Tuesday, March 29, 2011

Constitutional Betrayals

Over at Stratfor, George Friedman has written an outstanding essay which asks the sensible question: "What Happened to the American Declaration of War?" He makes the point that there has not been a declaration of war passed by Congress since 1941, at the start of World War II -- even though America has since been involved in no less than six wars: Korea, Vietnam, Kuwait-Iraq, Afghanistan, Iraq again, and now Libya.

In words that echo as eerily familiar to those which President Obama is using today, Harry Truman justified his sending of troops into Korea without a declaration of war on these grounds:
When North Korea invaded South Korea, Truman took recourse to the new U.N. Security Council. He wanted international sanction for the war and was able to get it because the Soviet representatives happened to be boycotting the Security Council over other issues at the time.

Truman’s view was that U.N. sanction for the war superseded the requirement for a declaration of war in two ways. First, it was not a war in the strict sense, he argued, but a “police action” under the U.N. Charter. Second, the U.N. Charter constituted a treaty, therefore implicitly binding the United States to go to war if the United Nations so ordered. Whether Congress’ authorization to join the United Nations both obligated the United States to wage war at U.N. behest, obviating the need for declarations of war because Congress had already authorized police actions, is an interesting question. Whatever the answer, Truman set a precedent that wars could be waged without congressional declarations of war and that other actions — from treaties to resolutions to budgetary authorizations — mooted declarations of war.
Lyndon Johnson, meanwhile, feared he could not get a declaration of war, and so he simply went to war without one, using an isolated (and then trumped-up) incident as a pretext:
By the time Vietnam came up, the transition from military assistance to advisers to advisers in combat to U.S. forces at war was so subtle that there was no moment to which you could point that said that we were now in a state of war where previously we weren’t. Rather than ask for a declaration of war, Johnson used an incident in the Tonkin Gulf to get a congressional resolution that he interpreted as being the equivalent of war. The problem here was that it was not clear that had he asked for a formal declaration of war he would have gotten one. Johnson didn’t take that chance.

What Johnson did was use Cold War precedents, from the Korean War, to nuclear warfare, to covert operations to the subtle distinctions of contemporary warfare in order to wage a substantial and extended war based on the Tonkin Gulf resolution — which Congress clearly didn’t see as a declaration of war — instead of asking for a formal declaration. And this represented the breakpoint. In Vietnam, the issue was not some legal or practical justification for not asking for a declaration. Rather, it was a political consideration.
For Friedman, the Vietnam War marked the abandonment by the United States of its constitutional principle that while the President is commander-in-chief of its armed forces, the sovereign people, through an act of their elected representatives, must first authorize him to take the country into war (emphasis added):
Johnson did not know that he could get a declaration; the public might not be prepared to go to war. For this reason, rather than ask for a declaration, he used all the prior precedents to simply go to war without a declaration. In my view, that was the moment the declaration of war as a constitutional imperative collapsed. And in my view, so did the Johnson presidency. In hindsight, he needed a declaration badly, and if he could not get it, Vietnam would have been lost, and so may have been his presidency. Since Vietnam was lost anyway from lack of public consensus, his decision was a mistake. But it set the stage for everything that came after — war by resolution rather than by formal constitutional process.
Formal resolutions of war serve a very important function in our democracy -- they represent a unification of all Americans, through their elected representatives, behind the goals of the war in question. But as Friedman observes, such declarations serve other important objectives, as well:
A declaration of war, I am arguing, is an essential aspect of war fighting particularly for the republic when engaged in frequent wars. It achieves a number of things. First, it holds both Congress and the president equally responsible for the decision, and does so unambiguously. Second, it affirms to the people that their lives have now changed and that they will be bearing burdens. Third, it gives the president the political and moral authority he needs to wage war on their behalf and forces everyone to share in the moral responsibility of war. And finally, by submitting it to a political process, many wars might be avoided. When we look at some of our wars after World War II it is not clear they had to be fought in the national interest, nor is it clear that the presidents would not have been better remembered if they had been restrained. A declaration of war both frees and restrains the president, as it was meant to do.
Without the preventative of a constitutional requirement to declare war, the President is free to do as he is doing now: placing our armed forces in harm's way to serve the objectives of other groups and interests -- be they NATO, the UN, or just some of our allies. And, says Friedman, to do so represents a confusion, or confounding, of the national interest with the role of America as an empire -- as part of a more global hegemony (emphasis added):
. . . What is most important is that the republic not be overwhelmed in the course of pursuing imperial goals. The declaration of war is precisely the point at which imperial interests can overwhelm republican prerogatives.

There are enormous complexities here. Nuclear war has not been abolished. The United States has treaty obligations to the United Nations and other countries. Covert operations are essential, as is military assistance, both of which can lead to war. I am not making the argument that constant accommodation to reality does not have to be made. I am making the argument that the suspension of Section 8 of Article I as if it is possible to amend the Constitution with a wink and nod represents a mortal threat to the republic. If this can be done, what can’t be done?

That is the real point of concern: "amending the Constitution with a wink and a nod." If the Constitution can be ignored by consensus, or by indifference, then we are no longer a nation under law, but under men (generically speaking, of course).

ECUSA is also an organization of men (generically, again), under a Constitution. Lately, however, its Presiding Bishop, and both General Convention and the House of Bishops under her leadership, have ignored the Constitution in the interest of advancing specific social and legal objectives. For example, General Convention 2009 saw fit to recognize and seat the deputations from four former dioceses, without the necessity of their following the Constitution and organizing themselves properly into new dioceses as required by Article V. This served the purpose of being able to claim in court that they were already dioceses, because they had never left the Church. (Even though the Constitution does not say so, the current leadership argues in court that a diocese can never leave the Church, because it needs all the diocesan property and assets -- as well as the threat of lawsuits against other dioceses -- in order to survive.)

Or again, General Convention, the House of Bishops and its presiding officer have enacted a new disciplinary section (Title IV) of the Canons, which without any constitutional authority whatsoever transforms the Presiding Bishop into a full metropolitan, with episcopal authority over every other bishop. This transformation defies 222 years of historical tradition and precedent, but it was done "with a wink and a nod", after just fifteen minutes of debate.

The weakness of Constitutions is that if no one insists that they be followed, they have no mechanism of self-enforcement. Disobeying a Constitution sets a very bad precedent, but as with Korea or the Gulf of Tonkin, a bad precedent still becomes a precedent. It is expedient for President Obama to subjugate our national interests to those of France, Britain and NATO (to say nothing of the UN). And it is expedient for Bishop Jefferts Schori to subjugate the independence of dioceses to her metropolitical will.

The cost to be paid for giving in to expediency, however, is never reckoned until it is too late. America becomes a tool of global interests, and ECUSA becomes a tool of the Zeitgeist, the contemporary culture. Notice that the former, in doing so, loses all meaning as a republic. And the latter, in doing so, loses all meaning as a church.


  1. As always, thank you so very much for your excellent article.

    The parallels you make are extraordinary - the situations simply being indicative of power being hijacked time and time again by those who would promote their own self interests and/or the interests of an alien ideology that, otherwise, could not meet constitutional muster.

    The MO of the manipulator, the abuser, the seeker of control over others, those engaged in self preference, those disloyal to the oaths they solemnly swore, is always the same ....... and always includes " 'their' end justifies any means".

    As you so aptly stated, the bottom line is more than sobering and the death knell for us as a once glorious nation as well as the death knell of the once honorable episcopal church.

  2. Thank you for this very well done article .... good job!

    George Conger