“Nowhere was the American rejection of authority more complete than in the political sphere,” writes historian David Donald. “The decline in the powers of the Federal government from the constructive centralism of George Washington’s administration to the feeble vacillation of James Buchanan’s is so familiar as to require no repetition here. . . . The national government, moreover, was not being weakened in order to bolster state governments, for they too were decreasing in power. . . . By the 1850s the authority of all government in America was at a low point.”

The United States, already one of the most prosperous and influential countries on the face of the earth, had practically the smallest, weakest State apparatus.

The great irony of the Civil War is that all that changed at the very moment that abolition triumphed. As the last, great coercive blight on the American landscape, black chattel slavery, was finally extirpated—a triumph that cannot be overrated—the American polity did an about-face.

Insofar as the war was fought to preserve the Union, it was an explicit rejection of the American Revolution. Both the radical abolitionists and the South’s fire-eaters boldly championed different applications of the revolution’s purest principles. Whereas the abolitionists were carrying on the assault against human bondage, the fire-eating secessionists embodied the tradition of self-determination and decentralized government. As a legal recourse, the legitimacy of secession was admittedly debatable. Consistent with the Antifederalist interpretation of the Constitution that had come to dominate antebellum politics, secession undoubtedly contravened the framers’ original intent. But as a revolutionary right, the legitimacy of secession is universal and unconditional. That at least is how the Declaration of Independence reads. “Put simply,” agrees William Appleman Williams, “the cause of the Civil War was the refusal of Lincoln and other northerners to honor the revolutionary right of self-determination—the touchstone of the American Revolution.”

American nationalists, then and now, automatically assume that the Union’s breakup would have been catastrophic. The historian, in particular, “is a camp follower of the successful army,” Donald wrote, and often treats the nation’s current boundaries as etched in stone. But doing so reveals a lack of historical imagination. Consider Canada. The United States twice mounted military expeditions to conquer its neighbor, first during the American Revolution and again during the War of 1812. At other times, including after the Civil War, annexation was under consideration, sometimes to the point of private support for insurgencies similar to those that had helped swallow up Florida and Texas. If any of these ventures had succeeded, historians’ accounts would read as if the unification of Canada and the United States had been fated, and any other outcome inconceivable. In our world, of course, Canada and the United States have endured as separate sovereignties with hardly any untoward consequences. “Suppose Lincoln did save the American Union, did his success in keeping one strong nation where there might have been two weaker ones really entitle him to a claim to greatness?” asks David M. Potter. “Did it really contribute any constructive values for the modern world?”

The common refrain, voiced by Abraham Lincoln himself, that peaceful secession would have constituted a failure for the great American experiment in liberty, was just plain nonsense. “If Northerners . . . had peaceably allowed the seceders to depart,” the conservative London Times correctly replied, “the result might fairly have been quoted as illustrating the advantages of Democracy; but when Republicans put empire above liberty, and resorted to political oppression and war rather than suffer any abatement of national power, it was clear that nature at Washington was precisely the same as nature at St. Petersburg. . . . Democracy broke down, not when the Union ceased to be agreeable to all its constituent States, but when it was upheld, like any other Empire, by force of arms.”

“War is the health of the State,” proclaimed Randolph Bourne, the young Progressive, disillusioned by the Wilson administration’s grotesque excesses during World War I. Bourne’s maxim is true in two respects. During war itself the government swells in size and power, as it taxes, conscripts, regulates, generates inflation, and suppresses civil liberties. Second, after the war there is what economists and historians have identified as a ratchet effect. Postwar retrenchment never returns government to its prewar levels. The State has assumed new functions, taken on new responsibilities, and exercised new prerogatives that continue long after the fighting is over. Both of these phenomena are starkly evident during the Civil War.

Before Fort Sumter national spending was only about $2.50 per person per year, or $50 per person in today’s prices. The central government relied on only two sources of revenue: a very low tariff and the sale of public lands. The war brought not only protectionist import duties but also a vast array of internal excises, the country’s first national income tax, and an extensive internal revenue bureaucracy with 185 districts reaching into every hamlet and town. Federal outlays soared from 1.5 percent of the economy’s output to almost 20 percent, approximately what the central government spends today. The national debt climbed from a modest $65 million, less than annual expenditures, to $2.8 billion. This provided the justification for replacing the antebellum monetary system of free banking and financial deregulation (which some economic historians believe was the best the country has ever had) with inflationary fiat money and nationally regulated banking.

Protectionism would continue to dominate U.S. trade policy mercilessly until the Great Depression and was just one manifestation of the Lincoln administration’s effort to enlist special interests through government subsidies and privileges. The Yankee Leviathan also was responsible for the first federal aid to transcontinental railroads, land grants for higher education, a Department of Agriculture for farmers, and troops to break strikes for employers. The prewar regime of Jacksonian laissez faire was effectively supplanted by Republican neomercantilism, an alliance between business and government that became so scandalous during the Grant era that it has gone down in history as, to use Vernon Louis Parrington’s label for the postwar feeding frenzy, the “Great Barbecue.”

Lincoln’s war delivered a blow to civil liberties as well. The Union’s resort to nationally administered conscription touched off so much resistance that the President suspended habeas corpus throughout the North. Traditional estimates are that the administration imprisoned without trial or charges 14,000 civilians during the conflict, but some historians believe the figure to be much too low. To be sure, the greater number were citizens of either the border states or the Confederacy itself, and many of those arrested secured quick release within a month or two, usually after swearing a loyalty oath. Yet the federal government at the same time monitored and censored both the mails and telegraphs and shut down over 300 newspapers for varying periods.

Many of these measures were of course abandoned at the fighting’s end. Federal spending fell from its wartime peak to only 3 to 4 percent of GDP. Although not a trivial decline, it still left spending at twice prewar levels, and the largest postwar expenditures were war-related. Interest on the war debt initially accounted for 40 percent of federal outlays, and by 1884 veterans’ benefits were consuming 30 percent. These benefits were so lavish that they constitute the national government’s first old-age and disability insurance and stand as a precursor to Social Security. The impact of the Civil War was even felt in the seemingly unrelated area of obscenity. Congress passed the first act regulating mail content in response to complaints that troops were ordering pornographic material, and this became the basis for the Comstock witch hunts of the 1870s.

The Real Turning Point

This ratchet effect is a phenomenon historians frequently observe. Yet the Civil War did something more. Despite wars and their ratchets, governments must sometimes recede in reach, else all would have been groaning under totalitarian regimes long ago. Both conservatives and so-called liberals date the major political turning point in American history at the Great Depression of 1929. Previously Americans are supposed to have self-reliantly resisted the temptations of government largess and confined federal power within strict constitutional limits. Although Franklin D. Roosevelt’s New Deal is responsible for Social Security, which along with health care, now ranks as the national government’s primary expense, this legend ignores several inconvenient facts. To begin with, the New Deal simply emulated the Wilson administration’s previous war collectivism. Moreover the growth of government under the New Deal was trivial compared to its growth during the United States’ next major conflict: World War II.

More astute analysts push the watershed in U.S. history back to the Progressive Era. Progressivism emerged at the beginning of the twentieth century as a diverse inclination, varying in different parts of the country and including members of all political parties. But it became the country’s first dominant mindset to advocate government intervention in the free market and in personal liberty at every level and in every sphere. My contention, however, is that America’s decisive transition must be dated even earlier.

