I would like to start by thanking my interlocutors for their thoughtful responses to my lead forum essay, “The Long Descent to Unilateralism.” I have been working on war powers for some time, and one of the first books I read about them was John Yoo’s The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 when it came out in 2006. I have always found his arguments extremely persuasive.
I think it would be unwise for me to claim more mastery of this topic than any of my respondents, so I will simply touch on a few points where we agree and disagree in the hopes of engaging in a friendly conversation. I will start with John Yoo’s perspective that I’ve misinterpreted the Framers. One of the things that I try to avoid, if I can, is to present a single view from the founding generation as if it were definitive of the whole. I think it is fair to say that Alexander Hamilton wanted a stronger executive than James Madison, and this came to light quite quickly as they moved from co-authors in The Federalist Papers to opponents in the Pacificus-Helvidius Debates.
One of the most valuable elements of the creation of the Constitution was the deliberation that took place in the Philadelphia Convention. The very act of discussing important matters of state over the course of time allows for compromise and clarity (and likely a good deal of frustration). The act of deliberation is an important safeguard in democracy. It is even more important in deciding about war and peace. I think most founders thought there should be some discussion about when to initiate hostilities, with a land invasion as an exception. Beyond that, I still think the founders and many who followed thought that it was important, arguably necessary for a president to ask for congressional permission, wait for their deliberation, and accept the result. I will certainly concede that many presidents argued forcefully in favor of their preferred outcome, but they did have to argue. Presidents today have too many tools at their fingertips. They barely even ask forgiveness, let alone permission. Worse still, Congress doesn’t force presidents to do so.
To continue along these lines, I very much appreciate Jordan Cash’s perspective on the political branches. By design, “Congress … is oriented to be slower, with the primary characteristics of reasoned deliberation and representation.” In contrast, by design, it is important for the person holding the executive power to make quick decisions, especially in the name of national defense, or in Jeffery Tulis’s term, “self-preservation.” Using this term throws certain actions into a different light. When thinking about self-preservation, both Washington’s decision and Lincoln’s early decisions in the Civil War make more sense. In both instances, Congress was out of session. Both instances threatened potentially existential consequences for the United States. Washington had a choice in 1793: deny the Treaty of Alliance with France or go to war to protect French assets in the Caribbean from British attack. The American military would never survive another fight with the mighty British navy. Washington could not, in good conscience, help the French at the expense of his nation. Lincoln had a similar, albeit more fraught choice: engage in actions that are legally acts of war (like blockading harbors in the southern states) or sit back while part of the country seceded.
The Constitution is imperfect, but a Congress that stands up to a president provides a superior check.
In Cash’s other examples of war powers, I have a different perspective. In the early nineteenth century, Thomas Jefferson did not send the navy to the Mediterranean to attack the Barbary Pirates. As I’ve written elsewhere, he sent them merely to defend the American merchants traveling through the area. He kept going to Congress to ask them to build more ships and give him permission to attack the pirates. They waited until the pirates engaged in incredibly provocative action before providing Jefferson with permission to use offensive force.
Polk is one of the few, or perhaps the only nineteenth-century president, to gin up a war out of blind ambition. As Cash notes, Polk ordered Zachary Taylor into disputed territory in the hopes of a skirmish breaking out. Importantly, however, he still had to go to Congress to get authorization and the necessary funds. While he kept Congress in the dark about the location of the troops, we still see Congress do its job: deliberate about the merits, decide the scope of the military budget, and authorize a war. That said, this is an example of the separation of powers failing to prevent an entirely unnecessary war. To bring in a point made by Jeffrey Polet, “Rereading the constitutional debates reminds us that no perfect instrument was ever crafted by imperfect hands.” The Constitution is imperfect, but a Congress that stands up to a president provides a superior check. Conversely, relying on presidents to check themselves has mostly failed to produce restraint.
Finally, I’ll turn to Jeffrey Polet’s piece. I completely agree that we’re on the verge of an exciting anniversary that came after many hard-won battles, and I am equally worried that “faith in the American dream and exceptionalism [is] at ebb-tide.” I echo his desire to look back at the words of the Anti-Federalists. Many of their fears have come true. In fact, the very founding of the nation came, in part, due to the increased presence of British regulars in the colonies after the Seven Years’ War. They were conspicuous in the colonies and caused the kind of trouble that young men who think they are above the law tend to cause. Having a military patrolling the streets is, after all, unnerving even to law-abiding citizens. More problematically, as Polet points out, as the military has grown, it is harder and harder to make any criticism. For over a century, there were strong and respected critics of military power. Today, there are very few. Where are the voices of the Anti-Federalists in today’s political landscape? One could hardly think of respectable voices that call for restraint in military spending. Another disquieting recent change for the republican core of the American experiment is the decision to change the Department of Defense to the Department of War. Harry Truman made the symbolic decision after WWII to make it the Department of Defense (ironically, at the beginning of the Cold War, when there would be a dramatic increase in the size, scope, and cost of the military). The president decided to remove that fig leaf.
I very much appreciate that there seems to be a consensus about the change that occurred in the Spanish-American War among my interlocutors. I think it is reasonable to say, as Polet does, that the prior era was the “Old Testament” and in the new era, the US took on “a new messianic sense of purpose.” I struggle, however, to decide if the US always wanted to be a great nation of global ambitions or if something fundamental shifted in the early twentieth century. It is hard to decide whether it achieved the military, political, and economic might because there were always people striving for that end, or if the US grew so powerful precisely because there were voices of restraint consistently arguing against imperial overreach. I think that is an enduring question, and one that I cannot fully answer. For that reason, I appreciate the opportunity to engage with alternative views of the matter.