An "invitation to struggle"
Good morning, and welcome to Talking Europe for January 3, 2020. Thank you for the shares and forwards on my last post — and welcome to those who have subscribed this week!
I wanted to share my thoughts in the wake of the assassination in Baghdad by an American drone of the Iranian General Suleimani. The assassination represents, according to experts on the Middle East, an escalation in the contest for power in the region between the U.S. and Iran and could portend a major new shooting war between the two countries. As the killing was ordered by the president alone without any involvement of the Congress, it put me in mind of the long debate over war powers in American history.
War powers, what are they good for?
In the earliest days of the American republic, one of the bitterest controversies between the conservative Federalists and the liberal Jeffersonians was occasioned by President Washington’s Neutrality Proclamation of 1793. Washington (at that time a person and not a city) wanted to keep the United States out of the war between revolutionary France and the other European powers. The Neutrality Proclamation forbade American citizens from participating in the war or assisting either side.
But the Constitution gave to the Congress, and not to the president, the power to declare war. So could the president decide, on his own, not to declare one?
Thomas Jefferson, then the secretary of state, thought the answer was no and eventually resigned from the cabinet over this issue. His nemesis, Alexander Hamilton, disagreed and argued here, as he did so often, for more rather than less executive power.
The debate over the Neutrality Proclamation was carried on through the summer of 1793 in a series of dueling newspaper essays written by Hamilton (under the pen name “Pacificus”) and his Jeffersonian opponent James Madison (writing as “Helvidius”).
Hamilton argued that the president had, essentially, any power not expressly granted to Congress:
“The general doctrine of our Constitution is that the executive power of the Nation is vested in the President; subject only to the exceptions and qualifications which are expressed in the instrument.
“Two of these have been already noticed—the participation of the Senate in the appointment of Officers and in the making of Treaties. A third remains to be mentioned: the right of the Legislature ‘to declare war and grant letters of marque and reprisal.’
“With these exceptions the executive power of the Union is completely lodged in the President.”
But Madison, while admitting that the president was charged with managing interactions with other nations, characterized the executive branch as nothing more than “a convenient organ of preliminary communications with foreign governments” — definitely not the branch of government to make substantive decisions over war and peace.
Then, in one of my all-time favorite passages about how war destroys the normal operation of government, Madison explained why the war power, more than any other, must remain with the legislative branch:
“A declaration that there shall be war, is not an execution of laws: it does not suppose preexisting laws to be executed: it is not in any respect, an act merely executive. It is, on the contrary, one of the most deliberative acts that can be performed; and when performed, has the effect of repealing all the laws operating in a state of peace, so far as they are inconsistent with a state of war: and of enacting as a rule for the executive, a new code adapted to the relation between the society and its foreign enemy. In like manner a conclusion of peace annuls all the laws peculiar to a state of war, and revives the general laws incident to a state of peace.”
It’s an image of incredible power: war “has the effect of repealing all the laws operating in a state of peace.” A leader who is empowered to start wars can, in doing so, sweep away any law that gets in the way of that war. He can effectively remake the entire legal system to suit the war. In usurping the war power, he usurps every other power, too.
This is how Madison, the “father of the Constitution,” saw the danger of excessive presidential power in foreign affairs.
The historian Patrick Garrity writes:
“The Pacificus-Helvidius debate in many ways defined the parameters of the seemingly permanent constitutional controversy between the executive and legislative branches over primary control of American national security policy.”
Madison and Jefferson, partisans of revolutionary France, accused the anglophile Hamiltonians of plotting to set up a sort of presidential monarchy in the United States. It was an article of faith for generations of Americans in the nineteenth century that only the election of Jefferson to the presidency in 1800 prevented this.
After WWII, the Madisonian side has lost much ground, to put it mildly, to the Hamiltonian side in this “permanent constitutional controversy.” The Americans and their press talk endlessly now of the president — any president — as “commander-in-chief,” as though he is some kind of warlord, empowered to rule over a militarized populace while dealing death and destruction to America’s “enemies,” which are, conveniently, always numerous and poorly defined.
One of the mysteries of contemporary America is why the Congress has not tried harder to protect its prerogatives in foreign affairs. Shouldn’t the natural operation of “checks and balances” kick in and force, as it were, the Congress to reassert its authority?
One of the greatest scholars of the American Constitution, Edward Corwin, famously described the document’s ambiguity in foreign affairs — some powers given to the president, others given to Congress — as “an invitation to struggle.” Congress has shown little interest in recent decades in responding to that invitation. But maybe the spectacle of an impeached president careening toward a major war will cause the old Madisonian machinery to sputter back to life.
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