The Yankee Leviathan co-opted and transformed abolitionism. It shattered the prewar congruence among anti-slavery, anti-government, and anti-war radicalism. It permanently reversed the implicit constitutional settlement that had made the central and state governments revenue-independent. It acquired for central authority such new functions as subsidizing privileged businesses, managing the currency, providing welfare to veterans, and protecting the nation’s “morals”—at the very moment that local and state governments were also expanding. And it set dangerous precedents with respect to taxes, fiat money, conscription, and the suppression of dissent.

These and the countless other changes mark the Civil War as America’s real turning point. In the years ahead, coercive authority would wax and wane with year-to-year circumstances, but the long-term trend would be unmistakable. Henceforth there would be few major victories of Liberty over Power. In contrast to the whittling away of government that had preceded Fort Sumter, the United States had commenced its halting but inexorable march toward the welfare-warfare State of today.

If originalism entails the problem Davies raises, it also has at least one more. Original intent, meaning, or understanding is inevitably multiple. John L. O’Sullivan, former editor of the Democratic Review, noticed this in 1862. The Constitution, he wrote, was America’s “ark of the covenant,” but “no man could ever exactly say what the Constitution was.” Its “elastic generalities of phrase” hid the deep divide “between the ‘Consolidation’ and the ‘State Rights’ parties in the Convention.. . .” Constitutional interpretation had been “twofold from the outset . . . Hamiltonian and Jeffersonian, or indeed Northern and Southern.” There was “not one . . . universally recognised Constitution, but two, widely different, and indeed conflicting” (my italics).

But what of our first constitution, the Articles of Confederation? For a time, they suited most of the people and the states. On the other hand, a vocal group in Congress was violently unhappy over the Articles’ failure to establish effective federal (national) power. Joseph Jones of Virginia, newly arrived in mid-1780, complained, “This Body never had or at least in few instances have exercised powers adequate to the purposes of war. . . .” Charles Thomson lamented in 1784, “A government without a visible head must appear a strange phenomenon to European politicians. . . .”

With new members, a dangerous optical malady often set in—“Continental Vision.” Writing to James Madison on February 20, 1784, Thomas Jefferson described the process: “[Young statesmen learn to] see the affairs of the Confederacy from a high ground; they learn the importance of the Union & befriend federal measures when they return.” Continental vision and “insufficient” power: Here was a dilemma, one that American nationalists—James Wilson, Madison, Alexander Hamilton, Robert Morris, and many others—determined to resolve. In their view, the country needed a mercantilist political economy, a standing army, public debt, and effective central taxation—things structurally and systematically interrelated. Nationalists wanted central power, as much of it as possible. Under the Confederation they made some interesting attempts to get it. We may begin with war powers.

Invoking vague war powers, early American nationalists urged that Congress ought to have certain powers and, therefore, did or “must” have them, neatly getting an “is” from an “ought.” Big on assertion, Congress spent the war complaining of its lack of real power, including power to tax. Yet mysteriously, Americans defeated Britain without anyone’s giving Congress many powers it craved or claimed. What actually happened?

Acting Without Authority

In practice, Congress coordinated revolutionary activity in the 13 incipient states and conducted diplomatic activity in their (plural) name. In so doing, Congress constantly recommended specific actions to the states, relying on them to carry the measures out. Before ratification of the Articles (1781), Congress often undertook measures for which it could show no obvious authority whatsoever, including the debt it created, its adoption of a European-style code of military “justice” for the Continental Army, and its creation of that army itself. Congress could only appeal to the wartime emergency, iron necessity, “public safety,” and the like. Under the Articles, nationalists complained endlessly of the powers Congress had “lost” with ratification. They referred of course to earlier congressional claims of inherent power—those being “proven” by the fact that Americans in their states had been good enough to cooperate. The price of following Congress’s advice and recommendations was to be told later that one had followed orders and obeyed commands.

American historians largely agree with the original claimants. Legal historian Edward S. Corwin was a case in point. Congress had, he admits, “no real governing power.” The states, on Congress’s recommendations, seized property, repressed Tories, suspended habeas corpus, and undertook “measure after measure that entrenched upon the normal life of the community drastically.” Regrouping, he concludes: “The fact, however, that this legislation came from the state legislatures whereas the war power was attributed to the United States in the Continental Congress served to obscure the fact that the former was really an outgrowth of the latter.”

This calls to mind the paradox, which I have noted previously (“On Misplaced Concreteness in Social Theory,” The Freeman, May 2006), whereby actual successful social action tends to be denounced as a dreadful evil or social problem. In the case at hand, cooperation serves to allocate authority away from those who acted. Whether that authority really entailed a spectral “war power” need not detain us. Whatever that last abstraction did for Congress from 1776 to 1781, and even under the Articles, 1781–1783, it did very little for it after 1783 without the war. Nationalists saw this problem coming. Late in the war, Gouverneur Morris hoped for “a Continuance of the War, which will convince people of the necessity of Obedience to common Counsels. . . .”

In the hunt for added congressional powers, nationalists employed deductions from International Law and pleaded Machiavellian necessities and moments. According to Merrill Jensen, they sought “to establish precedents [from which] they could argue the sovereignty of Congress.” Jensen stresses the interest of certain land companies in having their titles confirmed by the higher “government,” as well as the public creditors’ desire to have depreciated paper claims redeemed at somewhere near face value.

Hamilton hoped Congress would simply assert “undefined Powers” and see what they got away with. They should “assume Congress had once had such powers.” Boldness was needed to build a governing coalition of army, public creditors, and other nationalists. Madison was more indirect. In a Report to Congress in March 1781, he, James Duane, and James Varnum asserted a “general and implied power. . . to carry into effect all the Articles of the said Confederation against any of the States” but could find “no determinate and particular provision.” They therefore urged amendment of the Articles so that Congress could “employ the force of the United States” against states failing to meet funding requisitions.

After Rhode Island rejected an amendment to create a federal impost, Hamilton, Madison, and Thomas FitzSimons drew up a lengthy Congressional Reply in December 1782, calling the impost “a measure of necessity.” Congress, they urged, had “an indefinite power of prescribing the quantity of money to be raised.” This brought the impost “within the spirit of the Confederation.” Further, Congress, “empowered to borrow money,” had power “by implication, to concert the means necessary to accomplish that end.” Arguing against Rhode Island’s position, Robert Morris—federal financial czar—wrote on October 24, 1782, “[I]f a thing be neither wrong nor forbidden it must be admissible [and] if complied with, will by that very compliance become constitutional.” Now, mere acquiescence was “consent,” and consent bred legality. Meanwhile, having thought the thing over, other states had “rescinded” their earlier approval of the impost amendment.

Nationalist aspirations for revenue did not lessen with time. In a speech on January 28, 1783, Madison found “general revenue” to be “within the spirit of the Confederation.” Hamilton agreed, but un-bagged the cat by saying, “[I]t was expedient to introduce the influence of officers deriving their emolument from . . . Congress.” Madison often suggested naval blockades of offending states. He seems also to have spotted an implied power to coerce the states, even without an amendment. (Thirty years later, as president, Madison tried to coerce Britain and France with an embargo, but got the War of 1812 instead.) Even Governor George Clinton of New York spied an implied “Power of compelling the several States to their Duty and thereby enabling the Confederacy to expel the common Enemy.”

