Friday, May 03, 2013
Announcing Long Wars and the Constitution
This is a sobering post for me as I think back about war during my lifetime (that began in 1930). I recall tthe Seinfeld episode on Tolstoy's "War and Peace," when Jerry mentioned to Elaine (who worked for a book publisher) that Tolstoy's original title was "War, What Is It Good For?" that Elaine believed and made reference to in her dealings with a Russian author her publisher boss was working with on a book on Tolstoy. This was only a sit-com episode but was a reminder: what is war good for?
Some recent posts at this Blog have brought into play McCulloch v. Maryland (1819) on the powers of Congress. CJ Marshall's opinion (unanimous) included this statement: "The power to tax is the power to destroy." In reflecting on Prof. Griffin's post and remembering Ike's "farewell address" in early 1961 warning of the influence of the military-industrial complex that perhaps Marshall's statement could be reversed: "The power to destroy is the power to tax." And the greater is the power to destroy, the greater (it seems) is the power to tax on the basis of national security. The Boston Marathon Bombings make us realize, once again, the threats internally, an event that took North Korea off the front pages. Now it's Syria, which has a connection to Iran and its nuclear threats. This is all happening in a world that is becoming more interdependent, which seems incompatible with war(s) all the time. Elaine's answer to the question of the "original" title for "War and Peace" was "Absolutely Nothing," which was a protest rock song (that I wasn't even aware of).
Here's a link to a 1969 video:
I watch "Mash" re-reuns. The humor masks the realities of war. But the military-industrial complex is here to stay, unless ....
In semi-retirement from the practice of law, I audited courses at a local university under a senior program. In 2003 in an international relations course, I became aware of the National Security Strategy of 2002 of Pres. George W. Bush. It stated in effect that America was #1 in the world economically, politically and militarily and that America would do what was necessary to maintain such #1 positions. Until then I had not been aware of a requirement that a President issue such a Strategy periodically. While I have not compared that many such Strategies, it seems that changes may be be minimal from President to President. But this may change. See Hans Binnendijk's NYTimes 3/24/13 essay "Rethinking U.S. Security Strategy" for perhaps some significant changes reflecting, inter alia, the economy.
Perhaps Prof. Griffin can address the role of Congress with respect to such a Strategy.
Over the history of the republic, both Congress and the President have limited declarations of war to conflicts with major nation states until the AUMF against al Qaeda and its allies. We engaged in decades of war with the Native American tribes and smaller nations without the benefit of declarations of war. Thus, there is no real difference with how the nation has treated small wars before and after WWII left the president with a large standing army.
Also, contrasting a declaration of war from an AUMF makes a distinction without a difference. Both are congressional permissions for the executive to use the military to wage war. The only effective difference is the term being used.
The only presidential prosecution of a major war against a nation state without congressional permission I can think of is the Korean War. Vietnam had the Tonkin Gulf Resolution, Iraq (I & II) and Afghanistan had AUMFs.
Is there really a problem here or a change after WWII?
Has our SALADISTA (FKA our yodeler) forgotten Grenada? (With audio, I could provide my rendition in tribute to Ronald Reagan achieving his C-I-C chops.)
Time for Shag to write his memoirs. Maybe, comments here are done in lieu of that.
Some time back, I read "War and Responsibility" by John Hart Ely (RIP). Might try reading that again.
Anyway, sounds like a good read. Amazon says it is due on 5/13.
Joe's reference to the late John Hart Ely's book recalled for me the following comment of mine at the Legal History Blog when Mary Dudziak ran it:
Shag from Brookline said...
Back in the early/mid 1970s John moved into the home to the rear of ours. My wife and I were invited to a party there that included other conlaw professors (including a young Henry Monaghan at nearby BU Law). It was a very pleasant time especially near the end when there were just a few of us drinking some good wine and talking law. I was in private practice and mentioned Thomas Reed Powell, my conlaw professor back in the fall of 1952 so that I could get into the flow of the discussion.
We invited John and his lovely wife for drinks a short time later. As the evening progressed, we started talking about music, especially jazz, when John said he played the saxophone. I brought out a C-melody saxophone that a client had given me and John demonstrated that he had not lost him [his] embrochure. That was quite a long and enjoyable evening.
John and his family, including their St. Bernard, left after what seemed only a year or so. I followed his career thereafter and was shocked by his early demise.
I think of him every once in a while, especially now with the extensive discourses on originalism versus living constitutionalism clogging the Internet. What might John have contributed to the discussions with his wisdom, charm and wit? Maybe I'll read this article on John and listen at the same time to the late Illinois Jacquet on tenor saxophone.
April 5, 2008 at 11:49:00 AM EDT
I still think of John occasionally.
But no memoirs for me, to protect the innocent, near innocent and the guilty (putting myself in the latter category): Kiss, but don't tell.
Frank Snepp's Op-Ed in today's LATimes "The Vietnam syndrome - Regarding Iraq and Afghanistan, are we telling ourselves - and believing - the same false story we told in 1975" focuses on what these wars left behind. The Vietnam healing took a long time and is not yet complete. With Syria and Iran exploding or about to explode, the healing of and from Iraq and Afghanistan will be prolonged. What will our upcoming National Security Strategy tell us - that we have to remain the King of the Hill?
You might consider the faithful execution of the Laws power and treaty-based authorizations for the use of armed force (especially since Truman -- and note, Truman did not have an AUMF) -- see
This article in SSRN is especially useful re: the War Powers Resolution as well.
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"The power to destroy is the power to tax." And the greater is the power to destroy, the greater (it seems) is the power to tax on the basis of national security. The Boston Marathon Bombings make us realize, once again, the threats internally, an event that took North Korea off the front pages. Now it's Syria lol elo boostingPost a Comment
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