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Presidential Wars

Constitutional Diplomacy

by Michael J. Glennon
Princeton University Press, 353 pp., $14.95 (paper)

1.

At Princeton University on May 10, President Bush made an important pronouncement which received little attention. He talked about the presidency, Congress, and the Constitution. He particularly touched on the role of the president in foreign policy, especially as it may lead to war.

We have just been through a war for which Congress voted at almost the last moment. Now, however, Bush said that he had an “inherent right” to use the UN resolution to take the country into the war, without congressional authorization. The passage in which he made this claim holds the key to what Congress and the country may expect from him in similar circumstances:

This does not mean that the Executive may conduct foreign business in a vacuum. I have great respect for Congress, and I prefer to work cooperatively with it wherever possible.

Though I felt after studying the question that I had the inherent power to commit our forces to battle after the UN resolution, I solicited congressional support before committing our forces to the Gulf war. So, while a President bears special foreign policy obligations, those obligations do not imply any liberty to keep Congress unnecessarily in the dark.

The italics are mine. They give away what Mr. Bush understands the real relationship with Congress to be. In effect everything depends on what the president chooses to do. He will decide where it is possible to work cooperatively with Congress, and he will decide whether it is necessary to keep Congress in the dark.

This extraordinarily devious passage was clearly composed with the greatest care to give with one hand and take away with the other. Behind it is an unstated but ever-present premise: foreign policy is the sole province of the president, even if it leads to war. Congress has a part to play only if the president, in his superior wisdom, permits it to play a role. He will not work with it if he thinks it is impossible to do so, and he will keep it in the dark if he thinks it necessary.

In another part of his speech Mr. Bush said that presidents “must preserve, protect, and defend the Constitution.” If so, it is necessary to ask: What is there in the Constitution that permits presidents to treat Congress so cavalierly? Should a president do anything he pleases in his relations with Congress, to confront it with accomplished facts and to manipulate public opinion before he shows his hand to Congress?

The issue here is far larger than Congress. A president who keeps Congress in the dark keeps the American people in the dark. If Congress is not trusted by a president, the people do not have a chance.

Since World War II, presidents have led the country into three major wars.1 Two of them, Korea and Vietnam, were disappointing or disastrous. It remains to be seen what the final verdict on the Gulf War will be. Whatever it is, such wars cannot be regarded with equanimity, especially if presidents were largely responsible for them.

One attempted justification for presidential wars is that there have been as many as two hundred of them in our history.2 Relatively minor as these may have been, together with Korea, Vietnam, and now the Gulf, they indicate that presidential wars are not occasional aberrations; they represent most of our wars—and all of them since World War II.

Yet, the Framers would be flabber-gasted to learn that presidents wage wars as if the Constitution had never been written. Recent constitutional studies have gone over the ground again without finding that presidents have anything like the powers they have claimed. The question did not start with George Bush, but it may well have reached a point of no return with him.

2.

Bush himself tried to give the problem some historical perspective. He spoke at some length and with much feeling about a threat to presidential power. The “most common challenge,” he said, “comes from a predictable source”—members of the United States Congress. This was their sin:

Although our founders never envisioned a Congress that would churn out hundreds of thousands of pages worth of reports and hearings and documents and laws every year, they did understand that legislators would try to accumulate power. James Madison, your son—Princeton’s son—warned that, “The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” That was Mr. Madison speaking, not President Bush speaking.

Yale’s son should have known better than to cite Princeton’s son in this connection. Bush seemed to think that Madison was referring to the same kind of Congress that has been churning out hundreds of thousands of pages of reports and documents. In fact, Madison’s words appeared in No. 48 of The Federalist.3 They were written and published in 1788. Madison was not referring to the Congress under the Constitution, which had not yet been ratified; he had in mind, as he clearly stated, the state constitutions of Virginia and Pennsylvania under the old Articles of Confederation. If Bush had mentioned the source, it would have been clear that “the legislative department” Madison had referred to was not the one that was created by the Constitution.

It might be more to the point today to cite what Madison wrote in No. 47 of The Federalist:

The accumulation of all powers legislative, executive, and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.4

The accumulation of all powers legislative, executive, and judiciary is just what is now being claimed for the presidency in foreign policy. In any case, Madison was then concerned about something that no longer holds true—the disparity between the numbers in the legislature and those in the executive and judiciary. When Madison became secretary of state in 1800, the staff was made up of seven clerks—which he soon cut down to four.5 The personnel of the Department of State today—not to speak of the Executive as a whole—is many times that of the legislature and judiciary. Thus Madison’s fears in The Federalist about the numerical advantage of the legislature must be put into its historical context to be understood.

It would also help to know the historical context of those two hundred presidential wars that come up so often in this connection. The prototype is the story of Thomas Jefferson and the Barbary pirates in 1801. The moral seems to be that if a presidential war was good enough for Jefferson, it should be good enough for us in all circumstances.