But Congress could not make the states ratify an amendment for a modest impost, much less one for their own coercion or blockade. For now, big notions drawn from Machiavelli, Vattel, and Pufendorf were of no avail. They did serve, however, in building both nationalist ideology and a theory of the union, and they yet serve historians who want philosophical foundations for the practical—even cynical—system the nationalists put over a few years later.

Another possible way out was the treaty power duly inscribed in the ninth Article of Confederation. In a centralizing mood, Jefferson himself, writing to James Monroe from Paris on June 17, 1785, advocated using the treaty power “to take the commerce of the states out of the hands of the states” and give it to Congress, which under the Articles had “no original and inherent power” over the subject. But Jefferson did not try to find implied powers in the Articles, nor did he deduce powers from some congressional sovereignty that “necessarily” arose under international law.

The treaty-power dodge reappeared much later, fueling the Old Right’s Bricker Amendment movement of the early 1950s. Senator John Bricker (R-Ohio) and his supporters wanted to keep Congress and the president from aggrandizing themselves under the vaguely worded treaty clause of the present constitution. They meant for their amendment, which failed in the Senate by one vote in February 1954, to meet the problem.

Utilizing Public Debt

Nationalists focused more and more on the public debt. Congress quit issuing credit money in late 1779. Thereafter, as Madison wrote to Jefferson on May 6, 1780, Congress became “as dependent on the States as the King of England is on the Parliament.” Nationalists saw this situation as completely improper. And so, Lance Banning observes, they “proposed to use the national debt to create a single nation—or at least an integrated national elite—where none existed in 1783.”

E. James Ferguson writes, “The Union was a league of states rather than a national system because Congress lacked the power of taxation. This was not an oversight.” Further, the federal debt itself was “inconsistent” with such a union. Jack N. Rakove adds, “Congress lacked the effective power or, once the Articles were ratified, the constitutional right either to levy taxes on its own authority, or to compel the states to obey its recommendations. It is certainly true that the states would never have ratified the Articles had they contained such provisions. . . .”

Nationalists feared the states would pay off the debt. Like the English Whigs in 1649, they needed the debt as the “cement” of union, as Hamilton called it. The debt was needed, in Rakove’s words, “to justify endowing Congress with independent revenues.” If revenue were found, public creditors and the underpaid officer class would rally to the cause of national power. All these advocates well understood the inflationary potential of consolidated public debt in the hands of fractional-reserve bankers. The economy would boom under their own profitable management.

Nationalists conducted an unrestrained campaign against the Confederation’s limits on power. “Water would not boil” due to the Articles. More important, nationalists discovered The People. Within doors, Federalists habitually denounced the people as a great rabble, the source of danger, wild enthusiasms, paper money, and attacks on property. Now they hastened to embrace John Locke’s empty marker of popular sovereignty to justify a takeover in the name of the people. Then they hustled the people off stage so the new machine “could go of itself.”

Social-Contract Theory

Anyone who reads Madison’s enormous journal of the Constitutional Convention will find the delegates arguing a mass of undigested social-contract theory big enough to sicken a hog. Here is an economical explanation: ambitious men with political, economic, and ideological motives wanted a central government with vague (therefore large) powers. They had, doubtlessly, a certain kind of public spirit. The system they created unfolded its inherent defects over time. To provide cover for their more specific goals—power, profit, prosperity, fisheries, security for slavery, land grabbing, glory, fame, good government—the framers issued great clouds of political “science” and theory that have confused Americans ever since. Madison was the outstanding mystifier, but there were others. Nationalists artfully decried the governments of the states while championing the Sovereign People, neatly dodging the question of who the people were and whether there were 13 peoples or one.

The constitutional deed and its defending rationales do not seem much grander than the origins of many other states. But as Jesse Lienesch has written, the founders succeeded in presenting themselves as demigods who saved the nation. It is a point of American orthodoxy to believe them. Charles Beard and J. Allen Smith, seconded by Albert Jay Nock, got much flak for recognizing that the Federalists had mixed motives and self-serving goals.

To win ratification, American nationalists, rechristened as “Federalists,” sold the new Constitution as a document involving “limited” and “enumerated” powers. On this reading, any power not obviously granted was not granted and the new outfit would not have it. Having cornered themselves verbally, Federalists showed their original understanding in the first Congress by enacting all manner of laws directly in conflict with their assurances to the ratifying conventions. Senator William Maclay of Pennsylvania especially noted the Judiciary Act, Hamilton’s funding system, economic coercion to force Rhode Island to ratify the Constitution, the War Department, a standing army—and federal consolidation generally. (See Maclay’s Journal at http://tinyurl.com/3ch2nm.) Seeing this, the Federalists’ opponents, with a different original understanding, argued for theirs as “Republicans” led by Jefferson, John Taylor, and others. They meant to hold the former promising parties to their pledges. Historian Garry Wills affirms that the ratifiers were somewhat swindled, but holds this to be a universal blessing that makes modern American governance possible.

And for all their high-minded talk about The People, popular consent, and so on, nationalists did not rule out violence. Benjamin Rush wrote Richard Price on June 2, 1787, that, if needed, “force will not be wanting,” since the wealthy and military classes wanted a new government. As Jensen writes, “It was power, not powers, that they wanted.”

Could the nationalizers have gotten their way by ingeniously stretching the Articles? One possible way would have been to filch the states’ powers and reassemble them into a collective power. Nationalists might have contended that a majority of congressional delegations—each delegation embodying, fully and immediately, its state’s separate sovereign powers—could, in concert, do any old thing, outside the Articles, that came to mind. Similar ideas had yielded results before the Articles came into force in 1781.

The nationalists were not the sort to be denied power. They might have made interesting inroads by discovering “indefinite” or “implied” powers, or by invoking the Articles’ “spirit.” Patiently accumulating “precedents,” they could cash them in, down the road, as grounded on powers that had always “been there.” But nationalists were not as patient as, say, the Supreme Court.

And certain structural advantages still remained to the states and the people(s). Their key advantage involved taxation. Congress had to ask the states for its money. It still seems a good arrangement.

Here our sub-theme—originalism—returns. It appears that original contestants contested many constitutional “meanings” at the very beginning. On this view, any simple originalism means clinging to original mistakes. The framers’ opinions were certainly original; how or whether they dictate to us today through the ether is another matter.

Works Used

1. Lance Banning, “James Madison and the Nationalists, 1780–1783,” William & Mary Quarterly, April 1983.
2. Edward S. Corwin, The President: Office and Powers, New York, 1957.
3. Thomas Y. Davies, “Correcting Search and Seizure History,” Mississippi Law Journal, vol. 77, 2007.
4. Jonathan Elliot, Debates in the State Conventions on the Adoption of the Federal Constitution, I, 1973 [1830]).
5. E. James Ferguson, “The Nationalists of 1781–1783 and the Economic Interpretation of the Constitution,” Journal of American History, September 1969.
6. E. James Ferguson, The Power of the Purse, Chapel Hill, N.C., 1961.
7. Paul Leicester Ford, ed., The Works of Thomas Jefferson, IV, New York, 1904.
8. Merrill Jensen, “The Idea of a National Government during the American Revolution,” Political Science Quarterly, September 1943.
9. Jesse Lienesch, “The Constitutional Tradition: History, Political Action, and Progress in American Political Thought, 1787–1793,” Journal of Politics, February 1980.
10. William Maclay, The Journal of William Maclay, United States Senator from Pennsylvania, 1789–1791, New York, 1965.
11. Roger McBride, Treaties versus the Constitution, New York, 1955.
12. John L. O’Sullivan, Union, Disunion, and Reunion: A Letter to General Franklin Pierce, London, 1862.
13. Jack N. Rakove, The Beginnings of National Politics, New York, 1979.
14. Murray Rothbard, Conceived in Liberty, IV, New Rochelle, N.Y., 1979.

