Long Wars and the Constitution

Stephen M. Griffin

• Publisher: Harvard University Press
• Year: 2013
• ISBN:
  9780674074477
• Topic: Política y relaciones internacionales
• Subtopic: Gobierno estadounidense

In a wide-ranging constitutional history of presidential war decisions from 1945 to the present, Stephen M. Griffin rethinks the long-running debate over the "imperial presidency" and concludes that the eighteenth-century Constitution is inadequate to the challenges of a post-9/11 world.The Constitution requires the consent of Congress before the United States can go to war. Truman's decision to fight in Korea without gaining that consent was unconstitutional, says Griffin, but the acquiescence of Congress and the American people created a precedent for presidents to claim autonomy in this arena ever since. The unthinking extension of presidential leadership in foreign affairs to a point where presidents unilaterally decide when to go to war, Griffin argues, has destabilized our constitutional order and deranged our foreign policy. Long Wars and the Constitution demonstrates the unexpected connections between presidential war power and the constitutional crises that have plagued American politics.Contemporary presidents are caught in a dilemma. On the one hand are the responsibilities handed over to them by a dangerous world, and on the other is an incapacity for sound decisionmaking in the absence of interbranch deliberation. President Obama's continuation of many Bush administration policies in the long war against terrorism is only the latest in a chain of difficulties resulting from the imbalances introduced by the post-1945 constitutional order. Griffin argues for beginning a cycle of accountability in which Congress would play a meaningful role in decisions for war, while recognizing the realities of twenty-first century diplomacy.

1

War Powers and Constitutional Change

Imagine a world in which there is a robust judicial doctrine of presidential war powers. Legal casebooks would have as many Supreme Court decisions on such Cold War conflicts as Korea, Vietnam, and Central Intelligence Agency (CIA) interventions into Latin America and the Middle East as they do on the commerce clause and the Fourteenth Amendment. All students would be familiar with the series of cases in which the constitutionality of the Vietnam War was finally underwritten by the Supreme Court. They would study the gradual way in which the Court restrained presidential power in the aftermath of Vietnam and how the first and second Bush administrations responded with thoughtful, deliberative efforts to win congressional support for the 1991 Gulf War and the 2003 Iraq War, respectively. They would understand the relationship between the restrictions the Court put on the CIA and that agency’s refusal to implement the harsh interrogation regime proposed by Bush II administration hard liners after 9/11.

In such a world, presidential war powers are legalized (or judicialized). They are part of the legalized Constitution, those aspects of the Constitution that are typically enforced by the judiciary. In this world, the relevance of the Constitution to war powers would be unquestioned. Indeed, the Supreme Court would be intimately involved in every aspect of foreign policy.

For better or worse, this is not our world. In the real world, there are few judicial decisions relevant to presidential war powers.¹ The use of force in war, circumstances short of war, or covert operations is not adjudicated by the courts. Scholars say that the constitutional provisions concerning war powers are given meaning in “the Constitution outside the courts.”² Yet this is more of a handy label than a widely accepted theory of how the executive and legislative branches determine constitutional meaning. This creates what we might call a problem of constitutional relevance—whether and how the Constitution is relevant to foreign affairs.

Any constitutional historian can reel off a number of Supreme Court decisions that were related to the Cold War, such as the Steel Seizure case, the prosecution of members of the Communist Party, and, arguably, Brown v. Board of Education, perhaps the most famous and influential decision of the twentieth century.³ But how central was the Constitution to the conduct of foreign affairs in the Cold War? From histories of this era, one can surmise the conventional answer that the Constitution was not central at all. One can plow through thousands of pages in comprehensive histories of U.S. diplomacy and the Cold War without encountering a single reference to the Constitution. We have few informed discussions of the relationship of the Constitution to key post-1945 events such as the founding of the United Nations, the Truman Doctrine, the National Security Act, crucial documents of national security policy such as NSC-68, and the Korean War.⁴

