Let's Do Something Constitutional on Constitution Day

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Ms. Appleby is emerita professor of history at UCLA and co-director of the History News Service.

On September 17, Constitution Day, in 2002, scholars presented a petition, signed by 1,200 American historians, urging members of Congress to assume their constitutional responsibility to determine whether or not to declare war on Iraq. Reminding them that Congress had ignored this provision since its 1941 declarations of war on Japan, Germany and Italy, the petition explained why the Founding Fathers gave this power to them and to no other body.
As the petition explained: "Americans deserve to hear their representatives deliberate about a possible war, lest such a momentous course of action be undertaken by the president alone after a public airing filled with rumors, leaks, and speculations." It continued: "Leaving the president solely in control of war powers" has been "to the detriment of our democracy and in clear violation of the Constitution."
Now, four years into a disastrous war initiated without a congressional declaration, no member of Congress has publicly raised this issue since. A majority of Democratic representatives actually voted against the resolution giving President Bush the okay to invade Iraq, but none has announced that it was time to stop amending the constitution by selective neglect. No one has even suggested a congressional resolution to make the point.
The American people revere their Constitution. They can't seem to get their fill of books about the Founding Fathers either. Yet there's something empty about such reverence if our elected officials ignore key grants of power.
Take the case of the executive authority over the military.  Article 2, Section 2, couldn't be clearer: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Military of the several States when called into the actual service of the United States." Nowhere in this concise document is there any grant of the sweeping powers now claimed for the commander in chief.
Indeed, the congressional power to declare war and the president's power to head the military in time of war go together. The men who submitted their constitutional draft to the several states for ratification on September 17, 1787, left the declaring of war to members of Congress because their constituents would bear the brunt of war should they make the awful choice of resorting to violence. The Framers made the president commander in chief for efficiency and to avoid a dangerous concentration of power in Congress.
Passing resolutions giving the president permission to invade a country instead of formally declaring war is an evasion of responsibility on the part of Congress and a disregard of duty, moral as well as constitutional, to the men and women they represent.
Denying writs of habeas corpus, spying on Americans, abrogating treaties have all excited attention in recent years, but no abuse of power has graver consequences than leaving the war-making powers exclusively in the hands of the president.

The national rumor mill is full of stories that President Bush is planning to attack Iran. If ever there were a moment for Congress to reassume its constitutional powers to determine when American forces go to war, now is the time. Let's stop this silent amending of the Constitution that we hold so dear.

This piece was distributed for non-exclusive use by the History News Service, an informal syndicate of professional historians who seek to improve the public's understanding of current events by setting these events in their historical contexts. The article may be republished as long as both the author and the History News Service are clearly credited.

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Oscar Chamberlain - 9/14/2007


Good points. Although even I am uncomfortable a bit with the use of the General Welfare clause, I really think that most of what the government does today in the realm of domestic policy can be justified by a Hamiltonian/Marshal to interpreting the constitution combined with the expansion of federal responsibility under the 14th amendment. (The amendment, at a bare minimum, was designed to support Congressional Reconstruction, and Congressional actions in it anticipate a number of 20th century innovations.)

That doesn't mean that these policies are good, by the way, simply that they are constitutional.

As for finding rights in Roe v. Wade, how else can the 9th amendment function except via the courts? It is an amendment that states, in effect, that amendments are not necessary to find further rights.

One case say that the legislature can find them, but the judicial history of the Americans with Disability Act, shows how hard it is to go down that road.

The logic in Roe v. Wade would have been better if the majority had invoked the ninth amendment more forthrightly one the basis that women were no longer viewed constitutionally as inferiors in public life--a perspective rarely if ever enshrined openly in federal or state constitutions. Therefore, in the absence of constitutional limitations on the freedom of women, the Court had to consider the question of right of a woman to control her own pregnancy.