Even so, the Constitution—read anywhere near its apparent intent—might be worth hanging onto; but how can we get such a reading? Enter a new crop of “conservative” legalists to offer us one under the rubric of “originalism.” 

For this crop of presidentialists, which includes John C. Yoo, Roger J. Delahunty, David Addington, Jay S. Bybee, and Attorney General Alberto Gonzales, originalism centers on the Unitary Executive Theory (UET)—a bizarre doctrine of presidential infallibility allegedly prefigured by Alexander Hamilton. Under the UET, America ‘s president is utterly sovereign in his sphere and sole judge of his own powers. 

The merest glance at America ‘s founding suggests that no one really wanted full-bore elective despotism. Nonetheless, American presidentialists apparently find just that in the terms “war powers” and “commander-in-chief,” and in presidential dominance of foreign affairs. Yet their forebear Hamilton conceded that in war the president has “nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the Confederacy” (Federalist 69). 

Presidentialists take John Marshall’s comment, in Congress, that the president is our “sole organ of communication” with other nations as entailing lots of power. And always, presidents assert powers and store up precedents. Presidentialists turn presidential duties, chores, and everyday practices into powers, and strong figures have built the office. In the Mexican War (1846–48), President James Polk established the practical precedent of maneuvering Congress into war. But it was Abraham Lincoln, above all, who asserted immeasurable war powers belonging (mostly) to the president, by combining the commander-in-chief clause with the president’s job of enforcing the laws. Of this, legal historian Raoul Berger writes in Executive Privilege: “[W]hen nothing is added to nothing the sum remains nothing.” But success succeeds, and later presidents— Richard Nixon and George W. Bush among them—have eagerly wrapped themselves in Lincoln ‘s mantle of effectively suspending the Constitution to save the country. 

After Lincoln, presidential war powers rested up until 1898, when President William McKinley wielded them overseas. (McKinley issued a virtual ultimatum to Spain over Cuba a month before Congress declared war.) Theodore Roosevelt thought he could do anything not prohibited, at home and abroad, thereby neatly reversing the premise on which the Constitution was sold. Woodrow Wilson, too, had large views, but in 1917–1918 amiably shared with Congress the power of treading liberty under foot (conscription, for example), albeit with no new doctrines, merely existing bad ones. 

Worse luck, in United States v. Curtiss-Wright Export Co. (1936), conservative Supreme Court Justice George Sutherland fancied that during our revolution, George III’s prerogative powers somehow lighted on the union, hovering, extra-constitutionally, above successive Congresses, descending finally on the presidency. Berger deconstructed Curtiss-Wright, underscoring the break with England and the resulting institutional discontinuity. Sutherland’s opinion stands, approvingly cited by UE theorists. 

As Berger notes, Sutherland championed “a theory of inherent presidential power over foreign relations.” Berger quotes Louis Henkin, who adds that Sutherland’s assertion “carves a broad exception in the historic conception . . . never questioned and explicitly reaffirmed in the Tenth Amendment, that the federal government is one of enumerated powers only.”

Presidential power made great strides under Franklin Roosevelt, before and during World War II. FDR’s domestic emergencies and his wartime operations added much to the office. The Cold War extended these power-accumulations into an indefinite and interesting future. 

The Supreme Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer (1952), during the Korean War, reflected existing realities. Briefly, President Harry Truman, citing war powers, seized the steel industry to end a strike. People across the political spectrum, from organized labor to Republican Senator Robert Taft, denounced the action. The Supreme Court dodged the issue, holding that presidential powers did not go quite as far as Truman thought. 

Bottomless Well of Power 

Presidentialists take “The executive power shall be vested” (Article II) for a bottomless well. They see the specific duties mentioned as additional grants of power open to further (perhaps tortured) interpretation. They find further “inherent powers” arising from international law and Marshall’s sole organhood, and read the oath—“faithfully execute the office” and “preserve, protect, and defend the Constitution”—as allowing the president to violate laws in defense of the Constitution. Yet the charge that the president “take care that the laws be faithfully executed”(Article II, Section 3) seems to prohibit such maneuvers, although presidents have bent the words to their purposes, as when Lincoln “combined” them with the commander-in-chief provision. 

Presidential lawyers aggregate or separate clauses to widen power. Political scientist Richard M. Pious writes in American Presidency that presidential lawyers, construing congressional powers strictly, view “all remaining functions, powers, and duties [as] exercised by the president under doctrines of inherent powers, resulting powers, sovereign powers, and inclusions”—along with emergency and national-security powers. Finally, presidents—as a branch of government—assert a right to interpret the Constitution. Pious shows minimal respect for these notions, commenting that recent, barely elected presidents have felt a need to exploit their “legal” opportunities.

From 1947 on, anticommunist crusading fostered right-wing presidentialism. Meanwhile, on other issues the Supreme Court provoked a reaction toward strict construction. Since that was quite incompatible with Cold War policies, something had to give; when it did, right-wing presidentialists hijacked strict construction, reinventing it as absolutist originalism. Midway through this journey, Richard Nixon’s cries of “national security”—to becloud the Watergate affair—rang like a fire bell in the day. 

In his online paper “Rethinking Presidential Power—The Unitary Executive and the George W. Bush Presidency,” political scientist Christopher S. Kelley writes that, frustrated by ongoing congressional “aggression” against executive power—the War Powers Act of 1973 and congressional “interference” with federal bureaucracies—lawyers in the Justice Department’s Office of Legal Counsel cobbled UE theory together in the 1980s. During war—as everyone “knows”—the feds may freeze the Bill of Rights, provided they thaw it out later. What seems new in UE theory is the assertion that the president is sole judge of his powers, with Congress and courts excluded from inquiring into executive undertakings. (Nixon claimed to be sole judge of executive privilege.) This would seem a recipe for tyranny. 

UE theorists speak of constitutional text, structure, and history; but their postmodern textual maneuvers, their homemade structures, and their lawyer’s history live on the edge of sudden implosion. In a 2003 paper, “Judicial Review and the War on Terrorism,” John Yoo, who had worked in the Bush 43 Office of Legal Counsel, asserted that while the judicial process exists for issues involving federalism, none exists for issues arising from war. He thereby nodded toward UE theorists’ oft-professed belief in states’ rights while separating all such “domestic” matters from important presidential activities. Yoo praised “the war powers system we have today in which the President initiates war, Congress funds it, and the courts remain aloof.” Further, the president may designate citizens as enemies, with no further proof or process needed.

