In my post on Congress’ power to declare a limited war, I noted that the leading scholarship in support of Congress’ power is by Saikrishna Prakash (here). I should also have added as well the outstanding two-part article “The Commander in Chief at the Lowest Ebb” by David Barron and Martin Lederman in the Harvard Law…Details
“I consider the foundation of the Constitution as laid on this ground: That “all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.”
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Does Congress have constitutional power to authorize limited strikes on Syria? In his otherwise outstanding post on Congress’ war powers, Michael Stokes Paulsen suggests that the answer might be no:
… [I]t is fruitless, and equally unconstitutional, for Congress to authorize the use of force but attempt to micro-manage how it is to be used (as some versions of the proposed resolution now being debated would do). As noted, the conduct of war, once authorized, lies in the hands of the president. Congress has the power to declare war, and the president does not. But the president has the power to conduct war as Commander in Chief—and Congress does not.
I’m not sure which versions of the resolution are meant here, but the principal proposal — (a) limiting the use of force to degrading Syria’s chemical weapons capacity, and (b) limiting the use of force to air power — seems well within Congress’ power to declare a limited war.
The leading article on this subject is by Saikrishna Prakash in the Texas Law Review: The Separation and Overlap of Military Powers. From the abstract:
Absent from war-powers scholarship is an account of when war and military powers separate and when they overlap. Making arguments sounding in text, structure, and history, this Article supplies such a theory. Numerous English statutes and practices help identify the meaning of the Constitution’s war and military powers. Additional insights come from the Revolutionary War and the half-dozen or so wars fought in the three decades after 1789. In those early years, Congress micromanaged military and wartime operations. Presidents (and their advisors) acquiesced to these congressional assertions of power, expressing rather narrow understandings of presidential power over war and military matters. Using early history as a guide, this Article argues that the Constitution grants Congress complete control over all war and military matters. Some authorities, such as the powers to declare war and establish a system of military justice, rest exclusively with Congress. Military authorities not granted exclusively to Congress vest concurrently with the President and Congress, meaning that either can exercise such powers. In this area of overlap, where congressional statutes conflict with executive orders, the former always trump the latter. Tempering Congress’s ability to micromanage military operations are significant institutional and constitutional constraints that typically make it impossible for Congress to move military assets on a far-off battlefield. In sum, the Constitution creates a powerful Commander in Chief who may direct military operations in a host of ways but who nonetheless lacks any exclusive military powers and is thus subject to congressional direction in all war and military matters.
While I would not go quite as far as Professor Prakash (see here), I agree that Congress has substantial ability to set the goals and limits of the use of force in connection with an authorization of war.Details
In this spirited polemic, Prof. Sotirios Barber defends the American nationalist constitutional
tradition, particularly the thought of John Marshall, from the attacks of both states’ rights advocates (who he calls “dual federalists) and process federalists, those who believe national power should be used in expansive ways to protect individual rights without working to establish one specific American society.
Barber uses Marshall’s 1819 decision in McCulloch v. Maryland as the starting point for nationalist analysis. Hence, he mentions only briefly the important clashes between nationalists and their opponents during the first three decades of the Early Republic. In explaining the rationale behind what he calls “Marshallian federalism” Barber is at his best. Marshall advocated an “ends-oriented constitutionalism.” (16) He believed that the US government was limited in the sense that the government was confined to seek the ends set forth in the Constitution. Marshall’s “positive understanding” (32) of government power sought to help secure the people’s happiness and to instruct them as to their “true interests.” (19) Marshall defended “implied national powers, liberal construction of national power, and national legislative supremacy.” (52) In the midst of this celebration of expansive power, Barber admits, “Under the right circumstances, any and every area of social life could become subjects of concern to policy makers working for ends like national security and prosperity.” (44) Barber then scales back this claim by insisting that Marshallian federalism includes a “rule against pretexts,” meaning that Congress could not pass laws “whose actual motivating purpose is different from its stated purpose.” (68-69) This would guarantee limited “in the sense of properly motivated” government. Barber clearly identifies the presuppositions of “Marshallian federalism”: “a national community that predates the Constitution,” the responsibility of “the national government… for facilitation or securing” the “community’s controlling values,” and the denial that “individual states can lawfully avoid the burdens of pursuing these values.” (50) Nationalism presupposes a certain kind of American society – a Lockean liberal society (65) – and uses the power of the federal government to enforce it. Barber holds that the ends of Marshall’s nationalism “include national security, national prosperity, equal opportunity, and a secular and rationalist political culture.” (51) He mentions later that current Marshallian federalists should be motivated “by the values of today’s progressive liberals.” (68)
(It gets substantially more critical as it goes along…)Details
by Jacob Hornberger, Future of Freedom Foundation
President Obama is considering what military action the U.S. government should take against Syria in retaliation for its purported use of chemical weapons against the Syrian people. At the risk of asking an indelicate question, where in the Constitution does it authorize the president to undertake such action?
