By Andrew Doris

Azaz,_Syria

Burnt Syrian government’s tanks in Azaz, Syria by Christiaan Triebert

In the face of military conflict, realists tend not to concern themselves with abstraction.  Constitutions are just pieces of paper with rules on them and, unfortunately, states competing for power on the global arena rarely allow those rules to constrain their actions.  Trump is not the first president to launch military strikes unilaterally: Obama did so in Libya, and then again against ISIS; Clinton did so in Bosnia and Kosovo; George H.W. Bush did so in Kuwait;  Reagan did so in Lebanon and El Salvador.  These policies have gone on since the Truman administration, and to some, that makes it old news not worth whining about.

But before the dust settles on last Friday’s missile strikes in Syria and more immediate ramifications emerge to distract our coverage, it’s worth pointing out the elephant in the room for those dwindling few of us who seem to still care about political legitimacy: this was flagrantly illegal. Once I’ve made that clear, I’d like to try to convince a few more of our readers that this actually matters: that constitutionalism in general is a worthwhile field of study that stands to improve the world in meaningful and pragmatic ways.

Why the attack was unconstitutional

The Constitution of the United States is Donald Trump’s only legitimate source of political authority.  The powers of the president are clearly enumerated in Article II of that constitution.  The power to attack foreign nations (or initiate hostilities, or take kinetic military action, or conduct sustained air/ground/counter-terror operations, or whatever euphemism for war you prefer) is not among them.  It is, however, explicitly provided to Congress in Article I, under the non-euphemistic label “to declare war” – a fact which makes its absence in Article II all the more glaring. As Ilya Somin of the Volokh Conspiracy wryly points out: It is a longstanding principle of legal reasoning that we should not interpret laws in such a way as to render large parts of them completely superfluous.”

Perhaps sensing this, the Trump White House hasn’t even bothered to publicize a legal opinion defending the constitutionality of his strikes.  Were it to eventually do so, there are only three arguments it could make.  Here’s why all three of them are feeble.

  1. “The strikes are covered by the 2001 Authorization for the Use of Military Force.”

 

When pressed about the legality of executive action in Syria last week, House Speaker Paul Ryan said Trump “has the authority under the existing AUMF”.  The existing AUMF was passed one week after 9/11, and authorized the president to:

“use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

To allege that the Syrian government – and particularly the chemical weapons facilities targeted by this strike – in any way “planned, authorized, committed, or aided” the 9/11 terror attacks, or “harbored” the people who did, is patently absurd.  None of the 9/11 attackers were from Syria.  Al-Qaeda did not even have any presence in Syria until 2012.  And the presence it has there now is currently fighting AGAINST the government we just attacked; in this case, our military is actually fighting alongside the organization that planned and committed 9/11 (and not for the first time). There are a whole host of reasons the 2001 AUMF is invalid authority to justify new conflicts today, but for the Syrian fight in particular, helping Al-Qaeda combat its enemies seems much the opposite of what that rattled and grieving Congress had in mind 17 years ago.

 

  1. “There’s no need for congressional authorization; because Article II makes the President the Commander in Chief of the US Armed Forces, he can call in limited airstrikes unilaterally.”

John Yoo (author of the infamous “torture memos” under the Bush administration) commonly advocates this view.  It’s also the interpretation Obama used to justify his attacks against ISIS.  Yoo writes:

“[O]ur framers decided that the president would play the leading role in matters of national security…The most important of the president’s powers are commander in chief and chief executive…

[Some] observers read the 18th century constitutional text through a modern lens by interpreting “declare war” to mean “start war.” When the Constitution was written, however, a declaration of war served diplomatic notice about a change in legal relations between nations. It had little to do with launching hostilities.”

This idea – that Congress’s power to declare war merely enables them to write declaratory sentences about war – is as laughable as it sounds: totally incompatible with any good-faith effort to understand the intended meaning of the text, and at complete loggerheads with how the constitution was understood for the first 160 years of our nation’s history.

Linguistically, legal expert Michael Ramsey clarifies that:

“in founding-era terminology war could be “declared” either by formal announcement or by military action initiating hostilities.  John Locke’s classic Two Treatises of Government from the late 17th century referred to “declar[ing] by word or action.”  Blackstone and Vattel, two of the 18th century legal writers most influential in America, also used “declare” in this way… Thus in 18th century terms initiating an attack was as much “to declare war” as was making a formal announcement”

The context of the constitution’s ratification makes it intuitively obvious which definition of “declare” the framers had in mind.  Historian Tom Woods explains:

as the Constitution was being debated, Federalists sought to reassure skeptical anti-Federalists that the president’s powers were not so expansive after all.  For one thing, the Federalists said, the president lacked the power to declare war.  In order for their argument to carry any weight, “declare war” must have been taken to mean the power to initiate hostilities – for no anti-Federalist would have been appeased by “Sure, the president can take the country to war on his own initiative, but the power to draft declaratory statements will rest with Congress!”

And of course, we needn’t rely on intuition: the framers themselves were quite specific.  Consider the following quotes:

“The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature.”– James Madison, in a letter to Jefferson

“This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our interest can draw us into war.” – James Wilson at the Pennsylvania Ratifying Convention

“The Constitution vests the power of declaring war with Congress. Therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure.” – George Washington, while President

“[T]he Legislature have a right to make war…[it is] the duty of the Executive to preserve Peace till war is declared.” The president has merely the direction of war when authorized or begun.” – Alexander Hamilton, quoted here and here.

