Balkinization  

Monday, September 25, 2006

. . . And From the Roman Republic

Stephen Griffin

Mark Graber uses Greek democracy to critique the Iraq war. Let's add to that the relevant example of the Roman republic, which limited military dictatorship in time of invasion (and thus the excuse of military necessity) to one year. The example set by the Roman republic (familiar to the framers of our Constitution, of course) is particularly relevant to the 9/11 Authorization to Use Military Force (AUMF) and the apparent authority it provides to prosecute an endless "war on terror." Unlike Mark, I do not consider the absence of a formal declaration of war to be significant. However, there is a great question (not faced by the otherwise analytically sharp Harvard Law Review article by Goldsmith and Bradley on the AUMF) as to whether our constitutional system is compatible with a war without end. Surely the Roman republicans would have thought not.

Comments:

Roman law permitted the Senate to nominate a dictator (or rather, for the Senate to allow the consul to nominate their selected dictator) for only six months, not a year.

Beyond your inaccurate representation of the length of a military dictatorship in Rome, it really isn't an appropriate analogy to the current War on Terror or President Bush. Rome's military dictatorship was an absolute right to do whatever the dictator needed to do to end the crisis which necessitated his appointment. A Roman dictator could amend Roman law however he wished and could act as the highest court in the land with no ability to appeal his decisions. Considering that last time I checked, valid American laws still required bicameralism and presentment, and the Supreme Court is still intact, there really isn't much in American government that resembles a Roman dictatorship.
 

Fern,

Actually, the resemblance is plain:

"In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."

John Yoo, Memorandum Opinion for the Deputy Counsel to the President: "The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them", DOJ OLC (2001.09.25).
 

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