Elsewhere, in “The President’s Constitutional Authority to Conduct Military Operations against Terrorist Organizations and the Nations that Harbor or Support Them,” Yoo and Roger Delahunty examine Article II of the Constitution where they see the mere words “the executive power shall be vested in a President”—the high-toned “Vesting Clause”—as unveiling a mighty fortress: “The executive power” (my emphasis). The authors assign the president “all of the executive power” and “full control“ of the military, adducing his power to “repel sudden attacks,” commending his “speed and energy.” Predictably, they hold that Congress has only powers “herein granted” and “enumerated,” while the president has “all other unenumerated powers.” Backed by “historical practice” and “precedent,” “the President alone” decides war and peace. This is textualism? 

The shades of Wilson, FDR, and Truman must be smiling. Few non-White House supremacists would read texts so liberally. A whole generation of conservative constitutionalists now surpasses Earl Warren in creative writing. Some conservatives foment empire, militarism, surveillance, and presidential hubris through their own juridical and judicial activism. 

Such are the raw materials of UET, but there are a few more points of interest. 

Unenumerated Powers Don’t Exist 

1. Presidents reach for “all other unenumerated powers”; but by a well-known canon of construction, powers not enumerated are not “granted” and do not exist. The claim assumes the very thing to be proven. In Executive Privilege, Berger writes that, “lacking an ‘enumerated’ power, action is illegal” and observes that “faithfully executed” implies presidential accountability to Congress. Further, “executive privilege” (withholding information) asserts a power the King had already lost. He adds that “the Framers vested many prerogatives of the Crown in Congress and denied them to the President.”Berger remarks on the “meager scope” of the presidency’s projected powers: “The words ‘executive power’ were thus no more than a label designed to differentiate presidential from legislative functions, and to describe the powers thereafter conferred and enumerated. To derive additional authority from this descriptive label is to pervert the design of the Framers. . . .” Further: “Madison and [James] Wilson stated that the rights of ‘war and peace,’ enjoyed by the King, were not included in the ‘executive powers.’ Patently, the Framers were determined to cut all roots of the executive power in the royal prerogative.” Absent royal prerogative, the U.S. president would seem to be constitutionally impotent as far as finding and beginning his own wars goes. Practical politics made the office what it is today. In An Inquiry into the Principles and Policy of the Government of the United States (1814), John Taylor of Caroline, a serious strict constructionist, characterized the presidency as driving us toward “force and fraud” and “monarchy, revolution, and an iron government.” Election was an insufficient guard; for this reason the states put their executives under severe restrictions.
2. Presidential lawyers dig out generalities about emergencies from Hamilton ‘s Federalist essays but little on who holds the emergency powers. Is it Congress? As an executive officer under George Washington, Hamilton “discovered” what prerogative powers he could, and presidentialists get more mileage from this Hamilton. Given two Hamiltons, his arguments are somewhat suspect. (On prerogative powers in the Constitution, present or absent, see Forrest McDonald’s Novus Ordo Seclorum: The Intellectual Origins of the Constitution.) 
   

   Precedent Yields No Right  

3. UE theorists dwell on text, practice, and precedent. But whether successful usurpations—some large, some microscopic—amend the Constitution is not proven. Presidents have gotten away with things. As Berger points out, presidential stonewalling, which Congress has resisted for two centuries, yields no “right” of executive privilege. Yet much rests on the larger implications of executive privilege where successfully asserted. In Construction Construed and Constitutions Vindicated (1820), Taylor noted that the Stuarts collected precedents “because, successive encroachments terminate in conquest.” Moreover: “precedents, both good and bad, ought to have weight. . . . But discrimination is as applicable to precedents, as to any other species of evidence . . . [and] no improvement in civil government has ever been made, or can be preserved, but by a subversion of precedents, until a form is discovered incapable of corruption.”
4. UE theorists make much of the president’s job of repelling invasions of American soil. That this seldom happens is, for them, beside the point. Two much-mooted cases—Pearl Harbor and 9/11—drew forth no repelling. In 1846 President Polk was not repelling but was instead provoking. Nor was the Confederate attack on Fort Sumter, after months of talk, sudden, unexpected, or repelled. Given time, advocates might find some repelling, and so what? If the president failed to repel, defenders would still defend. Where is the mighty grant of “executive power”? Presidentialists hope to convince us that should a president ever defend American soil, he would be “making war,” thereby proving—apparently—that he may make war anywhere, anytime, at will. In “Emergency Powers and the Militia Acts,” legal scholar Stephen I. Vladeck does not concede a presidential power of repelling. Instead, such actions have rested on the Militia Acts of 1792, 1795, and 1807, and their successors, that is, on delegation by Congress. This greatly reduces what presidents can reasonably obtain from repelling. Indeed, they just break even with the states, which may “engage in war” when actually invaded. 
5. For UE theory, “separation of powers” works overtime, albeit rather cynically. Berger writes: “the separation of powers does not create or grant power; it only protects powers conferred by the Constitution. . . . [T]o argue from the bare fact of a tripartite system of government, without preliminary inquiry into the scope of each of the three powers, is like invoking the magic of numerology.”In any case, classic separation took “checks and balances” rather seriously. But if the president has his own sovereign sphere, how is he checked—or balanced.This brings us to John Taylor’s attack on “spherical sovereignty” in Construction Construed. (All emphasis has been added.) In McCulloch v. Maryland (1819), Chief Justice John Marshall sustained the supremacy of Congress in its sphere of action. Taylor agreed that “‘sphere’ conveys an idea of something limited,” but wondered “how this word . . . can be converted into a substantive uncircumscribed, by the help of the adjective ‘sovereign.’” He continues: “If the sovereignty of the spheres means any sovereignty at all, it supersedes the sovereignty of the people. . . .”Now Taylor is not objecting to spheres, but to sovereignty anywhere, since American principles demand actual delegation by real principals to real (and mere) agents. No one has “inherent” powers. 

   Taylor continues: “There is no phrase in the constitution which even insinuates, that the actual divisions of power should be altered or impaired by incidental or implied powers.” Further: “Individual spheres or departments are easily persuaded, like Kings, that a subordination to themselves would be better for a nation, than the occasional collisions produced by a division and limitation of power.” And here was the danger: “A jurisdiction, limited by its own will, is an unlimited jurisdiction.” 

   Taylor thought “occasional collisions” better than sovereign institutions. Rather than making Congress, executive, or court supreme in some realm, the Constitution created “co-ordinate political departments, intended as checks upon each other, only invested with defined and limited powers, and subjected to the sovereignty . . . of the people. . . . ”

   The Court’s new-fangled “spherical sovereignty” overthrew the division of powers: “A supreme power able to abolish collisions, is also able to abolish checks, and there can be no checks without collisions.” In America we “have preferred checks and collisions, to a dictatorship of one department. . . .” Under “the concurrent power of taxation,” Congress and the states “may each pass a law, both of which may be constitutional, and yet these laws may clash with, or impede each other. . . . For this clashing the constitution makes no provision.”

   According to Taylor , the Court was unearthing prerogative powers for Congress, including one to “remove all obstacles to its action.” Marshall sought “to unite an extension of power with an apparent adherence to the words of the constitution.” Under this dodge, “it was necessary to hook every implied, to some delegated power. . . .” This is still the practice of a continental state that micromanages the life-world under color of regulating commerce and passes worldwide military empire off as “defense.” 

