War Powers Act

The War Powers Act was passed in 1973, in response to the Vietnam War debacle. Our country got into the Vietnam war slowly, gradually, at the direction of presidents without the input of the Congress (other than their budgetary capacity of course—they could always have denied funding!).

In 1973 Congress said, “Never again. This country will only go to war after the people have discussed it and approved it, through their representatives in Congress.” When you look at the Constitution it seems obvious to me that the Founders wanted it to be this way. They had just fought a revolution against a King who could make war on a whim. The last thing they wanted was a President with the same unilateral warmongering power. They gave Congress the power to declare war, and made the President the commander-in-chief; the President only executes military actions after the Congress has decided action is needed (see pertinent passages from the Constitution below).

I think Congress was correct in the assertion of their power in 1973, and I think we need to reassert the correctness here in 2011. Every president since 1973 has pushed back against this law (except for maybe Jimmy Carter, and also Gerald Ford but he’s a special case anyway). Presidents like the power of their office and are always looking to expand it.

George W. Bush used 9/11 to greatly expand the presidential/federal powers, from ramming wars through Congress and torturing prisoners to illegally wiretapping Americans. Many people are surprised that Obama is not only not pulling back from these outrages but pushing them forward. But we shouldn’t be surprised. This is not an issue of ideology; it’s an issue of power. Every president chooses to increase the power of the office because it makes him more powerful now, and who cares what the next guy might do with it.

Pertinent passages from the US Constitution:
Article I, Section 8:
The Congress shall have power to… declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Article II, Section 2:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

This is all it says about the President’s duty in terms of war. Obviously the Congress was vested with the power to decide when the military is used.

Redacting the Constitution

The Republicans read the Constitution on the House floor, as promised, but they didn't read it as written. They skipped the passages that have been altered by amendments, such as the passages that count slaves as three-fifths of a person. This was an intellectually dishonest action, but perfectly constructed politically. All the legions of uninformed people watching Fox will believe that the Constitution was divinely written, since there doesn't seem to be any sections that have needed to be changed.

As I said below, the main purpose was to position the Republican Party as the defender of the Constitution, and they just showed how hollow their stance is.

The New York Times editorial today had this to say about the Republican charade:

Members of the House might have thought they were bringing the Constitution alive by reading it aloud on Thursday. But they made a crucial error by excising its history. When they chose to deliberately drop the sections that became obsolete or offensive, and which were later amended, they missed a chance to demonstrate that this document is not nailed to the door of the past. It remains vital precisely because it can be reimagined...The reading was conceived so that Republicans could demonstrate their fidelity to the document and make it seem as though Democrats had abandoned it...The effect of Thursday’s reading, in case anyone was actually paying attention, was to wrongly suggest that the document was seamless and perfect, as if carved in marble rather than stained with sweat and American blood.

Yale Law Professor Jack M. Balkin wrote in his blog that reading the Constitution as a whole would remind us that it is a work in progress:

The Constitution is not perfect. Nor are our political institutions. Nor are the American people. But we can take pride in our Constitution precisely because we Americans have continually sought to improve the Constitution, our institutions, and ourselves over time. We have not always been successful in these efforts. We have made many mistakes along the way, and we have committed many injustices. We continue to do so to this very day. The point rather, is that by creating this great experiment in self-government-- the United States Constitution-- we have committed ourselves to achieving a more just, free and equal society under law and we have adopted our Constitution and amendments to it as a way of realizing those commitments in history. It is a task that began with the founding and continues to this very day. It is a task that is never finished.

Reading the entire Constitution is a way of reminding ourselves that the Constitution is always a work in progress; that it has been flawed in the past and probably is still flawed in the present; that what we have now before us is not necessarily the final version of the Constitution, but that the Constitution can always be improved and that it must be improved; that no matter how much our political institutions may have failed us in the past, and no matter how much we have failed ourselves in the past, political redemption is always still possible; and that We the People of the United States can still always strive for a more just, more free, and more equal country-- what the Preamble of the Constitution calls a "More Perfect Union."

Reading the entire Constitution-- including its oblique references to slavery--is a way of engaging in proper humility about the products of flawed human beings, but it is also a way of expressing faith in eventual improvement. If the Constitution once allowed great evils, and now it does not, perhaps someday we will be able to recognize the current evils it still allows, and ameliorate them as well.

Reading the entire Constitution should not be an act of shame that politicians avoid. It should be an act of hope.

I'd like to see progressive politicians standing up and claiming the Constitution for liberals as Mr. Balkin does so eloquently. See my post below, "Progressives Need to Claim the Constitution."

Progressives Need to Claim the Constitution

In recent years conservatives have laid claim to the U.S. Constitution; they act as if they alone uphold the principles contained within our founding document. Of course it’s only gotten worse in the last two years with the Tea Party. This week Republicans have announced they are going to read the entire Constitution aloud in the House of Representatives the first day of the new Congress, and I’m sure it’s going to be a circus since every representative is going to want his or her chance to grandstand for the cameras.

When many liberals think about the Constitution they seem to only discuss its undemocratic and unliberal aspects: slavery was sanctioned, women couldn’t vote, only white male property-owners could vote, etc. But there are many points on which conservatives are mistaken about the Constitution and I think it would be to the progressive movements’ advantage to challenge conservatives on this issue.

I think it’s time for progressives to reclaim the Constitution.

I’m no scholar of the Constitution, or even a historian, but I’ve read many books about our nation’s history, including one about the writing of the Constitution, “A Brilliant Solution: Inventing the American Constitution,” by Carol Berkin.

