Waging war over the Constitution and its framers

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 UC 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 Garry of Massachusetts responded that he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” Everybody supported Garry.

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.”

James Polk also requested a congressional declaration of war against Mexico in 1846, but only after making such a war inevitable by positioning troops on the Mexican border. 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. One could even bring a legal case against the war in Iraq that Justice Thomas, were he true to his rhetoric, might support. After that, Irons overreaches.

He argues that presidents are overly aggressive and exceed their constitutional powers in wartime, citing 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, Irons doesn’t have much that’s interesting or surprising to say, and his historical backup is thin. For example, Madison said: “Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded.” Irons uses this quote to support his argument that Congress should declare wars. But it also supports the notion that Madison wanted presidents to have leeway in “conducting” them.

Irons’ central hypothesis is also unconvincing. He wants readers to believe that presidents have taken many war powers in their rapacious quest for resources and the spoils of war. Presidents need to draw their guns fast, without congressional deliberation, so that they can quickly get the loot to their corporate contributors. “The imperatives of the American empire [have] forced presidents to don the uniform of commander in chief and take unilateral military action to protect those imperial interests,” Irons writes. In discussing the current Bush administration’s Iraq war, Irons asserts that “the primary goal of the strategists was to protect American access to Middle Eastern oil.”

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.

Irons’ overwrought cynicism doesn’t completely undermine “War Powers.” But it distracts the author and makes his sections on the war in Iraq, with anti-Bush potshots taken at every turn, a bore to read. A book that begins with insightful analyses of Madison ends with what reads like a bland recitation of Michael Moore. *