies? {3 April 2011}

As for his first post, his assertion is false. No treaty with the UN authorized the President to made war without Congressional approval (see here for details). As for his second point, the NATO treaty is quite clear about our legal obligations. No NATO power has been attacked. We have no obligations beyond that.

On April 3 Cole posts a fascinating guest column, explaining that the no-fly zone was obviously inadequate, as indeed are financing and arming the rebels (that would have been nice to know before starting the war). Any Constitutional procedures are too trivial to discuss, and the President has bound us in blood oath to wage large-scale war in Libya. “The Unbearable Lightness of Our Libyan War“, David A. Westbrook (Prof Law, U Buffalo) — Excerpt:

Let me suggest a rule of thumb: we should not undertake the moral burden of killing when we are unwilling to undertake the existential risk of dying. … The White House made the call, and chose intervention, binding the nation.

Nor do I here wish to discuss whether, as a matter of US law, the executive adequately involved the legislature.

… The fact that multilateral institutions, namely the United Nations, NATO, and the Arab League, have approved of at least some of our action does not alter the basic facts that US personnel, using US assets, are committed to foreign combat. Again, this is our war … Exploiting our air superiority is tempting: perhaps we can do the right thing, in this case prevent “a massacre” that Gaddafi might well have ordered, without putting our own people at risk.

But suppose the leader does not leave, and his forces regroup, and continue to advance?

Suppose we declare a no-fly zone, and the massacre happens anyway, as happened in Bosnia?

Suppose the insurgency fails, perhaps because there are many people who genuinely support the current regime? Or even suppose the insurgency succeeds, and the rebels are not what might be hoped?

Suppose we are simply unsure of ourselves?

In such circumstances, should we be killing people from the air, because it is not very expensive for us, and maybe things will sort themselves out for the best on the ground that we and our allies fly over? That is, if we are insufficiently committed to a civil order to put our own people at risk, are we morally serious enough to kill people, hoping that civil society miraculously sprouts after our rain of destruction?

Our lack of moral seriousness is deeply troubling … nobody thinks that NATO command makes this somehow an un-American fight. The fact that US force is exercised in Libya by CIA personnel does not make the US any less responsible in the minds of the Libyans, or for that matter, the rest of the world.

… Hence my rule of thumb: if we are serious, we should be willing to put troops on the ground and fight. …

This is a call to Empire. I’ll wager that the predictable consequences of US assuming responsibility for other nation’s conduct of their internal affairs — for that’s the open-ended committment these madmen seek — will have large, unforseen, and unpleasant consequences. Which these people to date have not bothered to consider, let alone prepare for.

For more information

The Federalist Papers about the President’s war powers;

#24 — The division of the war powers between President and Congress prevents an all-powerful executive, able to command an army at will.
#26 — The primary congressional war power is the power of the purse, a sure restraint on the President’s perogatives.
#69 — Hamilton explains that the President’s authority as Commander-in-Chief:

[w]ould be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It 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; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies . . .

Relevant articles:

Letter to Senate Majority Leader Trent Lott on War Powers and Kosovo, from the ACLU, 30 April 1999 — esp note the documentation at the end.
“Presidential War Powers in a Never-Ending War“, Seth Weinberger (Asst Prof Government, U of Puget Sound), ILSA Journal of International & Comparative Law, Fall 2006
“When Wars Begin: Misleading Statements by Presidents“, Louis Fisher (Library of Congress), Presidential Studies Quarterly, March 2010
“Obama’s new view of his own war powers“, Glenn Greenwald, Salon, 31 March 2011 — The links to relevant documents are priceless. You should feel the Constitutions’s blood seeping on your hands while you read it. But you probably will not, since you don’t care. More appropriately, chant “Baa, Baa, Baa.”

Posts about recent events in the Middle East: