posted 09-02-2002 09:59 PM               

POWER POLITICS
The Constitution Isn't the President's Plaything
Making war, not sense: Why Bush is wrong

Jack N. Rakove

Anyone who has lost sleep recently wondering whether President Bush can unilaterally decide to go to war against Iraq can rest easily again. The president's lawyers have assured him he can. We can be confident they must be right, since the president surrounds himself with good men, and there can be no reason for Congress or the public to question their judgment or integrity, much less their devotion to the Constitution the president is sworn to "preserve, protect and defend." End of story.

Alas, the reasoning on which this assertion of authority rests is deeply problematic, especially in the context of an intended military action requiring extensive preparation, where the nation would be anticipating an eventual threat rather than responding to an immediate attack.

White House counsel apparently rest their case on two sources. One is found in the president's explicit constitutional authority as commander in chief of the armed forces. The other cites the congressional resolutions adopted in 1991 to authorize the use of force to reverse the Iraqi invasion of Kuwait. These extend to the enforcement of United Nations resolutions requiring Iraq to eliminate its weapons of mass destruction and to be subjected to inspections by U.N. officials.

There is, of course, some irony in the image of an administration criticized for its unilateralist posture toward the international community invoking U.N. resolutions to justify its unilateralist posture toward Congress.

But put this irony aside and simply consider the administration's claims within the framework of the Constitution. Three problems immediately arise.

The first lies in the text of the Constitution itself. No casual reader can avoid noticing that the bulk of the national security powers it vests in the government are given to Congress in Article I, including, of course, the power to declare war. The president's sole source of authority is his status as commander in chief.

The president's power to use that authority decisively to engage in hostilities is strongest when the nation is already under attack or the threat is so immediate and palpable as not to allow for congressional consultation and approval. As the saying goes, the Constitution is not a suicide pact. It would be absurd to say that the president has to await congressional approval to defend the nation when hostilities have begun or are demonstrably about to erupt.

This is the plain meaning of an oft-quoted passage from the Aug. 17, 1787, debate at the Constitutional Convention, when the framers voted to give Congress the power "to declare war" rather than "make war." As James Madison's notes indicate, this was understood to leave the president "the power to repel sudden attacks," while preventing Congress from making war in the sense of actively "conduct(ing)" or directing military operations, "which was an Executive function." But under other circumstances, when the same urgency did not intervene and there was time to deliberate, the framers clearly regarded the decision to go to war as the business of Congress.

Had the framers really thought the president had some inherent power to initiate hostilities, it is also puzzling that they explicitly reserved to Congress the power to "grant letters of marque and reprisal" authorizing privateers to raid foreign shipping. Why would they bother to reserve this most trivial form of war making to Congress when the president already enjoyed the extensive power the administration's lawyers claim?

The second major problem lies in the idea that congressional resolutions adopted over a decade ago, under different circumstances, provide an open- ended authorization for the resumption of large-scale hostilities at the president's discretion. No fewer than three presidential elections and six congressional elections, presuming the oft-hinted "action" takes place after November, will have intervened since Bush 41 carried the United States into war in 1991 and before Bush 43 can launch the projected intervention in Iraq. To claim that the narrow legalism of relying on a resolution from 1991 provides an adequate measure of continuing approval from the people or their representatives would make a mockery of the democratic notion of government by consent. Democratic consent in any serious sense cannot be defined as a one- time vote of convenience which subsequent presidents can turn on and off at their pleasure.

The third problem derives from juxtaposing the claims for inherent presidential power with the indefinite state of national emergency in which the nation has arguably existed since Sept. 11

If we are truly living in such a condition, with endless threats of a catastrophic nature awaiting us for who knows how long, then it is high time to reconsider what the appropriate boundaries and competence of the different branches of government should be

Rather than rely on the quaint language of our 18th century Constitution (I for one would love to hear our loquacious secretary of defense fire off a zinger on "letters of marque and reprisal"), we might need to rethink the whole constitutional enterprise as it relates to matters of national security. But if this is what we must do, it will require deeper reflection and intelligence than administration lawyers have yet provided.

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Stanford history professor Jack N. Rakove was the winner of the 1997 Pulitzer Prize for "Original Meanings: Politics and Ideas in the Making of the Constitution."