Virtues of the War Clause

In his critique of my 2000 article "The Clinton Theory of the War Power" and themes prominent in some of my work on the Constitution and U.S. foreign policy, David Mervin (2000 [this issue]) concedes that my reading of the framers' intentions is "broadly correct," that my analysis of presidential defiance of the Wax Clause is, in some respects, "incontrovertible," and that my position reflects "academic orthodoxy," a welcome acknowledgment to be sure, but a characterization nevertheless that is assailed by revisionists like Mervin, who would supplant the constitutional design with a unilateral executive war-making power, yoked only by the president's perception of U.S. national security interests. The framers, Mervin agrees, granted to Congress the sole and exclusive authority to initiate military hostilities on behalf of the American people; the president was empowered to "repel sudden attacks" against the United States. For Mervin, however, congressional preeminence in wax making, as commanded by the Constitution, is no longer relevant to international politics. In a word, the constitutional arrangement for war and peace is obsolete. The values, preferences, and concerns of the framers that shaped the wax clause--most notably a deep-seated fear of unilateral executive power and a commitment to collective decision making in foreign affairs--are no longer sustainable in a world grown small by powerful advances in technology and information. In the modern world, when the president perceives a threat to the United States' security interests, he should enjoy congressional deference so that he may "meet his responsibilities as foreign policy leader and as guardian of the nation's security" (p. 771). Of course, no such grant is to be found in the text of the Constitution. In fact, the Constitution assigns to Congress senior status in a partnership with the president for the purpose of conducting foreign policy (Adler and George 1996, 19-56). Mervin's quarrel, it may be said, is with the framers, who sharply rejected unilateral presidential power in foreign affairs, and the American people, who have evinced no perceptible interest in amending the Constitution for the purpose of transferring the war power to the president There is, in Mervin's critique, no call to arms for an amendatory effort; indeed, there is no mention of the availability of Article V as a remedy for the obsolescence of the War Clause. Nor does Mervin proffer a constitutional theory that would legitimate presidential usurpation of the war power, but seeks justification for it in three policy arguments: (1) the doctrine of changing circumstances, (2) superior executive information, and (3) congressional incoherence. But policy preferences cannot overcome constitutional principles. As Chief Justice John Marshall wrote in his defense of McCulloch v. Maryland (1819), "The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional" (cited in Gunther 1969,190-91). Changing Circumstances The War Clause, according to Mervin, is "part of an anachronistic value system," for it has been "overtaken by profound forces of change," including powerful advances in technology and information, that have rendered congressional preeminence in war making obsolete (p. 768). It is not enough for Mervin to recount the obvious sociological, technological, and informational changes that have occurred in the United States over the past two centuries, for the question remains, who authorized the president to revise the Constitution under the explanation of changed circumstances? There certainly is a puzzling non sequitur in the proposition that global contraction implies executive expansion and more than a little irony in the contention that the president, denied by the Constitution from initiating military hostilities, might by some transformative means engage in an act of self-conferral of the war-making authority. …