The President, the Constitution, and National Security
A response to Lindsey Graham


Andrew C. McCarthy

Position One: The president has the authority to launch war unilaterally — without any authorization from Congress — in the absence of an attack, or even a threat of aggression, against the United States; and he may do so by invading a country with which the United States is not only at peace but in alliance — a counterterrorism alliance subsidized by American taxpayers.

Position Two (and this one is worth quoting): “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

So which is the right stance? It’s a salient question for Republican presidential contenders, who often claim the mantle of “constitutional conservative” — fidelity to our founding law being a worthy litmus test of conservative bona fides. It is also a pressing question: The GOP candidates are preparing for a November 22 debate that will focus on foreign policy.

That is a crucial topic in any presidential contest, but one oddly overlooked in this election season. That is understandable. The ravaged state of the Obama economy is foremost in the minds of voters, and thus makes disproportionate demands on the candidates’ attention. Still, the Constitution these candidates claim to champion contemplates a modest executive role in domestic policy. We have a president, rather than a parliament or a committee, primarily to pursue and defend American interests in the international arena. Surely, in wartime, a would-be commander-in-chief’s conception of presidential war power ought to rank high among our concerns — maybe even as high as whether Herman Cain vanishes when it’s time to pay the wine tab.

The first of the afore-described positions on war powers is the one taken by Sen. Lindsey Graham during the recent Libya misadventure. It is particularly worth noting because the South Carolina Republican has just penned a lengthy disquisition on what he sees as the foundation of a conservative foreign policy. That foundation, which he ardently urges GOP candidates to embrace, does not mention, much less address, the Constitution. There is a single, fleeting reference to the “constitutional” rights of alien enemy-combatant terrorists. Yet nowhere, in over 5,000 words, does the senator see fit to address whether the Constitution the president takes an oath to defend might actually inform how he should carry out his constitutional responsibilities.

Executive foreign-affairs powers are not exactly defined. The Constitution marks no black-and-white boundary beyond which the president must give way to congressional authority. The framers’ handiwork is ingeniously flexible in that regard, a testament to their sage humility — an attribute sadly lacking in today’s central planners. “If a Federal Constitution could chain the ambition, or set bounds to the exertions of all other nations,” Madison observed in Federalist 41, “then indeed might it prudently chain the discretion of its own Government, and set bounds to the exertions of its own safety.” But in the real world, he knew, “security can only be regulated by the means and danger of attack. They will in fact be ever determined by these rules, and by no others.” Because “it is impossible to foresee or define the extent and variety of national exigencies,” Hamilton added (in Federalist 23), “no constitutional shackles can wisely be imposed” on those responsible for the nation’s security.