HOW THE IMPERIAL PRESIDENCY HIJACKED THE CONSTITUTION
By Peter Irons. Metropolitan Books. 308 pages.
Conservative judicial scholars love the Founding Fathers, and they have created a legal theory called "originalism" in which the founders' words essentially are carved in stone. If you're stuck with a complicated legal question, just think about what James Madison would do. "The Constitution means what the delegates of the Philadelphia Convention and of the state ratifying conventions understood it to mean; not what we judges think it should mean," Supreme Court Justice Clarence Thomas said in a 2001 speech.
Why do conservatives love originalism so? Partly it's because tightly tethering the law to one document, and to the men who wrote it, is said to reduce judicial discretion, and hence confusion. Originalism has the additional advantage of squashing liberal policy aims. Madison didn't have anything to say about gay rights or abortion, so states should be able to restrict them all they want.
But Peter Irons, a professor of political science at University of California, San Diego, wants to turn the sword of originalism back on its wielders. His theory, laid out in his new book, War Powers, is that the Founding Fathers wanted to severely cramp a president's ability to conduct wars. True originalists, Irons argues, should oppose the legality of the war in Iraq and much of how it's been carried out.
In making this argument, Irons is persuasive on one point: The Constitution gives Congress the power to "declare war," and it hasn't done so against Iraq. Congress did authorize the Iraq invasion, but it has not made a formal declaration of war as mandated by Article I, Section 8, of the Constitution.
The difference between authorizing a war and declaring one may seem insignificant. But originalists, Irons argues, should be concerned about strict fealty to the Constitution's text, which is clear, as were the debates on this issue at the Philadelphia Convention. One South Carolina delegate suggested vesting the power to declare war in the president. Elbridge Gerry of Massachusetts responded that he "never expected to hear in a republic a motion to empower the Executive alone to declare war." Everybody supported Gerry.
Irons does a good job of walking readers through the gradual usurpation of this power by various presidents. George Washington deferred to Congress when weighing a war against the Barbary States of North Africa in 1796. As president in 1812, Madison asked Congress for a formal declaration of war against the British, calling his request "a solemn question which the Constitution wisely confides to the legislative department of the government."
Both William Howard Taft and Woodrow Wilson started wars without congressional declarations, but at least expressed guilt about doing so. Since World War II, however, Congress has been sidelined. It never declared war during U.S. conflicts in Korea, Vietnam, Afghanistan or Iraq.
Irons contends that people who love the Founding Fathers should be outraged that Congress no longer bothers to declare wars. After that, Irons overreaches.
He argues that presidents are overly aggressive and exceed their constitutional powers in wartime, from Lincoln's restrictions on individual liberties during the Civil War to the holding of prisoners at Abu Ghraib. That's a plausible argument to make. But once he leaves the strict question of who can declare war, his historical backup is thin.
Liberals have attacked conservatives for being opportunistic with their originalism. Irons is being opportunistic, too. He hates war and most current U.S. political leaders; the Founding Fathers happen to have placed a couple sharp arrows in his quiver.
Nicholas Thompson is a fellow at the New America Foundation and a contributing editor at Legal Affairs.
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