When our American ancestors were calling the federal government into existence, they had two basic ways to go: (1) give the president unlimited authority to do whatever he deems is right or (2) limit the authority of the president to undertake only certain actions.
The first option would obviously have vested dictatorial powers within the president. That’s what a dictatorship is all about — the ability of a ruler to undertake whatever actions he wants and whatever he deems is in the best interests of the country.
That’s not the type of government our American ancestors desired to bring into existence. Instead, they chose the second option — the one in which the ruler’s powers are limited in nature.
That’s what the Constitution was all about. At the same time it brought the federal government into existence, it also limited the powers of the president (and other federal officials) to those expressly enumerated in the Constitution. The idea was that if a power wasn’t enumerated, the president was not authorized to exercise it.Details
The founding generation had many reasons for wanting to form a ‘more perfect union.’
Having fought a long bloody war for freedom, many recognized the advantages the union offered in terms of mutual defense. At the signing of the Declaration of Independence, Benjamin Franklin famously quipped, “We must all hang together, or assuredly we shall all hang separately.”
Along those same lines, many founders believed the states would fare better in international relations interacting with other world powers as a united entity. Even operating as a union, the Americans were at a significant power disadvantage when dealing with England, France, Spain and other European powers. Separately, they would have virtually no power.
Then there were the economic advantages of a union. In much the same way unity increased diplomatic power, it also increased the America’s economic power.
Alexander Hamilton even argued that a single general government would conserve American resources.Details
As the Philadelphia Convention concluded, 55 delegates returned to their home states and began the promotion/demotion phase of the ratification process. This process commenced with the convention delegates addressing the citizens of each state and each state’s ratification delegation. Each Framer communicated his comprehension of the legal elements of the charter negotiated for during this historic endeavor.
The delegates generally represented two distinct factions known as the Federalists, supporters of ratification, and the Anti-Federalists, those opposed to the proposed constitution. Delegates regularly traded intellectual barbs through written prose promulgated in the local periodicals of the states.
An occurence which became commonplace during this process was Maryland’s Attorney General, Luther Martin responding to letters written by the Landholder, a nom de plum (pen name), utilized by fellow Philadelphia Convention delegate Oliver Ellsworth of Connecticut, in which Mr. Ellsworth attempted to minimize Martin’s contributions and negatively impact his service.
Martin’s letter was published in the Baltimore Maryland Gazette on March 19, 1788.Details
The Constitution’s Suspension Clause (Art. I, Section 9, cl. 2) limits when the writ of habeas corpus can be suspended. But the Constitution doesn’t seem to grant the federal government power to suspend the writ in the first place. Why not? And why limit a power never given?
In an Aug. 17 Wall Street Journal piece, constitutional law professor Nicholas Quinn Rosenkrantz infers that Congress has the sole suspension authority from the structure of the constitutional text. He writes:
“Since the Suspension Clause appears in Article I of the Constitution, which is predominately about the powers of Congress, there is a strong argument that only Congress can suspend the habeas writ.”
He concludes that when President Abraham Lincoln suspended the writ, he probably intruded on Congress’s prerogative, and thereby exceeded his constitutional authority. (Professor Rosenkrantz also gives Lincoln credit for trying to cure the constitutional defect.)Details