Thomas W Hagedorn - 9/12/2007

Oscar, as to your two points:

1. First, to refuse to accept these grants is about as practical as it would be for a university to refuse to participate in federal student loan programs. I am aware of only 2 universities or colleges that have done so. This is not a real, practical choice. The money has become too important to their budgets. Second, grants are only a small part of the business of the federal government. A very large part of the federal government budget is spent not on the "enumerated powers" specifically granted to the federal government, but under an extremely elastic interpretation of the "general welfare" clause. If you look at the usage of "welfare" at the time of the constitution and during the early republic, it clearly did not pertain to the welfare of large groups of individuals. It was not until FDR broke the constitution in 1937, by intimidating the Supreme Court, that the interpretation changed.

2. Of course Roe v. Wade and its important companion Doe v. Bolton relied upon the constitutional amendments to which you refer. My opinion is that when one reads the decisions, the logic used is quite tortured. The justices somehow found this new constitutional right in the "penumbras" (shadows) of the constitution (including amendments). The founders gave us a way to amend the constitution. We don't need Justices writing new amendments for us. In fact, that violates the constitution and undermines our government and the rule of law. But if we are to grant new powers to the Supreme Court, then they need to be made more accountable to the people(term limits, etc.)

Oscar Chamberlain - 9/11/2007

1. Much of the federal government's "intrusion" into areas such as education is done through grants that states can refuse. A Jeffersonian strict construction might argue that even offering such grants is unconstitutional, but not even Jefferson was a full fledged Jeffersonian.

2. As to Roe v. Wade, it was never based on the original constitution but on some combination of the 9th and 14th amendments. The 9th amendment makes clear that the Bill of Rights is not a complete enumerated list. The 14th extends to an admittely disputed extent the fundamental freedoms represented by that unnumerated list to the states. Where the 14th amendment goes, the 10 amendment withers.

In regard to abortion, the court was facing a new question, which is what does equality mean for a person who can get pregnant. One can disagree with the answer, but what was radical was not the reconsideration of abortion but the Court taking as a given that the liberty of women should be equal to that of men.

Lawrence Brooks Hughes - 9/10/2007

If you want to do something Constitutional on Constitution Day, why not repeal all the unconstitutional gun control laws? It would save lives.

Thomas W Hagedorn - 9/10/2007

Absolutely, Professor Appleby is correct. If we go to war, the constitution says that we need a declaration of war.

But wait, shouldn't we defend ALL parts of the Constitution, not just those that support those contemporary policies that we personally favor? (ie.opposition to the War in Iraq) For example, where in the constitution does one find the authorization for the massive involvement of the federal government in education, for example? Jefferson and Madison both wanted a national university, but recognized that the federal government did not have the power to found one. (Was Jefferson right on Separation of Church and State, but wrong on Separation of School and State?)

Similarly, most of the social services provided by the federal government are not authorized by the constitution. Let's get honest about this and pass some amendments to make the constitution a document that we can respect, instead of one to be used ala carte, picking and choosing those sections that we will follow and those we will ignore.

And what about unelected Supreme Court justices that write new sections in the name of "we the people"? Anyone who has read Roe v. Wade and Doe v. Bolton and is willing to be intellectually honest about it can recognize a wild departure from the constitution and its amendments, as originally intended. The states were in the process of working out the abortion issue according to the very different sectional views on abortion held in different sections, when "the Supremes" aborted that process. If abortion want it secured as a fundamental right, then they need to pass a constitutional amendment. Anything else makes a mockery of the constitution.

Since heavy federal control of education and abortion rights are orthodox positions of the academy, I will not hold my breath waiting for Professor Appleby and her supporters to join my call to the defend the ENTIRE constitution. What they fail to realize is that their lack of consistency greatly undercuts their argument, making their defense of the constitution seem to be just a rhetorical ploy on the road to getting US withdrawal from Iraq. They accuse Bush of abusing the constitution (Like Truman, Kennedy, Johnson, and Bush 41), but they are blind to the many other constitutional abuses of the last 70 years, done in the service of their policy prescriptions.

Let's defend the ENTIRE constitution.