   On Taylor ‘s reading, no branch derives sovereign powers from idealized separateness. Powers, where they exist, were delegated by living Americans, not by some cloud-borne eighteenth-century paragraphs “mediating” sovereignty to federal departments. 

6. UET’s “flexible system for going to war” (Yoo’s words) seems better fitted for finding and having wars than for actual defense of American soil. Here, where sovereignty and war powers conjure and conspire, UE theorists build on Marshall ‘s gutting of enumerated powers and Sutherland’s “inherent” prerogatives; but Taylor whipped them before they were born, even on war powers: 
   

   . . . [T]he case of war is specially provided for by the federal constitution, because the federal government, as having no sovereignty, could not other wise have declared it. . . . As the powers of making war and peace were necessary, it became necessary also to provide for them, not as emanations from the principle of a sovereignty in governments, but as delegated powers.. .. No powers in relation to war are derived from . . . sovereignty in governments under our system; and none can be justly inferred from the conclusions of the writers upon the laws of nations. . . .”[Emphasis supplied.]

   Presidential “signing statements,” grounded in UET, proclaim a departmental “reading” of what the president is signing into “law.” Unwilling to veto, President Bush says he will enforce the law (or not) as he sees fit. The attempt came before the name. In President: The Office and Powers, constitutional scholar Edward S. Corwin wrote of its having been undertaken in 1946–1947: “For a court to vary its interpretation of an act of Congress in deference to something said by the President at the time of signing would be . . . to endow him with a legislative power not shared by Congress.”

   Signing statements aim at influencing gullible jurists and, ultimately, at excluding the courts from even their normally feckless protection of liberty during alleged wars. (On this, see Richard E. Eliel’s “Freedom of Speech,” American Political Science Review, November 1924.)

Sovereignty, Unknown Powers, Strict Construction 

If we forsake “originalism,” as we probably should, we need not give up strict construction. Any serious perspective must begin with contemporary comparisons of the Constitution as advertised with the Constitution as put into practice. Taylor, Spencer Roane, and others heard certain promises in the ratifying conventions and saw them broken once the promising parties were in office. Their critique rose from an unavoidable contrast. (For how quickly the Federalists’ real program emerged, see The Journal of William Maclay, U.S. senator from Pennsylvania , 1789–91, available online and in book form.)

In Construction Construed, Taylor went to the fundamentals. He began with “powers of sovereignty and supremacy [that] may be relished, because they tickle the mind with hopes and fears. . . .” Yet “the term ‘sovereignty,’ was sacrilegiously stolen from the attributes of God, and impiously assumed by Kings . . . [and] aristocracies and republicks have claimed the spoil.” In any case, the “idea of investing servants with sovereignty, and that of investing ourselves with a sovereignty over other nations, were equally preposterous.” (Now, of course, we do both.)

“Sovereignty” was “neither fiduciary nor capable of limitation.” In America, we “eradicate[d] it by establishing governments invested with specified and limited powers,” under which “the people or the states retain all the powers they have not bestowed . . . [and] ungranted rights remain also with the grantors . . . the people.” This canon of constitutional interpretation, by which powers “not granted” are seen as not granted—hence nonexistent—failed to impress Marshall and others. With more experience of the Constitution, we might judge Marshall wrong.

Taylor declined to see the words “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States”( Article I, Section 8, 18) as a charter of unknown powers; Marshall, however, saw “necessary and proper” as licensing numberless convenient and apposite means, and alongside spherical sovereignty, this was his key innovation.

Lacking certain desired powers, Congress could not simply grasp them by calling them means “necessary and proper” for fulfilling actually enumerated powers. Before the Revolution, Taylor noted in Construction Construed, Parliament contended for unlimited means of war: “The colonies replied, that it would be more absurd to limit powers, and yet concede unlimited means for their execution . . . .” Marshall ‘s repositioning of “means” undid the whole idea of enumeration. Taylor wrote: “As ends may be made to beget means, so means may be made to beget ends, until the co-habitation shall rear a progeny of unconstitutional bastards.”

Later court decisions have awarded the president the same “necessary and proper” latitude that it earlier gave Congress. The process is cumulative, but if the doctrine was unsound when aiding Congress, it remains so when fattening the executive.

Marshall undermined American political reasoning, said Taylor , “by inferring the powers of sovereignty from a delegated power; as the power of establishing banks, from the power of taxation . . . .” But reasoning from international law to American government was a mistake. Where foreign threats existed, “the constitution . . . disregarding . . . the laws of nations, assigns the power . . . to a department [Congress], not as being sovereign, but as being a trustee . . . [which] alone possesses a right to involve the United States in war; and no other department, nor any individual, has a better right to do so, than a constable has to bring the same calamity upon England. As the laws of nations cannot deprive congress of any power . . . so they cannot invest congress or any other department, with any power not bestowed by the constitution. . . . [Those laws] contemplate the powers of declaring war and making peace, as residing in an executive department; but the constitution divides them, and does not intrust the president with either” (emphasis supplied).

Contesting institutional sovereignty derived from international law, Taylor aimed right at UET theorists’ favorite things: the war powers and their location in the system.

Can Amendment Rid Us of This Turbulent Office? 

Taylor ‘s point is, very simply, that if the government has some general “sovereignty,” then it, or some branch of it, is the final judge of its actions. If the government is not sovereign, then the unknowably vast powers for war, emergencies, and so on must remain with the people, as individuals, families, or communities—a disturbing thought, even for believers in such powers. Such a theoretical placement might lead to individual civil disobedience and nullification by communities. Short of such drastic experiments, are there any constitutional cures for unitary-executive disease? Perhaps so. This brings us to our only remaining article of faith, the amending power. 

Talk about unknown powers! We seem entirely free to abolish the executive in all its unitarity. Amendment, however, would require a train of disasters irrefutably stemming from that office. We have the disasters; the historical dice have been cast, but where will they land? 

Meanwhile, on June 29, 2006, the Supreme Court said a few words on our subject, putting a serious dent in UE theory (Hamdan v. Rumsfeld, Secretary of Defense, et al.). According to the majority, the president cannot just set up his own courts with their own procedures tailor-made for producing convictions, even against “unlawful combatants.” If, however, these so-called courts should conform to existing legislation (Uniform Code of Military Justice and such) becoming thereby more court-like, they might pass muster. 

On larger questions, the decision moves us back, at best, toward the inconclusive and subjective language of Youngstown Sheet & Tube Co., which, as noted, stated that presidents have large war powers but that Truman had overreached them. The courts, having long ago justified the deeds of Lincoln and others, can only go so far. But the decision is better than nothing, and has forced Congress, though the Military Commissions Act, to sustain the President by legislation. This has partially restored the logic of the system without, however, doing much for our liberties or for U.S. conformity with international law. 

And on August 17, Judge Anna Diggs Taylor of the federal district court in southern Michigan struck another blow against UET. In ACLU v. NSA, she found the Bush administration’s presidentially initiated NSA surveillance program illegal. The ruling denies that “inherent” presidential powers exist outside the constitution. 

This is good, but we shall be waiting to see how the administration gets around it.

That brief phrase seems to have vanished from the national memory in the wake of the atrocities of September 11. If the terrorists really intended to assault the American tradition of freedom under law, score one for the terrorists.

Instead of a declaration of war, Congress passed this resolution: “The president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” (Emphasis added.)

