J. L. BELL is a Massachusetts writer who specializes in (among other things) the start of the American Revolution in and around Boston. He is particularly interested in the experiences of children in 1765-75. He has published scholarly papers and popular articles for both children and adults. He was consultant for an episode of History Detectives, and contributed to a display at Minute Man National Historic Park.

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Monday, January 29, 2007

The Constitution and the Commander-in-Chief

People are paying a lot more attention these days to how the U.S. Constitution defines (and doesn’t define) the military authority of the President and Congress. Members of the Bush-Cheney administration have cited the President’s role as “commander-in-chief” as if that conveyed the power to unilaterally decide anything vaguely military, including (at latest count) overseas deployments, surveillance of anti-war activists in the U.S. of A., trials of people who are specifically not classified as prisoners of war, &c.

In today’s New York Times Assistant Editor and lawyer Adam Cohen uses the “Editorial Observer” column to look at what the Constitution and Supreme Court decisions really say. Here’s an extract about the document’s original context and early interpretation:

The Constitution’s provision that the president is the commander in chief clearly puts him at the top of the military chain of command. Congress would be overstepping if, for example, it passed a law requiring generals in the field to report directly to the speaker of the House.

But the Constitution also gives Congress an array of war powers, including the power to “declare war,” “raise and support armies” and “make rules concerning captures on land and water.” By “declare war,” the Constitution’s framers did not mean merely firing off a starting gun. In the 18th century, war declarations were often limited in scope — European powers might fight a naval battle in the Americas, for example, but not battle on their own continent. In giving Congress the power to declare war, the Constitution gives it authority to make decisions about a war’s scope and duration.

The Founders, including James Madison, who is often called “the father of the Constitution,” fully expected Congress to use these powers to rein in the commander in chief. “The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it,” Madison cautioned. “It has accordingly with studied care, vested the question of war in the Legislature.”

In the early days of the republic, the Supreme Court made clear that Congress could limit the president’s war powers — notably in the Flying Fish case. In 1799, during the “Quasi War,” the undeclared sea war between the United States and France, Congress authorized President John Adams to clamp down on trade between the two nations by stopping ships headed to French ports. But Adams went further, ordering commanders to stop ships that were sailing to or from a French port.

When the Flying Fish was seized while sailing from a French port — something Congress had not authorized — the ship’s owner sued. The Supreme Court decided in his favor, ruling that the president had no right to issue the order he did. John Marshall, the nation’s greatest chief justice [shown above], declared that even in a time of hostilities, a president’s decision to act militarily beyond what Congress had authorized was “unlawful.”
I think anyone reading Gen. George Washington’s wartime correspondence would notice how much he deferred to Congress on major decisions. He advised that legislature strongly, clearly advocating for certain decisions and almost begging for others, but he didn’t view his appointment as commander-in-chief to mean that he was the ultimate decision-maker and was careful to avoid implying he was. He worked for Congress, which in turn worked for the people of the thirteen states.

Later Washington presided over the Constitutional Convention and served as the first President under its new federal structure. For his remarks on the limits of Presidential powers, see this posting.


Anonymous said...

I have cobbled together some of my notes on the subject. These notes are from Military Tribunals And Presidential Power: American Revolution To The War On Terrorism"
by Louis Fisher.

The Articles of Confederation vested executive authority and war power in Continental Congress for both "perfect" and "imperfect" wars.

"Perfect War" is formally declared. It destroys national peace and tranquility, and lays the foundation of every possible act of hostility.

"Imperfect War" is merely authorized, and does not entirely destroy the public tranquility, but interrupts it only in some particulars, as in the case of reprisals.

Today the Perfect War is anomalous, whereas the Imperfect War is the norm.

In 1787 these powers were vested in Congress with the ratification of the Constitution. The Constitution vested the War Power in the President, and was originally intended to repel sudden attacks but not to grant offensive power to attack. The Framers placed power to declare war in Congress because of their belief in a republic, popular control, and representative democracy. After all, Congress represents, at least in theory, the will of the people.

The Philadelphia Conventional Delegates made the President the Commander in Chief, but made this position subordinate to Congress. The Constitution says that the President acts as Commander in Chief "when called..." Article I gave Congress the power to provide
"for calling forth the Militia..."

The States feared presidential power in one person. Designating President as Commander in Chief preserved civilian supremacy over the military. After all, the President is a civilian, not a military officer, and the military must be at his control.

The notes from Fisher are a mixture of textual and historical analysis. Such analysis has great merit, but there are many different modalities of Constitutional interpretation which can be used to support various positions. Professor Philip Bobbitt, a scholar on Constitutional Law, suggests that the modalities include: Textual, Historical (Originalism), Structural, Precedential, Prudential, and Ethos.

J. L. Bell said...

Thanks for the thoughtful comments and the link. I think it's helpful to acknowledge that the terms "perfect war" and "imperfect war" don't appear in the Articles of Confederation, though that constitution does go into a lot more detail than the current U.S. Constitution about how a state might start fighting without prior Congressional approval (in particular, conflict with native peoples).

The perfect/imperfect war terminology seems to come from a 1800 court case, Bas v. Tingy. Or perhaps that language was already in circulation at the time. In any case, it would have force under the current U.S. Constitution.

Last month the Washington Post published an editorial by Michael J. Glennon which used that terminology, and argued that the original reasons and thus conditions for the current war had been met, so that authorization no longer applied.