Historians and lawyers tend to make the same assumption—the Constitution is not relevant unless the Supreme Court makes it so. Yet there is another sense in which everyone agrees that the Constitution was implicated in U.S. foreign policy in the post-1945 period. It is widely acknowledged that there was a significant increase in presidential power as a consequence of World War II and the new role the U.S. assumed in world affairs.⁵ To briefly mention a few events specifically related to war powers: the North Atlantic Treaty led to the permanent stationing of significant numbers of U.S. troops in Europe. After an initial period of demobilization and defense cutbacks after 1945, the Cold War took hold by 1947 and a commitment was made to a substantial military buildup in the wake of the invasion of South Korea by North Korea in June 1950. The executive branch formulated the doctrine of containment to guide Cold War policy, and the capacity of the U.S. to intervene worldwide through means both overt and covert increased.⁶ These developments suggest the Constitution was relevant to the conduct of U.S. foreign policy. What we lack is an account of how it was relevant.

Focusing on war powers invites us to consider the relationship between the Constitution and some of the most important controversies that dogged presidents in the post-1945 period. Harry Truman’s presidency was widely regarded for years as a failure because he could not bring the limited war in Korea to a successful conclusion, a war that was seen as his initiative because he never asked for formal approval from Congress.⁷ The massive policy disaster of the Vietnam War adversely affected the historical reputations of presidents from Eisenhower to Nixon. The constitutional crisis of Watergate was set in motion partly because of Nixon’s conflicts with Congress over foreign affairs and Vietnam.⁸ The history of executive policy in the Cold War had to be largely rewritten after the intelligence revelations in the mid-1970s. The intelligence agencies also figured prominently in the Iran-contra affair during the Reagan administration and the torture controversy after 9/11. Presidential war powers were thus interwoven not only with the conduct of U.S. foreign policy but also with a series of troubling episodes in the post-1945 constitutional order.

Although there was an early skirmish over the constitutionality of Truman’s decision to intervene in Korea without congressional approval, the conflict over presidential war powers became a full-fledged public and academic debate during the Vietnam War.⁹ Much of the initial discussion was narrow and somewhat unhelpful in that it focused on the legal justification for Vietnam and later on the constitutionality of the 1973 War Powers Resolution (WPR).¹⁰ Although the larger question of an imbalance between the executive and legislative branches was raised, the participants in these debates did not pay close attention to the historical circumstances of the Cold War that had led the U.S. to this point. In fact, the focus on Vietnam and the WPR has skewed a proper understanding of war powers both as a matter of legal interpretation and the larger context in which presidential war powers were used before and after that tragic conflict. To make progress in understanding presidential war powers, we must thus begin not with Vietnam or even Korea, but with the new circumstances the U.S. faced at the end of World War II.

Here we face the problem referred to earlier. While there is agreement in a sense that the Constitution was involved with the conduct of foreign affairs in the post-1945 period, scholars lack a conceptual framework in which to assess the constitutional significance of key events. This is why standard histories of the Cold War keep the Constitution offstage. This is not to criticize historians. Legal scholars and political scientists as well lack a generally accepted theory of how to understand the Constitution outside the legalized sphere of formal amendments and judicial doctrine. We thus need to begin our inquiry into war powers with a better understanding of how constitutional change occurs outside the judiciary.

The Importance of Constitutional Orders

Constitutional change outside the legalized Constitution, that is to say other than through formal amendment or judicial doctrine, has played a substantial role in the evolution of American constitutionalism. The Constitution was not enforced solely by the Supreme Court. It was implemented through multiple independent and distinctive institutions, all of which mediated constitutional meaning. At the same time it provided a textual template for these institutions, the Constitution created an agenda for future change by leaving important questions of constitutional power and structure unanswered. Further, an internal logic of constitutional stability discouraged change through formal amendment that might have answered these questions. Officials found themselves in a system of governance in which they could use the existing text and institutions to implement their preferred visions of constitutional power outside Article V. As the national government developed over time, this led to persistent use of informal means, including creative interpretation, institutional restructuring, and democratic elections to initiate change.

Constitutional orders are crucial to the implementation of the Constitution, functioning as relatively stable patterns of institutional interaction with respect to basic aspects of the Constitution such as powers and rights. They are constructed from the actions and norms of multiple institutions.¹¹ The working elements of a constitutional order are several and independent. The first is the text of the Constitution, “the supreme law of the land” and an ineluctable source of authoritative rules, standards, and principles nonetheless sometimes not given sufficient weight in accounts that stress the importance of the “living Constitution.”¹² A second element is the political and policy objectives of government officials, elites, and the public. A third is the structure and capacity for action of state institutions.

