The Revolution (6 page)

During my public life I have earned the nickname Dr. No, a reference to my previous occupation as a physician combined with my willingness to stand against the entire Congress if necessary to vote no on some proposed measure. (I am told I have been the sole “no” vote in Congress more often than all other members of Congress put together.) As a matter of fact, I don’t especially care for this nickname, since it may give people the impression that I am a contrarian for its own sake, and that for some reason I simply relish saying no. In those no votes, as in all my congressional votes, I have thought of myself as saying yes to the Constitution and to freedom.

The Constitution has much to say to us regarding foreign policy, if we will only listen. For over half a century the two major parties have done their best to ignore what it has to say, especially when it comes to the initiation of hostilities. Both parties have allowed the president to exercise powers of which the Framers of the Constitution thought they had deprived him. And since both parties have been contemptuous of the Constitution’s allocation of war powers between the president and Congress, neither one—with very rare exceptions—ever calls the other out on it.

The Framers did not want the American president to resemble the British king, from whom they had separated just a few years earlier. Even Alexander Hamilton, who was known to be sympathetic toward the British model, was at pains in the
Federalist Papers
to point out a critical difference between the king and the president as envisioned by the Constitution:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the
declaring
of war and to the
raising
and
regulating
of fleets and armies—all of which, by the Constitution under consideration, would appertain to the legislature.

Whatever kind of evidence you want to examine, whether constitutional or historical, the verdict is clear: Congress was supposed to declare war, and the president in turn was to direct the war once it was declared. This rule was scrupulously observed throughout American history until 1950 and the Korean War. Short of a full-fledged declaration of war, in lesser conflicts Congress nevertheless authorized hostilities by statute. Any exceptions to this general rule involved military activities so minor and on such a small scale as hardly to be worth mentioning.

The Korean War was the great watershed in the modern presidential power grab in war-making. President Harry Truman sent Americans halfway around the world without so much as a nod in the direction of Congress. According to Truman, authorization from the United Nations to use force was quite sufficient, and rendered congressional consent unnecessary. (Apart from being dangerous, that idea is simply false: Article 43 of the United Nations Charter states that any United Nations authorization to use force must be subsequently referred to the governments of each nation “in accordance with their respective constitutional processes”; this principle was reaffirmed in the United States in the debates over the United Nations Participation Act of 1945.) Truman also claimed that the Constitution’s commander-in-chief clause gave him the authority to plunge America into war on his own initiative.

Truman’s interpretation of the Constitution was completely untenable. Nothing in American history supports it: not the Constitutional Convention, the state ratifying conventions, the
Federalist Papers
, early Court decisions, or the actual practice of war-making throughout most of American history. Even the early examples that are typically cited as evidence of presidential war-making—John Adams’s actions during the Quasi War with France, and Thomas Jefferson’s confrontation with the Barbary pirates of north Africa—show no such thing. Both of these minor incidents were carried out according to congressional statute, with the Supreme Court ruling that a presidential directive contrary to such statutes was of no force.

In spite of its complete lack of constitutional foundation, this belief that the president may take the country to war on his own authority, without consulting anyone, has become the conventional wisdom in both major parties, although there has been a modest backlash against it since the Iraq war. Neoconservatives have been particularly eager to promote this deviation from the Constitution. This, it seems, is their version of the “living” Constitution.

Interestingly enough, one of the chief critics of Truman’s exercise of power was Senator Robert A. Taft, one of the most conservative Republicans of his day (and who was in fact known as “Mr. Republican”). Speaking on the Senate floor, Taft denounced Truman’s arguments and behavior in no uncertain terms:

I desire this afternoon to discuss only the question of the power claimed by the President to send troops anywhere in the world and involve us in any war in the world and involve us in any war in which he chooses to involve us. I wish to assert the powers of Congress, and to point out that Congress has the power to prevent any such action by the President; that he has no such power under the Constitution; and that it is incumbent upon the Congress to assert clearly its own constitutional powers unless it desires to lose them.

“In the long run,” Taft went on,

the question we must decide involves vitally, I think, not only the freedom of the people of the United States, but the peace of the people of the United States. . . . If in the great field of foreign policy the President has arbitrary and unlimited power, as he now claims, then there is an end to freedom in the United States in a great realm of domestic activity which affects, in the long run, every person in the United States. . . . If the President has unlimited power to involve us in war, war is more likely. History shows that . . . arbitrary rulers are more inclined to favor war than are the people, at any time.

Responding to various defenses offered by the president and administration officials, Taft declared: “I deny the conclusions of the documents presented by the President or by the executive department, and I would say that if the doctrines therein proclaimed prevailed, they would bring an end to government by the people, because our foreign interests are going gradually to predominate and require a larger and larger place in the field of the activities of our people.”

In 2002, as war with Iraq loomed, I proposed that Congress officially declare war against Iraq, making clear that I intended to oppose my own measure. The point was to underscore our constitutional responsibility to declare war before commencing major military operations, rather than leaving the decision to the president or passing resolutions that delegate to the president the decision-making power over war. The chairman of the International Relations Committee responded by saying, “There are things in the Constitution that have been overtaken by events, by time. Declaration of war is one of them. There are things no longer relevant to a modern society. We are saying to the president, use your judgment. [What you have proposed is] inappropriate, anachronistic; it isn’t done any more.”