That is not a declaration of war. It’s a grant of Caesarian power. Indeed, when the Senate majority leader was asked if the President would need congressional authorization to attack Iraq after Afghanistan, he replied, “No, he certainly wouldn’t have to clear it with us. He’s an independent branch of government.”

Alexander Hamilton wrote in Federalist No. 69 that “The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.” (Italics added.)

The framers had good reason to separate the dangerous power to declare (and finance) war from the power to command the armed forces. As James Madison explained in Federalist No. 47: “The accumulation of all powers, legislative, executive, and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” He quoted Montesquieu: “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.”

Although the constitutional delegation of the war power has not been respected since 1941, devotees of freedom under law should be alarmed nonetheless. Unfortunately, Madison was right when he wrote in Federalist No. 48, “[A] mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”

* * *

If your intention is to be safe at all costs you’re apt to miss out on some important things in life. So writes Ted Roberts.

Government controls on immigration are restrictions on the movement of people. Thus, Ken Schoolland writes, they share something with earlier restrictions on how and where people could live their lives.

If you like what federal standards have done for your toilets, just wait until you see what the government has in mind for your washing machines. Thanks to Michael Heberling, you don’t have to wait to find out.

Imagine a herd of dinosaurs trying politically to set up a retirement system. Tom Siems has an idea what it would be like.

The conventional wisdom has it that the government’s schools would be better if only more money were spent to hire more teachers and reduce class sizes. E. Frank Stephenson analyzes the proposal and finds it wanting.

A funny thing seemed to happen to economist Paul Krugman on his way to debunking the Mises-Hayek theory of the business cycle, write Roger Garrison and Gene Callahan. He implicitly embraced it.

Scratch an opponent of free trade and you may find an opponent of society itself. Barry Loberfeld has come across some examples.

When critics of capitalism begin with the premise that investors aren’t rational, their statist conclusions are likely to be gross non sequiturs. Tibor Machan shows why.

Like the old joke, much of modern economics is built on wildly unrealistic assumptions. Virtually the only exception is Austrian economics, writes D. W. MacKenzie.

Who was it who said that local government is less a threat to liberty than the national government? Scott McPherson knows otherwise.

Unfortunately, the U.S. Constitution permits the government to take private property from its owner. But it may do so only for “public use” and with “just compensation.” As Timothy Sandefur explains, here’s another constitutional provision that’s increasingly breached.

Our columnists have been hard at work looking for interesting topics. President Mark Skousen sings the praises of leisure. Lawrence Reed finds a certain think tank unthinkable. Doug Bandow wonders what’s secure about Social Security. Thomas Szasz ponders the distinction between prisoner and mental patient. Dwight Lee celebrates diversity. Donald Boudreaux asks some tough questions in the wake of September 11. Walter Williams takes up the sensitive matter of voter qualifications. And Aeon Skoble, confronted with the claim that markets undermine communities, says, “It Just Ain’t So!”

Our reviewers assay books on property rights in the developing world, the politicization of public health, Julian Simon’s view of the world, the Constitution under the New Deal, egalitarianism, and the history of economic thought.

—SHELDON RICHMAN

The United States has no vital interests at stake in Yugoslavia; the conflict there is the kind of European war that Americans should avoid if we follow the advice of the early American presidents, beginning with George Washington in his famous Farewell Address. The situation in Yugoslavia has been ably summarized by journalist Philip Terzian: “We are bombing a sovereign nation, not a member of NATO, which is not disturbing its neighbors but seeking, instead, to prevent one of its provinces from seceding. Bear in mind that the United States fought a bloody, four-year civil war, on the issue of secession (we’re against it) and that NATO, in its action against the Serbs, now proposes to invade a European state—in the Balkans, no less—to resolve an internal ethnic dispute. For the first time since 1945, the German air force is in action against another European country. And everyone agrees that air assaults are not conclusive. In order to achieve what we want, it might well be necessary to introduce ground troops.”

The Clinton administration’s decision to bomb Yugoslavia, under the rubric of NATO, is an incredible foreign policy blunder. Not only is the situation there none of the United States’ business, but our participation in the NATO bombings also threatens to destabilize eastern Europe far more than anything done by Slobodan Milosevic’s government. (Indeed, it can be argued that the bombing of Kosovo worsened the so-called “ethnic cleansing” and other atrocities being committed by Serbian or Yugoslav forces in that province.) Critics of the United States and of the West generally can point to the bombings as clear evidence of Western “imperialism.” Undoubtedly, many communists and other leftists in the new NATO member nations of Poland, Hungary, and the Czech Republic are doing just that—possibly setting back for decades whatever progress in foreign relations the United States has made in eastern Europe since the fall of the Soviet Union.

Regardless of the outcome of the war itself politically—whether it will bring about the demise of Slobodan Milosevic, and at what price—the lasting importance of the war to Americans will be its significance constitutionally. What it reveals is that the actual balance of power in matters of foreign policy has shifted decisively toward the President, and that Congress has failed utterly to function as the institution the Framers of the Constitution intended it to be. What that signifies, in terms of the concentration of unchecked power in the White House, should be a matter of profound concern to all Americans.

The Wisdom of the Framers

The Framers of the Constitution gave the power to declare war to Congress, and not to the President, because they recognized that the people have a vital stake in war: it involves the expenditure of American tax dollars as well as the loss of American lives. For that reason, Congress must be involved in making the initial decision to commit American forces abroad. As James Madison explained in 1793, the momentous questions of war and peace properly belong to the legislature, where they can be publicly debated by the people’s representatives.

The decision to declare war—that is to say, the decision to initiate the use of force aggressively and not in self-defense—is a decision that only the Congress can make. The debate over war—indeed, the debate not only over strategy (war versus economic sanctions) but also whether any American intervention is justified, as a matter of policy—should have taken place publicly in both houses of Congress, not in the Oval Office among a clique of presidential advisers. By committing the United States to a course that led inevitably to war without the explicit authorization of Congress, President Clinton committed an act that violates the Constitution.

Congress’s exclusive power to declare war under Article I, Section 8, is not the only provision of the Constitution violated by Bill Clinton’s war in Yugoslavia. Arguably, the Yugoslav war also violates the first clause of Article I, Section 8, which limits Congress’s taxing power—and hence, the U.S. government’s spending power—to matters that concern “the common Defence and general Welfare of the United States.” Nothing in the Constitution authorizes the President, even with Congress’s consent, to use the military forces of the United States not for national defense, but for offensive military actions in Europe—in effect to transform the U.S. military into a kind of Peace Corps with guns. Moreover, Article II, Section 2, provides, “The President shall be Commander in Chief of the Army and Navy of the United States.” By committing U.S. troops to a NATO operation, under NATO command (whether or not the NATO commander is an American), Clinton has abdicated his legitimate power as commander-in-chief (the power to actually wage war) in the name of asserting a fictitious power as commander-in-chief (the power to enter into war) that in fact usurps Congress’s legitimate authority.