That last quote is particularly damning to Yoo’s case, because Hamilton was by far the loudest advocate for sweeping executive authority among the framers.  Yet even from him, there was no dispute.  And there remained none, from the founding of our country until the mid-twentieth century: offensive military conflict abroad, whether against major foes like France or minor foes like the Barbary Pirates, required Congressional authorization.  Even minor military actions that arguably fell short of full-scale “war” were shot down by the Supreme Court if they hadn’t been explicitly authorized by Congress (see Little v. Barreme, 1804).  Besides, if firing hundreds of missiles at the capital city of a foreign nation isn’t an act of war, what is?

Why upholding the constitution matters

As mentioned, there is a third argument in favor of Trump’s authority to attack whoever he wants.  To wit, it goes something like this:

“The original meaning of the constitution is irrelevant, because strict constructionism is unworkable; we need the constitution to be a “living document.”

This train of thought is popular among constitutional scholars who favor robust federal power at home and abroad, but must awkwardly reconcile that preference with the constitution’s obvious intention that government be much smaller than they wish. And in some ways, their arguments echo the aforementioned realist cynicim that modern political problems can be meaningfully improved by things as archaic as the “original intent” of a clause written 231 years ago. Aren’t I wasting my time quoting Jefferson and Hamilton, they ask? Why should we care?

The answer comes directly from the mission statement of the Realist Review’s sponsoring organization: “The John Quincy Adams Society is committed to…a new era of realism and restraint in American foreign policy.”  It has one key word: restraint.

If we advocate restraint in American foreign policy, we need to get serious about the business of actually restraining.  The framers of the US constitution were imperfect men who devised a arbitrary way of doing so that suited political realities inapplicable to today’s world; a totally different constitutional arrangement might work just as well or better. But their great wisdom was that whatever arrangement we employ, this “restraint” cannot be trusted to the political instinct of ambitious leaders. It requires real, structural, institutional impediments on power: a system of checks and balances, with a separation of powers that’s actually enforceable.

Realists recognize that peace is not achieved by asking nicely for the most powerful states to not conquer the least powerful states: only power checks power.  So as we forge our internal strategy for advancing restraint in American foreign policy, we should also recognize that we can’t just educate the next generation of leaders on ethics and history and hope they make nobler decisions because of it.  That naively ignores politicians’ incessant incentives to expand their own power whenever they can get away with it.  Only power checks power.

In this way, the framers were realists to their core, and the constitution they devised was a brilliant restraining strategy.  This is likely why the John Quincy Adams Society was named after one of them!  But you don’t have to like the framers at all, nor even the document they drafted, to recognize the need for some sort of restraining mechanism besides persuasion, which cannot be simply sidestepped for political convenience.
This is why the doctrine of “living constitutionalism” perverts the whole endeavor of constitutionalism to begin with.  If a new generation of citizens wishes to change the constitution to better comport with modern necessities, the framers provided a specific amendment process through which to do that.  And if the new generation wishes to overthrow that constitution entirely, and replace it with whatever system “as to them shall seem most likely to effect their Safety and Happiness,” the Declaration encourages that too!  But for so long as our current system remains in place, it defeats the entire purpose of pre-imposed textual restrictions to allow the President to just reinterpret them away.  That makes it a dead constitution.

And when this happens, those who value restraint cannot just shrug their shoulders and figure the restraints no longer apply. If our current system of checks and balances is broken, we need to set about the task of fixing it.  If the constitution is dead, we need to either revive it or replace it.  Reviving it means voting for politicians willing to prioritize and recapture Congress’s stolen powers, and for executives willing to nominate judges brave enough to do their constitutional duty.  Replacing it means studying what fell short in the past experiment so we can build a sturdier bulwark moving forward.

Nowhere is this more important than on matters of foreign policy.  The JQA homepage rightly argues that “the extent to which [America] tries to manage the international system should be carefully discussed, not assumed.”  A system in which the President can unilaterally take us to war is hardly compatible with such a view.  Nor do presidential campaigns constitute such discussion.  The past three presidential elections have been won by the less hawkish candidate of the two.  Yet, once elected, they have used the AUMF passed one week after 9/11 to justify at least 37 separate military actions in 14 different countries, with increasingly tenuous ties to the “nations, organizations or persons” responsible for 9/11.

Likewise, President Trump bypassed Congress last week precisely because he knew they would not authorize the strike he wanted, because such strikes are insufficiently popular among the American voters in whose name they are carried out.  No nation proud of “self-rule” can permit a single human being, operating under immense personal and political pressure, the blanket authority to wage war anywhere in the world at the drop of a hat.

Somin put it best:

“constitutional limits on presidential war powers are not just legalistic quibbles. They protect us against entering wars without a broad political consensus in favor of them. That reduces the likelihood of entering an unwise conflict at the behest of a single leader and his ideologically homogenous advisers. Broad political support also increases the chances of winning once the war actually begins.”

“The alternative,” Vox warns, “is to just allow President Trump to do what he wants in Syria, using the most aggressive interpretations of already aggressive arguments made by his predecessors.”

That’s unacceptable no matter who’s in charge.

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