There is one question that could redefine the final weeks of the 2016 presidential campaign. An affirmative answer by Hillary Clinton or Donald Trump could disrupt American politics:
As president, would you commit that no American man and woman will be sent into combat without a declaration of war, passed by both houses of Congress, as required by the Constitution?
A Constitutional Detour
The United States last declared war more than seventy years ago, during the Second World War. Yet the nation has been at war almost continuously since that time. Constitutional scholar Bruce Fein notes: Approximately 20 percent of our current population has never lived a single day with the United States at peace, and probably never will.
Almost without noticing, the United States is taking on the trappings of an inadvertent empire. Is it a coincidence that our wars—by whatever name—have become ever longer, less clear in aims, and notably unsuccessful in results?
American participation in the First World War was less than two years. American participation in the Second World War was less than four years.
Compare those to our undeclared wars. American participation in the Vietnam War stretched over the course of two decades, including many years of extensive military engagement. The so-called War on Terror, begun in the aftermath of the 9-11 attacks in 2001, remains underway. Military interventions in the Middle East theatre—from Afghanistan and Iraq, to Libya have been undertaken by presidents with inconsistent, limited authorizations by Congress. Related “police actions,” such as recent strikes in Yemen ordered by the president, pass almost without public notice, much less sustained debate.
Executive authority, unburdened by political accountability, has expanded exponentially. For years, it’s been a one-way journey. Wars without end beget government without limits. The demands of war that are acceptable in circumscribed responses to recognized existential threats, become untenable when made permanent. Secrecy is routinized. Abridgment of civil rights is rationalized. Resource allocations are not scrutinized. Special interests emerge, reinforcing the durability of dubious arrangements.
Disruption in Real Time
Our next president could disrupt this state of affairs, demanding that congressional authority to declare war be recognized and restored.
Approximately 20 percent of our current population has never lived a single day with the United States at peace, and probably never will.Bruce Fein
This would raise many questions. What is a “war”? How does the nation craft a declaration of war when confronting non-state actors? What does it mean when a president declares a “war on terror”? What are the strategies that underlay American commitments in terms of military bases, foreign aid and trade arrangements?
These are not easy questions. Posing them will surely point toward hard choices. However, the difficulty presented is not a reason to maintain the status quo. Their significance points to the need for more citizen input and greater government accountability.
If an international cause merits the sacrifice of life and limb by American men and women in uniform, should it not merit compliance with the Constitutional requirement of a declaration of war?
The Constitution is Clear
The Framers sought to ensure that in the United States, the decision to unleash the dogs of war would not be reposed in a monarch or any other individual. This was a revolutionary, disruptive notion. George Washington, Thomas Jefferson, Alexander Hamilton, and James Madison differed on many things. Nonetheless, they were as one on this foundational proposition.
Robert H. Jackson is renowned universally as a consequential U.S. attorney general, Nuremberg war crimes prosecutor, and associate justice of the Supreme Court. He declared:
Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the [Supreme] Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture.
Having engaged in a revolution against the British Empire, which possessed the most powerful military machine in the world, our Founders were determined that the American experiment not mutate into an empire of its own.
Back to the Future
As in other areas of our politics and governance, the Twentieth Century saw the end of longstanding, shared understandings of the exercise of war powers.
This is understandable. The Twentieth Century was an age of centralization. Our global adversaries, most notably Nazi Germany and then the Soviet Union, were command-and-control regimes that seized the initiative against slowly roused democracies. It’s a truism that one must take care not to come to resemble one’s enemies in the course of fighting them.
Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress.Robert H. Jackson, former U.S. attorney general
By contrast, the early Twenty-First Century is a decentralizing moment. Information technologies have pushed capacities for action further from centralized organizations, whether in government, politics, or business. Citizens have the potential to participate in our governance to an unprecedented extent. This created immense opportunities for our representative institutions.
The Constitution, framed in a decentralizing moment, has renewed relevance in our time. Having seen the limitations of American military power in recent decades, we’re searching for alternative approaches. Rediscovering our constitutional provision of a declaration of war could at once restore the Founders’ vision and reinvigorate our global engagement.
If candidates Trump and Clinton truly wish to disrupt politics, they can start by committing to obtaining a congressional declaration before sending many of our best citizens into harm’s way.