There are reciprocal relationships between the elements of a constitutional order. This allows for the possibility that the text can play a paradoxical role in enabling constitutional orders to change. While scholars attached to the idea of the “living constitution” are correct that change does not happen solely through amendment, this does not make the text irrelevant. We might say that the text is imprinted on the structure of government institutions. It can provide authority essential to those seeking to change the constitutional order outside the formal amendment process. Political actors can use powers given by the text to leverage constitutional change. We should therefore avoid an approach that subsumes the written Constitution to the unwritten or “living” Constitution. Powers granted by the text are central to understanding how informal constitutional change can happen. In fact, there is an unavoidable tension between the “written” and the “unwritten” Constitution.

While I am not claiming that the Constitution outside the courts is a kind of political free-for-all, the startling implication of this theory is that the policy objectives of state officials and the public along with new capacities for government action can create a constitutional order that is in considerable tension with the meaning of the text. As the discussion in subsequent chapters will show, government officials were aware of the fragile constitutional foundations of Cold War foreign policy. Yet they so strongly believed that it was necessary that they willingly drove forward and implemented a new constitutional order that was at odds with the order that had prevailed since the early republic.

How could this happen? We should first remember that foreign affairs and war powers are in general outside the legalized Constitution. In the sphere of the legalized Constitution, the judiciary, guided by forms of legal argument influenced by the common law, is supreme.¹³ Judicial doctrine as to the meaning of the Constitution is constitutional law. Indeed, the idea of a form of “law” within this sphere that does not proceed from the Constitution itself, some other enactment recognized by the judiciary, or judicial doctrine literally does not make sense. But the legalized sphere is effective in enforcing the Constitution partly because it is limited in scope. Regardless of what one may think of individual controversial decisions, over the long run the federal judiciary has exhibited a certain institutional restraint. The Supreme Court has never attempted to take on all possible issues of constitutional meaning or attempted to enforce all norms in the Constitution on the other branches of government.

In the nonlegalized sphere, things are different. New policy priorities and state capacities can create new constitutional powers. I see this approach as the only way to explain what has happened to presidential war powers in the post-1945 period. As the discussion in this chapter and the next will show, presidents acquired a new power to initiate full-scale military conflict—in other words, war. Constitutional change outside the legalized Constitution can thus be influenced by the tide of events, political imperatives, and the structure and capacity for action of state institutions. While we can study change in the legalized sphere through amendments and judicial interpretations, there are no true analogues to these markers of change in the nonlegalized sphere. Without legal markers, the way to track change is by studying the succession of constitutional orders or, put another way, the relationship of constitutional powers and rights to the historical development of policy and state institutions. These institutions may imitate the judiciary and use the forms of legal argument to justify constitutional change, but they are not obliged to do so. The legislative and executive branches swim in a sea of policy and politics. To be sure, they make law, but not entrenched constitutional law. By conventional understanding, this power is reserved to the judiciary and the amendment process specified in Article V.

This difference has the further consequence that the norms of the nonlegalized sphere do not, as a practical matter, have the same status as those in the legalized Constitution. Given that they are not (or not typically) enforced by the judiciary, they lack the certainty, stability, and authority of legal norms, creating ambiguity and tension within American constitutionalism.¹⁴ Indeed, I will be stressing that experience with constitutional change arising out of war and foreign affairs has shown that the process of nonlegalized constitutional change is inherently problematic...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• List of Acronyms
• Introduction
• 1. War Powers and Constitutional Change
• 2. Truman and the Post-1945 Constitutional Order
• 3. War and the National Security State
• 4. Vietnam and Watergate: The Post-1945 Constitutional Order in Crisis
• 5. The Constitutional Order in the Post-Vietnam Era
• 6. The 9/11 Wars and the Presidency
• 7. A New Constitutional Order?
• Appendix: Executive Branch War Powers Opinions since 1950
• Notes
• Acknowledgments
• Index