Some legal scholars have advanced the extraordinary argument that Congress has neither a constitutional obligation nor a right to declare war before the United States joins in a “police action” sanctioned by either the United Nations or NATO. They argue that U.S. ratification of the U.N. Charter and of the North Atlantic Treaty after World War II made us part of a “new world order” in which member nations can no longer “make war,” in the classic sense. The implication of this argument is that the Article I, Section 8, grant of the war-making power to Congress has been rendered obsolete since 1945. Even with concurrence of the Senate, however, the President cannot amend the Constitution; only the people can do that, according to the amendment procedures prescribed by the Constitution itself. Until that happens, the Constitution binds all the branches of government, especially the President, who has no higher obligation than his duty to adhere to the oath he swore, to “preserve, protect, and defend” the Constitution.

Charter Violations

NATO’s attack on Yugoslavia, moreover, violates both the United Nations Charter and NATO’s basic charter, the North Atlantic Treaty. Article 2(4) of the U.N. Charter requires that members “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” Similarly, Article 2(3) states, “Members shall settle their international disputes by peaceful means.” No matter how great a thug Slobodan Milosevic may be—no matter what atrocities the Serbians commit in Kosovo—no member of the United Nations has a right, under the U.N. Charter, to initiate the use of force against Yugoslavia. Article 51 of the Charter does recognize the “inherent right of individual or collective self-defense” for all members, but the bombing of Belgrade is not self-defense; it is an act of aggression. Similarly, Article 5 of the North Atlantic Treaty contemplates use of military power only defensively, not offensively; it provides, “an armed attack on one or more [members] . . . shall be considered an attack against them all,” clearly a defensive provision. Needless to say, Yugoslavia has not attacked any NATO member.

NATO was created for the purposes of mutual defense (by the United States and western European nations) against a hostile Soviet Union. With the Soviet Union no longer existing, one might ask whether NATO itself is today obsolete. Even if we assume that Russia poses a great threat, NATO’s legitimacy still rests on its fundamental purpose as a defensive alliance. Nothing in NATO’s charter allows it to become a general European police force, which is what it has now become.

Advocates of presidential war power (whether defending George Bush’s war in the Persian Gulf or the various actions in which Bill Clinton has committed U.S. military forces in such places as Haiti, Bosnia, and now Kosovo) also have asserted that the need for an international consensus prior to a NATO- or U.N.-sanctioned “police action” provides a sufficient check on presidential power. The validity of that argument, however, is belied by these presidential military actions themselves. It is not surprising that both Presidents Bush and Clinton bypassed Congress and the American people, choosing instead to first assemble international support. Of course other nations will approve “police actions” staffed almost entirely by U.S. troops and funded almost entirely by U.S. taxpayers. To be effective, the check on presidential powers must be given to Congress because Congress is directly representative of the American people, who must pay for these “police actions” with their taxes and their blood. International politics cannot adequately substitute for the checks and balances of the Constitution.

The Framers of the Constitution carefully devised a scheme of separation of powers and checks and balances to minimize the dangers of concentrating too much power in the hands of any one person, or group of persons. They would be appalled at the resolutions in Congress expressing unqualified support of the president in whatever actions he should decide to take—resolutions that reveal the degree to which Congress has failed to fulfill its constitutional obligation to act as a check on presidential power. Nothing could be farther from the intent of the Framers. As Thomas Jefferson explained it in 1798, “Free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power. . . . In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”

The Other Costs of War

American involvement in war is too important a matter to be left to the private deliberations of the president and a small group of advisers. Surely the lives of tens of thousands of Americans lost in Korea and Vietnam—wars in which other presidents unilaterally embroiled the country—bear eloquent witness to the other, noneconomic costs of war. Just as surely, the domestic turmoil that resulted from those conflicts, particularly Vietnam, illustrates the danger of presidents’ making commitments that the American people do not wholeheartedly support.

Bill Clinton and his apologists (who include many conservatives as well as so-called “liberals”) defend U.S. involvement in Yugoslavia with the argument that the United States, as the world’s only superpower, has a duty to use its military force for “humanitarian” purposes. The argument assumes that Americans should take the responsibility for the world’s troubles simply because their country is a superpower. But the United States is a superpower—and, indeed, also is the world’s richest nation—because its legal and constitutional system more fully protects free-market capitalism and the rights of the individual than any other system anywhere in the world. Americans should not feel guilty about their wealth or power; they’ve earned it. And simply being successful does not make a nation responsible for the problems of other nations, just as being successful as an individual does not make one responsible for the problems of other individuals. The fundamental rules of morality apply equally to nation-states as to individuals; and the basic rule of morality—the only rule of morality based on reason rather than emotion or mysticism—is the precept “do no harm to others.” Rather than following that basic rule of good behavior (for nation-states as well as for individuals), Bill Clinton has led the United States into acts of aggression that violate the principle. And our so-called “humanitarian” effort—like similar assumed “humanitarian” policies domestically—is in fact exacerbating the problem, for the NATO bombing compounds the atrocities being committed on the people of Kosovo.

Altruism Makes Bad Policy

Morally, the essential flaw in Clinton’s war on Yugoslavia is the principle of altruism that underlies it. By “altruism,” I mean the moral code that asserts that people should sacrifice their own happiness or well-being to the happiness or well-being of others; the moral code that preaches that self-interest is bad but that self-sacrifice is noble, that the proper ethical posture of human beings is that of sacrificial animals to the supposed “good” of society, or some other collective. This moral code of altruism is a very old, traditional moral code that has been responsible for virtually all the evil, all the suffering, that has occurred throughout human history. It is the same moral code that underlies the atrocities being committed in Kosovo itself, where people on both sides of the ethnic conflict (Serbian and Albanian alike) ignore the rights of individuals and instead regard people as significant only as members of a collective (in this case, an ethnic group).

Tyrants throughout human history have justified their tyranny by appealing to some form of collectivism. The pharaohs of ancient Egypt, the emperors of Imperial Rome, and the kings of medieval Europe all called upon their people to sacrifice their individual well-being to that of the collective; and their accomplices were the priests, who appealed to superstition and mysticism—the supposed will of the one or more gods—to convince the people that it was a “sin” not to sacrifice their well-being to the thugs who ran the government.

In more recent times, totalitarian dictators on both the “left” and “right”—Lenin, Stalin, and Mao, as well as Hitler, Mussolini, and Perón—similarly have preached that the individual is nothing, that the collective is everything. They too have been supported by priests of sorts, namely, so-called “intellectuals” who preach either a sectarian or secular form of civic religion that also condemns as sinful the individual’s pursuit of his own happiness or self-interest and extol a “duty” to serve the state. As F. A. Hayek has shown, “the road to serfdom” has taken many paths in the twentieth century. The call for “national service” that Bill Clinton and like-minded collectivists (again, both on the left and the right) made at the President’s Conference on America’s Future in April 1997 differs from the philosophy of other twentieth-century totalitarians only in degree, not in kind.

The principle of altruism makes bad policy, whether in domestic law or in foreign relations. In domestic law, it has made possible the welfare state and all the problems associated with it—not only economically but socially and morally—as David Kelley ably shows in his excellent new book, A Life of One’s Own. In foreign relations, it has made possible a series of wars in the twentieth century, beginning with World War I (and Woodrow Wilson’s campaign to “make the world safe for democracy”), in which young Americans were told it was their duty to sacrifice their lives not for their own country’s freedom or security, but for some fancy of the foreign-policy wonks who advise the President. It’s time that those of us who truly “support our troops”—those of us who believe that the lives of young Americans are too precious to waste on the follies of presidential advisers—show our support for them by calling for the immediate end of this immoral and unconstitutional war.