What a relief that we have people in our government who will keep us posted on which constitutional provisions they have decided are no longer “relevant”!

Now, didn’t Congress authorize the war in Iraq after all? No, and certainly not in a manner consistent with the Constitution. Congress has no constitutional authority to delegate to the president the decision regarding whether to use military force. That power was consciously and for good reason put in the hands of the people’s elected representatives in the legislature.

Louis Fisher, one of the nation’s experts on the subject of presidential war powers, described what happened this way: “The resolution helped bring pressure on the Security Council to send inspectors into Iraq to search for weapons of mass destruction. They found nothing. As to whether war should or should not occur, the committee washed its hands. By passing legislation that allowed the president to make that decision, Congress transferred a primary constitutional duty from the legislative branch to the executive branch. That is precisely what the Framers fought against.”

Meanwhile, all these wars have to be fought by someone, and that is why the military draft is being spoken about more and more. Given the overseas ambitions of so much of our political class, a return of the draft may actually be closer than we realize. (As a matter of fact we have something like a de facto draft already, what with all the extensions being imposed on our troops.) Having stretched our military to the breaking point, where do they expect to find the troops for the next conflict?

The draft is a totalitarian institution that is based on the idea that the government owns you and can dispose of your life as it wishes. Republican Senator Robert Taft said that the draft was “far more typical of totalitarian nations than of democratic nations. It is absolutely opposed to the principles of individual liberty, which have always been considered a part of American democracy.” Conservative thinker Russell Kirk referred to the draft as “slavery.” Military conscription, said Ronald Reagan in 1979, “rests on the assumption that your kids belong to the state. . . . That assumption isn’t a new one. The Nazis thought it was a great idea.” The following year, in a speech at Louisiana State University, Reagan added:

I oppose registration for the draft . . . because I believe the security of freedom can best be achieved by security through freedom. The all-voluntary force is based on the sound and historic American principle of voluntary commitment to defense of freedom. . . . The United States of America believes a free people do not have to be coerced in defending their country or their values and that the principle of freedom is the best and only foundation upon which a defense of freedom can be made. My vision of a secure America is based on my belief that freedom calls forth the best in the human spirit and that the defense of freedom can and will best be made out of love of country, a love that needs no coercion. Out of such a love, a real security will develop, because in the final analysis, the free human heart and spirit are the best and most reliable defense.

In late 1814, fearing that conscription was about to come to America, Daniel Webster delivered a stirring speech against it on the House floor. (Webster served for many years in both the House and the Senate, and he held the office of secretary of state in both the early 1840s and early 1850s.) Webster’s belief in a strong central government made his words against the draft all the more striking. “Where is it written in the Constitution,” he demanded, “in what article or section is it contained, that you may take children from their parents, and parents from their children, and compel them to fight the battles of any war, in which the folly or the wickedness of Government may engage it?” The draft was irreconcilable with both the principles of a free society and the provisions of the Constitution. “In granting Congress the power to raise armies,” Webster explained, “the people have granted all the means which are ordinary and usual, and which are consistent with the liberties and security of the people themselves, and they have granted no others. . . . A free government with arbitrary means to administer it is a contradiction; a free government without adequate provisions for personal security is an absurdity; a free government, with an uncontrolled power of military conscription, is a solecism, at once the most ridiculous and abominable that ever entered into the head of man.”

Webster was right both morally and constitutionally. Nowhere in the Constitution is the federal government given the power to conscript citizens. The power to raise armies is not a power to force people into the army. As Webster put it,

I almost disdain to go to quotations and references to prove that such an abominable doctrine has no foundation in the Constitution of the country. It is enough to know that that instrument was intended as the basis of a free government, and that the power contended for is incompatible with any notion of personal liberty. An attempt to maintain this doctrine upon the provisions of the Constitution is an exercise of perverse ingenuity to extract slavery from substance of a free government.

He continued:

Congress having, by the Constitution, a power to raise armies, the Secretary [of War] contends that no restraint is to be imposed on the exercise of this power, except such as is expressly stated in the written letter of the instrument. In other words, that Congress may execute its powers, by any means it chooses, unless such means are particularly prohibited. But the general nature and object of the Constitution impose as rigid a restriction on the means of exercising power as could be done by the most explicit injunctions. It is the first principle applicable to such a case, that no construction shall be admitted which impairs the general nature and character of the instrument. A free constitution of government is to be construed upon free principles, and every branch of its provisions is to receive such an interpretation as is full of its general spirit. No means are to be taken by implication which would strike us absurdly if expressed. And what would have been more absurd than for this Constitution to have said that to secure the great blessings of liberty it gave to government uncontrolled power of military conscription? Yet such is the absurdity which it is made to exhibit, under the commentary of the Secretary of War.

Lesser forms of the draft, such as compulsory “national service,” are based on the same unacceptable premise. Young people are not raw material to be employed by the political class on behalf of whatever fashionable political, military, or social cause catches its fancy. In a free society, their lives are not the playthings of government.

One of the most contentious issues in our public life over the past three and a half decades has been abortion. As a physician, and in particular as an obstetrician who has delivered over 4,000 babies, I have always had a special interest in the subject of abortion. When I studied medicine at Duke Medical School from 1957 to 1961, the subject was never raised. By the time of my medical residency at the University of Pittsburgh in the mid-1960s, though, wholesale defiance of the laws against abortion was taking place in various parts of the country, including my own.