The story has an altogether different lesson to teach us. Washington and Adams had continued the British practice of paying tribute to the pirates of the Barbary States (Algiers, Morocco, Tunis, and Tripoli). When the pasha of Tripoli increased his price for immunity from blackmail and sent cruisers to attack American shipping, Jefferson ordered some frigates into the Mediterranean to protect it. One Tripolitan cruiser was captured by a small US schooner, Enterprise, but was let go. Jefferson told what happened next in a message to Congress:

Unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense, the vessel, being disabled from committing further hostilities, was liberated with its crew. The Legislature will doubtless consider whether, by authorizing measures of offense also, they will place our force on an equal footing with that of its adversaries.6

This statement by Jefferson that the Constitution did not permit him to go beyond “the line of defense” brought down on him a fierce attack by Alexander Hamilton:

The first thing in it which excites our surprise, is the very extraordinary position, that though Tripoli had declared war in form against the United States, and had enforced it by actual hostility, yet there was not power, for want of the sanction of Congress, to capture and detain her cruisers with their crews.7

Whatever the merits of the case, the incident shows, if anything, that Jefferson was extraordinarily solicitous of the need for Congress to declare war; he was willing to take defensive action on his own but to go no further. The precedent which Jefferson set cannot be used—as it has been used countless times—to justify presidential wars of the Korean or Vietnam type; it is strictly applicable to limited, small-scale, defensive encounters such as the Barbary action.

As for Madison, he was the first to give a war his name. In 1812, he resolved to fight against Britain’s policy of barring all commerce with Europe in its war against Napoleonic France. The war tore the country apart. The opposition to it in New England was so great that call-ups were massively disobeyed; sedition was openly advocated. It was “Mr. Madison’s War” to all those who opposed it. To make peace in 1815, Madison was forced to drop all the demands for which the war had been fought and go back to the status quo ante. Historians have not regarded the war as his finest hour.

Even his admiring biographer Irving Brant did not approve of some of his methods: “President Madison actually undertook, in a democratic republic with divided powers, to execute a policy that was appropriate only to an autocracy or a strong ministerial government like that of Great Britain.”8 His latest biographer, Drew R. McCoy, is far less critical, commenting on his “republican restraint as president and commander in chief.”9 Whatever the verdict, the war itself was soon celebrated as a “second war of independence” by virtue of standing up to Great Britain again, even without a victory, and an “era of good feeling” followed.

That war was followed by “Mr. Polk’s War.” The war against Mexico in 1846 was President James K. Polk’s personal crusade to obtain Texas and California. Even a historian so little censorious as Samuel Eliot Morison recognized that Polk “baited Mexico into a war with the United States in which California was the big pile of blue chips.” 10 Albert Gallatin, the secretary of the treasury under both Jefferson and Madison, the last surviving statesman present at the creation, demanded, “What shall we say of a war iniquitous in its origin, and provoked by ourselves, of a war of aggression, which is now publicly avowed to be one of intended conquest?”11 A young congressman made his maiden speech in opposition to the war with Mexico. He voted in favor of a resolution declaring that the war was “unnecessarily and unconstitutionally commenced by the President.” The young congressman was Abraham Lincoln.12

Lincoln’s actions in the first months of the Civil War have been used to justify presidential wars. But Lincoln was faced with an internal rebellion, not an external threat. He acted to resist an attack, not to send armed forces half way around the world. Lincoln was responding to an unprecedented type of civil war, and his proclamation calling out the militia to suppress the revolt cannot be used to justify presidential wars of very different character without indiscriminately disregarding the difference between a sudden civil war and deliberate intervention in a Korean-type war.13

  1. 1

    I count the Gulf War on the ground that using about a half million troops cannot be considered a small operation.

  2. 2

    As Professor Michael J. Glennon points out, nearly all two hundred cases involved “fights with pirates, clashes with cattle rustlers, trivial engagements and other minor uses of force not directed at significant adversaries, or risking substantial casualties or large scale hostilities over a prolonged duration.” Foreign Affairs (Spring 1991), p. 90.

  3. 3

    The Federalist, edited by Jacob E. Cooke (Wesleyan University Press, 1961), p. 333.

  4. 4

    The Federalist, p. 324.

  5. 5

    Irving Brant, James Madison: Secretary of State, 1800–1809 (Bobbs-Merrill, 1953), pp. 48–49.

  6. 6

    First Annual Message, December 8, 1801, A Compilation of the Messages and Papers of the Presidents, James D. Richardson, editor (Washington, 1898), Vol. I, pp. 326–327.

  7. 7

    The Papers of Alexander Hamilton, Harold C. Syrett, editor (Columbia University Press, 1977), p. 454. Italics in original.

  8. 8

    Irving Brant, James Madison: Commander in Chief, 1812–1836 (Bobbs-Merrill, 1961), p. 20.

  9. 9

    Drew R. McCoy. The Last of the Fathers (Cambridge University Press, 1989), p. 16.

  10. 10

    Samuel Eliot Morison, The Oxford History of the American People (Oxford University Press, 1965), p. 558.

  11. 11

    Albert Gallatin, Peace With Mexico (1847), reprinted in The Writings of Albert Gallatin, Henry Adams, editor (Lippincott, 1879), Vol. III, p. 583.

  12. 12

    Speech of January 12, 1848, House of Representatives, The Collected Works of Abraham Lincoln, Roy P. Basler, editor (Rutgers University Press, 1953), Vol. I, p. 432.

  13. 13

    See the discussion of Lincoln’s action in William M. Goldsmith, The Growth of Presidential Power (Chelsea House, 1983), Vol. II, pp. 327–333.

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