Thursday, May 8, 2008
Conference speaker Louis Fisher , in testimony before the U.S. Senate Judiciary Committee, Jan. 30, 2007
In recent years, advocates of presidential authority have argued that the title “Commander in Chief” empowers the President to initiate military operations against other countries and to continue unless Congress cut off all funds, presumably by mustering a two-thirds majority in each House to overcome an expected presidential veto. Such a scenario means that a President could start and continue a war so long as he had at least one-third plus one in a single chamber of Congress. Nothing in the writings of the framers, the debates at Philadelphia and the ratifying conventions, or the text of the Constitution supports that theory.
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Louis Fisher on April 10, 2008, in testimony before a House Foreign Affairs subcommittee chaired by Rep. Bill Delahunt:
The British model gave the king the absolute power to make war. The American framers repudiated that form of government because their study of history convinced them that executives go to war not for the national interest but to satisfy personal desires of glory, ambition, and fame. The resulting military adventures were disastrous to their countries, both in lives lost and treasures squandered. I have submitted to your subcommittee a number of my recent articles that elaborate on the lessons drawn from that history.[7]
At the Philadelphia Convention, only one delegate (Pierce Butler of South Carolina) was prepared to give the President the power to make war. He argued that the President "will have all the requisite qualities, and will not make war but when the Nation will support it." Roger Sherman, a delegate from Connecticut, objected: "The Executive shd. be able to repel but not to commence war." Elbridge Gerry of Massachusetts said he "never expected to hear in a republic a motion to empower the Executive alone to declare war." George Mason of Virginia spoke "agst giving the power of war to the Executive, because not [safely] to be trusted with it; . . . He was for clogging rather than facilitating war."[8]
The debates at the Philadelphia Convention and the state ratification conventions underscore the principle that the President had certain defensive powers to repel sudden attacks but anything of an offensive nature (taking the country from a state of peace to a state of war) was reserved to Congress. That understanding prevailed from 1789 to 1950, when President Harry Truman went to war against North Korea without ever coming to Congress.
http://foreignaffairs.house.gov/110/fis041008.htm
On the same panel, Professor Michael Glennon (of Tufts):
The starting point must be the Constitution. In its earliest cases, the Supreme Court recognized a president's obligation to respect congressional restrictions when Congress has authorized "imperfect war" - a war fought for limited purposes. In an imperfect war, Justice Bushrod Washington said in Bas v. Tingy, 4 U.S. 37, 41 (1800), those "who are authorized to commit hostilities . . . can go no farther than to the extent of their commission." The following year, in Talbot v. Seeman, 5 U.S. 1, 27 (1801), Chief Justice John Marshall wrote that "[t]he whole powers of war being, by the Constitution of the United States, vested in Congress, the acts of that body can alone be resorted to as our guides in this enquiry." In the 2001 AUMF and in the 2002 Joint Resolution on Iraq, Congress in effect authorized limited or "imperfect" war. The President is therefore constitutionally required to respect the limits imposed in those two laws; Congress has implicitly prohibited any use of force not authorized therein, and the President's authority is at its "lowest ebb" - lower than it might have been had Congress been silent. This is the critical lesson imparted by Justice Jackson's famous concurring opinion in the Steel Seizure Case, 343 U.S. 579 (1952), which has since been adopted by the Supreme Court as the governing analytic framework.
http://foreignaffairs.house.gov/110/gle041008.htm
And Professor Jules Lobel:
Therefore the Constitution provides that only Congress can initiate warfare—whether it be major military conflicts, small skirmishes or little wars—with the sole exception that the President can use force to respond to a sudden attack against us.
These reasons are as valid today in the 21st century as they were in the 18th century. Madison's claim that, "in no part of the Constitution is more wisdom to be found, than in the clause which confides the questions of war or peace to the legislature and not to the executive department,"7 has been affirmed by the last half century of our history, which demonstrates the need for more independent review by Congress before going to war, not less. While the nature and source of the threats to our national security have dramatically changed since the 18th century, the cost of warfare in lives lost, injuries suffered, and national resources expended is even greater today than it was in 1787. Indeed, one lesson of the current Iraq war is that the need to put a brake on the rush to war and ensure that independent minds evaluate whether war is really necessary is still as compelling today as it was in 1787.
http://foreignaffairs.house.gov/110/lob041008.htm
http://foreignaffairs.house.gov/testimony.asp?committee=6
Thank you so much for arranging and livestreaming this event. My dial-up connection unfortunately can't handle the livestream feed, but having it available on-line will be very helpful. May this dialogue continue and broaden into a wider public discourse about the crucial role of Congress in exercising and controlling our nation's war powers on our behalf.
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