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04/13/2017

A Comment from David Weisberg on Originalism and Syria (Updated: Plus John Yoo and More)
Michael Ramsey

David Weisberg comments:

Re Originalism and the attack on Syria: I have argued that Originalism is irreparably flawed.  Notwithstanding those flaws, I think everyone agrees that Originalism was designed as a tool to foster an appropriate degree of judicial restraint.  Judicial restraint is the end; originalism is merely the means.  This has important implications for the Syria question, which has already been discussed in several posts (here and here).

Two versions: “The Congress shall have power…” (1) “to declare war”, or (2) “to declare war and to authorize use of military force, but such authorization shall not be necessary when the president, as commander-in-chief, responds to a sudden attack on the United States”.   In both 1788 and 2017, these two versions had and have public meanings that are different from each other.  I would think that, if a person is an original-public-meaning Originalist, the inevitable conclusion is that Pres. Trump has not “violated” the Constitution, because he has not even purported to declare war on Syria.

But, for an Originalist, whether or not Pres. Trump has in some sense “violated” the Constitution should be of secondary importance.  The much more fundamental and important question is: should the courts have any role in determining what military measures the Trump administration may take against Syria, or is that a non-justiciable political question?  This question is more fundamental because it directly implicates the principle of judicial restraint, which was the motivation for formulating Originalism in the first place.

I believe it would be impossible to conceive of a more obviously non-justiciable political question than the propriety of the use of military force.  For the courts to intervene would be to interfere simultaneously with powers explicitly granted to both political branches of government: the president (“commander-in-chief”) and Congress (“declare war”).  Such judicial intervention might put the lives of U.S. soldiers at risk; it could also result in a disastrous deterioration of morale.  (“Why should any of us obey orders to fight?  My lawyer says the courts will declare this conflict unconstitutional.”)

If a substantial number of members of Congress disagree with the president’s use of force, they can cut off funding for such use.  They could also impeach him.  But no one should want unelected jurists, who in most cases have no military experience and no access to expert military advice, to be making decisions about how the U.S. deploys its armed forces.  No matter what history tells us about the “declare war” clause, can anyone seriously argue that the founders contemplated that—of all the three branches of government—it would be the federal courts that would have the final say in deciding whether U.S. forces can be deployed in a particular set of circumstances?

Prof. Bruce Ackerman, in the NY Times, reports that the D.C. Federal District Court ruled that his client, a U.S. military officer, cannot challenge former-Pres. Obama’s military initiatives against Islamic State, because it raises a non-justiciable political question.  Prof. Ackerman believes that result was wrong.  In my opinion, the result was entirely correct.

I disagree with the premise of this comment.  Originalism is not simply a means to the end of judicial restraint.  Rather , I think it is principally about the rule of law, both within and outside the judicial branch.  Applied to war powers (and other presidential powers that are not easily reviewable) it is about a rule of law for the executive.  Whether the political question doctrine is consistent with originalism is a separate question.  But even apart from any possibility of judicial review, originalism seeks an objective foundation on which we can base our constitutional criticisms (or defenses) of executive action.

RELATED:  At Cato At Liberty, Gene Healy: Weak Legal Pretext for Trump’s Drive-By Tomahawking (drawing on originalist writing [including mine; thanks!] to criticize the Syria strike).

FURTHER UPDATE:  John Yoo (Berkeley/AEI) has this partially originalist defense of the Syria strike at NRO: Trump’s Syria Strike Was Constitutional.  It's the same basic argument so I won't respond in detail.  But two quick points.  He says:

Without any congressional approval, presidents have sent forces to battle Indians, Barbary pirates, and Russian revolutionaries; to fight North Korean and Chinese Communists in Korea; to engineer regime changes in South and Central America; and to prevent human-rights disasters in the Balkans. Other conflicts, such as the 1991 Persian Gulf war, the 2001 invasion of Afghanistan, and the 2003 Iraq War, received legislative “authorization” but not declarations of war. The practice of presidential initiative, followed by congressional acquiescence, has spanned both Democratic and Republican administrations and reaches back from President Trump to Presidents Abraham Lincoln, Thomas Jefferson, and George Washington.