There are a number of points progressives can make. First, conservatives are always arguing that we need to adhere to the “original intent of the Founders” as if the Constitution were a sacred document written by God that can’t be modified in any way. The authors of the Constitution would have been astounded that anyone would think that way.

I can give several reasons for this opinion. Just for starters, what we now call “The Constitution” is our second constitution, written to replace the Articles of Confederation, which was our original governmental document. Within a few years after the Revolutionary War was over it became clear that the weak national government allowed under the Articles could not solve the enormous problems facing the new nation.

The Articles of Confederation had been written by many of the same men who gathered for the Constitutional Convention in 1787. The Constitutional Convention was made up mostly of self-chosen men who thought there needed to be a more powerful central government. Those who didn’t think the Confederation needed to be changed stayed away.

In fact, Ms. Berkin calls it a coup d’etat: The men who gathered in Philadelphia in May 1787 “gathered behind locked doors and bolted windows to overthrow the legitimate government established by the Articles of Confederation and, by writing the Constitution, to stage what can only be called a bloodless coup d’etat.”

But the main point is this—our Founding Fathers’ first try at inventing a government lasted ten years from when it was written until when it needed to be completely redone.

Secondly, the Constitution contains an article (Article V) explicitly stating that all parts of the Constitution can be amended, except for the slavery clauses (which had to stay in effect through 1808) and the right of all states to have an equal vote in the Senate. If we wanted to amend the Constitution to eliminate the presidency, as crazy as that may sound, we could. Clearly, the authors of the Constitution saw that there could be the need to change all aspects of our government to deal with changing circumstances, and as a result left virtually every clause open to revision.

In addition, most of us are unaware that there was substantial opposition to the Constitution during the ratification process. These opponents were called Anti-federalists, and among them were some, like Thomas Jefferson, who today we consider to be one of the Founders of our nation. Jefferson was particularly nervous about the presidency. Ms Berkin writes, “He predicted that Virginia would reject the Constitution—and gave no indication that he would regret it. As Christmas 1787 neared, Jefferson confided to a friend, ‘As to the new Constitution I find myself nearly a Neutral…’”

Many people were opposed to the ratification of the Constitution because it did not include a bill of rights, which was a common part of state constitutions at that time. James Madison introduced twelve amendments during the very first Congress under the new Constitution, and ten of these were passed and ratified. In other words, the Constitution was amended ten times within the first year of its existence.

I don’t think any of the men who participated in the writing of our Constitution would think twice about the need for revision considering all of the changes that have occurred in this country since 1787. The Constitution was written before the invention of railroads, electricity, the internal-combustion engine, and the telephone. It was written in a much more agrarian age, just as the industrial revolution began. In fact, they would probably be surprised at how little we have changed it.

One of the reasons the Tea Partiers and conservatives like the Constitution is that it gives a lot of power to the states. But as I mentioned above, one of the main reasons the men gathered in Philadelphia in 1787 for the Constitutional Convention was because the weak national government was not working.

We forget that after the Revolutionary War the thirteen colonies became thirteen sovereign nations, joined in a very loose confederacy. The Articles of Confederation declare that “each state retains its sovereignty, freedom, and independence.” The states competed with each other—they were individual nations vying for dominance. Each state imposed tariffs and trade barriers and had its own currency. Interstate commerce was difficult and expensive.

The Articles gave the Confederation the power to declare and make war, but little else. The Confederation had no separate executive branch, no independent judiciary, and no upper chamber in the legislature. There was one assembly in which each state had a single vote, regardless of its size. To insure that the Confederation would stay weak, the Articles denied it the power of taxation.

Technically the Confederation may have been responsible for the common defense, but because there was no funding mechanism for the national government, the ability to defend the national interest—against the British who still had forts on the western frontier, the French in the southwest, Native American tribes, and pirates marauding merchant vessels in the Mediterranean—was extremely limited.

Interestingly enough, it seems like this type of Confederation is what the Tea Party members want to go back to, a nation of allied states with a federal government responsible only for defense, and no ability to tax. It didn’t work in 1785 and it sure wouldn’t work today.

Lastly, many people don’t realize that the U.S. Postal Service is specified in the Constitution. The authors saw the value that a widely available postal service would provide to a thriving national economy. Article I, Section 8, Clause 7 empowers Congress to “establish Post offices and Post Roads.” Clearly the Founders were not adverse to the federal government building infrastructure; there just wasn’t much of it to build in the pre-industrial 18th century. Today if someone suggested a nationally-run telecommunications system they would be denounced as socialist.

The most important point, however, is that the Founders expected the Constitution to be amended as needed. During the summer of 1787 the Constitutional Convention was riven by disagreements and many participants feared they could never finish the job. When it was done they feared it would never be ratified. Further, none of them expected this government to last forever. Benjamin Franklin noted that “with luck and wisdom they would produce a government that could forestall, for a decade perhaps, the inevitable decline of the Republic into a tyranny of one, a tyranny of a few, or a tyranny of the majority.” The delegates were mainly concerned about the effect of greed and lust for power, which, they felt, could corrupt anyone.

We have modified the Constitution seventeen more times since 1789, and many of these have been the result of new ideas about inclusiveness and democracy: the end of slavery (XIII), direct election of Senators (XVII), and women’s right to vote (XIX) are prominent examples.

Progressives should embrace the idea that the updating of our Constitution to adjust to new ideas and understandings was the original intent of the Founders.