July 31, 2005 | Washington Examiner

Constitution Confustion

President George W. Bush is the latest in a long line of American Caesars who have shredded the foundations of the Republic in an often racist and always imperialistic lust for territory, treasure and, of course, oil.

Such is the lunatic left's version of American History 101, and its most up-to-date text is “War Powers: How the Imperial Presidency Hijacked the Constitution,” a truly bad book by Peter Irons of the University of California at San Diego.

Irons' thesis is as simple as it is unsound: Only Congress – and not the president – has the power to make war and most of the wars fought since the nation's founding have been unconstitutional.

This is a theory fit for the fevered imagination of U.S. Rep. John Conyers, D-Mich., who was last seen trying to impeach Bush over the Iraq war. It should therefore come as no surprise that Irons actually dedicates “War Powers” to Conyers. Built upon a selective mining of the Federalist Papers and James Madison's notes, the book claims that the whole of the war power envisioned by the framers resides in the Congress by virtue of the Article I power to declare war.

Unfortunately for Irons, there's that little business in Article II about how “The president shall be commander in chief of the Army and Navy of the United States.” Its importance is so obvious Irons can't just ignore it. But he tries hard to make it go away, proclaiming it to be a “titular” designation – a source of power that lies dormant unless and until Congress triggers it by authorizing hostilities.

This ludicrous theory cannot even withstand scrutiny of the sources Irons offers to support it. At the drafting stage, for example, the text of Article I was altered from an original warrant empowering Congress to “make” war to one merely providing the power to “declare” it.

It was the president who would actually wage war. Irons treats this important change as an afterthought meant to enable the president to repel an invasion but not to commit troops outside the United States. But this would render the nation vulnerable to ruinous attack, forcing it to wait out, for example, a mass-destruction first strike before responding.

The framers had no intention of hamstringing the nation, or its president, in such a fashion. Thus Hamilton wrote – in a passage of Federalist No. 74 that Irons chooses to ignore – that “[t]he direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part of the executive authority.”

To be sure, Congress was given important checks. Only it may put the nation on total war footing and the president needs its financial support to carry out military action. But the legislative process is a lumbering one – and it was even more so at the time of the founding when lawmakers returned from their summer recesses by horse rather than jumbo jet. The framers fully recognized that the protection of the new nation hinged on energy in the executive.

Yet Irons is determined to climb to the top of the rickety intellectual foundation he has constructed. He argues that Congress must approve all foreign military excursions in advance. Any conflict whose course strays beyond a legislative license also violates the Constitution, even if its purpose is to quash an imminent national security threat. It takes a head-in-the-clouds professor like Irons to disregard one of the Karl von Clausewitz's famous adages: No battle plan survives first contact with the enemy. The same goes for carefully worded congressional authorizations.

All of this leads inevitably to the second major theme of “War Powers”: American history is pockmarked with illegal adventures, thanks to a rogues' gallery that includes such presidential imperialists as James Polk, Abraham Lincoln, both Roosevelts, Lyndon Johnson and both Bushes. In his role as prosecutor, Irons issues a series of familiar complaints. The United States was not really attacked by Mexico in 1846; rather, Polk diabolically “goaded” the Mexicans into an attack as part of the master plan to seize California and the desert Southwest. The Spanish-American War of 1898 was a land-grabbing hoax because the USS Maine was not really blown up by a Spanish mine but by an internal explosion. The 1964 attacks on U.S. naval vessels that justified the Tonkin Gulf Resolution, which expanded the Vietnam War, “probably never happened.”

Finally – and with utter predictability – Irons says that a neoconservative cabal obsessed with Middle Eastern oil reserves made deceptive claims about Saddam Hussein's arsenal and terror ties as a pretext to invade Iraq. That the United States somehow neglected to annex the whole of Mexico, Cuba and Indochina; that it promptly returned sovereignty to Iraq while seeking to sow democracy and withdraw its forces; such things never seem to compute in the Irons narrative.

Equally curious is Irons' take on the Supreme Court. He regards it as designed to arbitrate disputes between the political branches, a notion for which there is scant support. Irons not only would thrust it into this role but also confer upon it the ultimate war power – the authority for which it is least equipped – by giving the justices the final word on presidential military decisions.

Thus does Irons laud the Taney Court's post-Civil War decisions in the areas of habeas corpus and military tribunals as admirable reversals of Lincoln's excesses, even though it was that very court's own despicable excess in voiding the Missouri Compromise (in Taney's Dred Scott decision) that fomented the war in the first place. And, true to form, Irons applauds the court's stunning ruling last year to permit alien terrorists captured on overseas battlefields while fighting American troops to use the U.S. courts to challenge their wartime detention – a decision Irons erroneously traces to the Fifth Amendment's due process clause, though the court acknowledged that its holding was not mandated by the Constitution.

The Constitution hasn't been “hijacked.” But it has been warped – by left-wing academics like Irons.

Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.