Wednesday, January 18, 2006

Gemarah is The Constitution is Gevaldik

The better magazines are debating the president's power to wage war in a manner that reminds me of the bes medrash. Here's how the argument might appear on a page of the Vilna Shas:

MISHNA: The Congress shall have Power to... declare War

GEMARA: Rabbi Yoo says: "declare" not "engage in" From this we learn the power to engage in war resides with the president, and because our Torah proscribes no check on his war making power, he may do as he pleases. As we learn from Blackstone ,"the monarch had no need to declare war before beginning hostilities against another nation."

Rabbi Sunstein says: Ah, but our Sages have specifically rejected Blackstone, for example Rav Washington says: "The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they have deliberated on the subject, and authorized such a measure." And Rav Kent said "war cannot lawfully be commenced on the part of the United States, without an act of Congress."

DovBear says: The textual argument of Rabbi Yoo is very strong, but we do not rule by the text alone. Our traditions along with the view of the founders appear to support Rabbi Sunstein: The president may not do as he pleases during the prosecution of war.

Declare: A declaration recognizes the state of affairs, rather than authorizing the creation of that state of affairs

Engage In: Elsewhere (Article I, Section 10) it says that states may not "engage in War" suggesting that the Framers meant a difference between the two terms.

Our Torah: The Constitution

No Check: Save the Power of the Purse. War must be paid for by the House.

As he pleases: Wiretapping, detaining enemy combatants without hearings, and torture, included.

Our sages: James Wilson, et al.

Our traditions: On many occasions, the courts have required explicit congressional support for presidential action, even when national security was at risk.

The view of the founders: Per Sunstein: "James Madison wrote that the Constitution has, "with studied care, vested the question of war in the Legisl[ature]." Alexander Hamilton said that the legislature "can alone actually transfer the nation from a state of peace to a state of hostility." John Marshall declared that "the whole powers of war" are constitutionally "vested in Congress." Thomas Jefferson wrote that under the Constitution, "one effectual check to the Dog of war" was "transferring the power of letting him loose from the Executive to the Legislative body." In the Pennsylvania Ratifying Convention, James Wilson noted that under the Constitution, the decision whether to go to war "will not be in the power of a single man, or a single body of men." In South Carolina, Pierce Butler, an active participant in the original debates, explicitly said that the Constitution denied the power of "making war or peace" to the president, because it was "objected to, as throwing into his hands the influence of a monarch, having an opportunity of involving his country in a war whenever he wished to promote her destruction." There are not many issues on which James Madison, Thomas Jefferson, John Marshall, Alexander Hamilton, George Washington, James Wilson, John Adams, and Pierce Butler can be said to agree.