(1) I doubt the accuracy/relevance of his claims about the early practice.  I do not know what "Indians" are meant or what action by George Washington he has in mind.  I do not think Washington authorized force without congressional authorization except maybe in immediate self-defense.  If Professor Yoo thinks differently, a cite would be great; I think he's just mistaken on this point.  (I discuss Washington's use of force in this article and conclude he may have actually been too cautious, constitutionally speaking.)  As to Jefferson and Barbary pirates, I assume he's thinking of the Tripoli episode, but as I've said over and over (and over), the only reason anyone (including Hamilton) thought Jefferson could use non-defensive force without congressional approval is that Tripoli declared war first.  (The above-linked article covers this debate also).  I am not aware of any practice from the immediate post-ratification era that supports the no-authorization-needed-for-a-first-strike argument.  And I have looked into this a lot.

(2) Professor Yoo rests much on modern practice.  But as I argue in this article, modern practice is a bit overstated on this point -- the only post-Vietnam episodes that clearly support the President acting alone in analogous circumstances are Kosovo and Libya.  (As shown in the pretty cool chart on the last page, if I do say so myself).

AND FURTHER:  From Michael Paulsen (St. Thomas): Trump’s First Unconstitutional War.  Key paragraphs: 

The phrase “declare war” in the Constitution was universally understood to mean the making of the decision to initiate a state of war with another nation, power, or force. The word “declare” was deliberately and carefully chosen at the Constitutional Convention, after an earlier draft that would have granted Congress the power to “make” war was rejected. Two reasons for the change appear in the records of the Convention’s debates. First, the delegates wished to preserve the traditional executive power to respond to, repel, or defend against sudden (or imminent) attacks on the nation. The right to national defense would remain with the executive branch. Thus, if another nation were to launch an attack against the nation — that is, if someone else were to start a war with the United States — the president would not need to wait for Congress to act before responding with force. Second, the delegates thought that “declare” was a better word choice than “make,” which could be mistaken to suggest that it was Congress’s job to conduct war. The phrase “declare war” in the Constitution was universally understood to mean the making of the decision to initiate a state of war with another nation, power, or force.

In all respects, the debate reveals the consensus understanding that the president would not have the power to initiate a war without congressional approval. Virtually everybody in the founding generation — Washington, Adams, Jefferson, Madison, Hamilton, Jay, and countless others — agreed on this principle. Nothing in the text of the Constitution; nothing in its structure or logic; and nothing in the contemporary historical record supports the unilateral power of the president to take the nation into a new state of war by himself. The most that can be said is that the president, as commander-in-chief, retains the executive power to respond to actual or threatened attacks, to rescue American civilians or troops when they are in imminent danger, and to take actions to preserve, protect, and defend the nation from cataclysmic harm in an emergency. There are borderline, arguable situations in each category, to be sure. But offensive military action against a nation with which we are not already engaged in hostilities, and involving none of these exceptional situations, falls completely outside the scope of the president’s legitimate constitutional authority.

Agreed.

AND A FURTHER UPDATE: DAVID WEISBERG RESPONDS:

Michael Paulsen has written:  “The phrase ‘declare war’ in the Constitution was universally understood to mean the making of the decision to initiate a state of war with another nation, power, or force.”  Prof. Ramsey agrees with Prof. Paulsen. 

The OED says the phrase “To declare war” means “to make formal and public proclamation of hostilities against another power”; this meaning has been valid, according to the OED, at least since 1552.  The OED offers no other meaning for the phrase.  I hope we would all agree that there is a difference between making a decision and making a formal proclamation about a decision.

There were discussions at the Constitutional Convention about what language to use, but ultimately the phrase “to declare war” was settled on to specify the power to be given to Congress.  Here is what I don’t understand: is Prof. Paulsen saying that the phrase was “universally understood” to mean “the making of the decision…etc.” in addition to the meaning assigned by the OED, or is he saying that the phrase was “universally understood” to have a meaning different from the meaning assigned by the OED?

If it is the latter, I will say, with all due respect to Prof. Paulsen, that I think the OED is a more authoritative source of etymologies than he is.  If Prof. Paulsen is saying that what was “universally understood” was in addition to the OED meaning, then wouldn’t any careful lawyer have insisted that the constitutional provision be drafted so: “to declare war, or to initiate a state of war with another nation, power, or force”?  These are extremely important issues—the use of military force—in the life of a nation.  Wouldn’t the founders have wanted to expend a few additional words to make their position perfectly clear?  Or, after discussions of the issue, did they intentionally, deliberately, knowingly leave the area beyond “to declare war” vague and indeterminate?  I think the founders were at least as competent as lawyers as we are, so I vote for the latter.  And that is why I think Trump’s missile strike didn’t violate the Constitution.