Bench Memos

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The Urge to Constitutionalize Everything


Another Sunday, another wrongheaded George Will column on the Constitution (or that’s the pattern lately, anyway).  Assuming his best schoolmasterish scowl, hickory switch in hand, Will declares: ‘”Republicans, supposed defenders of limited government, actually are enablers of an unlimited presidency.”  This is hyperbolic and ahistorical.  Ahistorical because the political ancestors of the view taken by Will’s deprecated “presidentialists” are such dangerous characters as Abraham Lincoln and Alexander Hamilton.  Hyperbolic because the view taken of presidential war powers by defenders of the Bush administration hardly amounts to “an unlimited presidency.”  Advocacy of a vigorous presidency with respect to national security, especially when the nation is at war or under attack, is perfectly consistent with the conservative defense of limited government.

Will is much taken with what he calls the “nonpartisan” “Constitution Project,” an outfit that seems to get most of its funding from George Soros’s Open Society Institute.  The 2005 report of the Project’s “War Powers Initiative,” praised by Will, was the work of a committee with a sprinkling of nonacademic former government officials of both parties, but whose membership was dominated by legal academics who were all, to a person, liberals (with the possible exception of Louis Fisher, a political scientist at the Library of Congress who is “nonpartisan” only in the sense of being an equal-opportunity partisan of Congress over the presidency, whoever is in the White House).  If you read the report, pay particular attention to the separate dissenting views offered at the end by Edwin D. Williamson, former legal adviser to the State Department–and the only member of the committee who seems to have understood the constitutional issues correctly.

Will also likes the “Constitutional War Powers Resolution” introduced in the House recently (as H.J.Res. 53) by Republican Walter Jones of North Carolina.  This misguided piece of legislation is worse than the War Powers Act passed over Richard Nixon’s veto in 1973, and held to be invalid by every president since then.  Its worst feature is its statutory conjuring (in its section 8) of “standing to sue” for any member of Congress who feels aggrieved by the president’s use of military force–a standing the Constitution does not confer for good reason, because no injury to an individual right is suffered by a congressman in such circumstances.  Does Will join Jones in issuing such an invitation to judicial adventurism in a region where sensible judges have always feared to tread?

Finally, Will has this brief description of a major war powers episode in the 20th century:

Congress’s powers were most dramatically abandoned and ignored regarding Korea. Although President Harry S. Truman came from a Congress controlled by his party and friends, he never sought congressional authorization to send troops into massive and sustained conflict. Instead, he asserted broad authority to “execute” treaties such as the U.N. Charter.

Well, not exactly.  As Charles Lofgren of Claremont McKenna College remarked nearly 40 years ago in a classic article titled “Mr. Truman’s War”:

Because the Truman Administration did not seriously maintain that the various resolutions of the [U.N.] Security Council provided a substitute for a congressional declaration of war, the issue in the debate over the legality of the Korean intervention was whether the President had properly exercised his powers as Commander-in-Chief.

Lofgren concluded with some wisdom that is conspicuously lacking in the “Constitution Project,” Representative Jones, and George Will:

Both sides in the Korean debate conceded that the President could act, without Congress, to counter an immediate, dangerous threat to American interests and security.  Thus the real issue became (and remains): What constitutes such a threat?  To answer that question takes one beyond the province of constitutional law.


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