The Framers’ why: Rejecting presidential control of warmaking and foreign affairs
The Trump administration’s inability to identify persuasive legal footing for Donald Trump’s unilateral decision to bomb Iran, whether on the originalist premises that his camp prefers, or others that may be ginned up, reveals the depths of his unconstitutional action, another piece of his consistent pattern of usurping congressional powers.
Presidential aggrandizement of the war power – the authority to initiate war and lesser military hostilities – which the Framers granted solely and exclusively to Congress because they feared the possibility, as James Wilson explained, of “one man” taking the nation to war for arbitrary reasons, an offense at the very top of the hierarchy of impeachable offenses, however improbable the exercise of that power might be.
The current situation represents a teaching moment, an opportunity for the citizenry to better understand the constitutional arrangement for warmaking and national security, before being plunged into a world of unforeseeable twists and turns that is the very essence of warfare. An overview of the conclusions of the Constitutional Convention will lay bare the “Framers’ Why,” their rationale for vesting in Congress the lion’s share of the nation’s foreign policy and national security powers.
Few issues rivaled in importance the maintenance of national security and foreign affairs. The search for an efficient foreign policy design was a primary goal and animating purpose of the Convention. The Framers might have adopted the English model, which, like other nations at the time, concentrated virtually unlimited authority over foreign affairs, including the power of war and peace, in the hands of the executive. But they rejected that approach because, as Wilson explained, the prerogatives of the Crown were ill-suited to the aims and purposes of a republic.
The Framers’ emphatic rejection of presidential control of warmaking and foreign relations was rooted in a deep aversion to an unrestrained, unilateral executive power and a commitment to the cardinal principle of republicanism: collective decision-making, grounded in the belief that the conjoined wisdom of the many is superior to that of one. The Framers perceived a broad equatorial divide between the hemispheres of monarchism and republicanism, between the values of the Old World and the New World.
The Convention’s deliberate fragmentation of powers relating to diplomacy, treaties, and war and peace, and the allocation of the various foreign affairs powers to different departments of government, reflected the Framers’ determination to apply the doctrines of separation of powers and checks and balances, the principle of the rule of law and the elements of constitutionalism to the realm of foreign relations as rigorously as they had been applied to the domestic domain.
This critical decision represented a bold departure from the prevailing wisdom of the day, which urged the unification and centralization of foreign relations powers in the executive, and warned that the separation of those powers would invite chaos, disorder and even disaster. However, the Framers brought a fresh outlook, a new vision that recognized that the conduct of foreign affairs includes some elements that are primarily legislative in nature, others that are essentially executive, and still others characteristically judicial.
In Federalist No. 47, Madison observed that “treaties with foreign sovereigns” assume, once they are made, “the force of legislative acts.” The Constitution characterizes the power to declare war as legislative and the power to conduct it as executive. The Supremacy Clause imposes upon judges the duty to enforce treaties as the law of the land. The Constitutional Convention discarded the British model – the executive model – as obsolete and inapplicable to the republican manners of the United States.
The purpose of this new constitutional arrangement for foreign affairs, a distinctively American contribution to politics and political science, was to require and implement collective decision-making – joint participation, consultation and concurrence – by the political branches in the formulation, conduct and management of the nation’s foreign policy. The Framers supposed that the infusion into the foreign policy process of checks and balances would maintain the constitutional allocation of powers and, therefore, prevent unilateralism, aggrandizement and usurpation.
They believed that the structure of shared powers in the conduct of international affairs, bottomed on the premise and promise of legislative deliberation, would produce wise policies and, in the words of Wilson, “a security to the people,” for it would afford in Congress an airing of the various political, economic and military interests that were bound up in the nation’s external relations.
David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and Presidential power. He can be reached at david.adler@alturasinstitute.com.