Liberty, Prudence, Imperfection, and Law

“Just a President: Not a Prince, a King, or a Policeman” by Kevin R.C. Gutzman 

This essay was authored by Kevin R.C. Gutzman for Nomocracy in Politics.

Sunday, May 25 on “The McLaughlin Group,” Pat Buchanan and Rich Lowry had a fascinating conversation. It illustrated the state of conservative ‘constitutionalism” in both of its major stripes clearly.

The issue: the proper US Government response to Nigerian Islamist group Boko Haram’s kidnapping of hundreds of schoolgirls and its leader’s announcement that he would sell the girls into slavery and/or force them to convert to Islam. Buchanan, describing himself as a “non-interventionist,” said that in case a plan promising success at low cost were presented, he would favor American military intervention. Lowry gleefully replied that by that standard, “We could intervene in Syria!”

Neither, it seems, gave any thought to the constitutional ramifications of his position. From an originalist point of view, however, the impulse to intervene in Nigeria raises serious questions.

Article I, Section 8 of the United States Constitution begins by saying, “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.” It then goes on to list seventeen specific purposes to which Congress can apply this power, such as raising armies, regulating weights and measures, and coining money.

Notably absent is “to police the world,” let alone “to do good where armed intervention might be expected to do so.” In light of contemporary public-policy experts’ views, one could infer that this was some kind of oversight or that there must be language elsewhere in the Constitution authorizing Congress to put American tax money to such a purpose.

If not Congress, does the president have such power? Article II says the president shall have the executive power and shall be commander in chief of the army and navy. From the earliest times, not only did Congress have the Article I, Section 8 power to declare war, but launching American forces into hostilities overseas was understood to require Congress’s consent. As the phrase “Chief Executive” would seem to indicate, the president’s military role in non-defensive scenarios was to execute policies legislated by Congress.

The reasons are not hard to find. The Ratifiers knew that British kings’ unilateral power to commit the United Kingdom to war and to treaties had resulted in distortion of the British political system. An official with that power could, through the related powers to hand out contracts, appoint officers, and otherwise reward those who cooperated with him, bend the legislature to his will. Therefore, they agreed to a constitution under which the president would lack the war power, but would need the advice and consent of the Senate to make appointments and enter into treaties. Even Congress’s military power was limited: it could not appropriate money to the military for longer than two years.

Give the prince an army, it was thought, and he would find a war to fight with it. That way lay debt, higher taxes, dead soldiers, concentration of authority in the Executive Branch, and the undermining of republicanism generally. Not only British, but recent Danish and ancient Roman history seemed to prove that point.

Buchanan seems to have fallen into the habit, described by Tom Woods and me in Who Killed the Constitution?, of mistaking the president for a prince. Seeing a wrong in need of righting, he espies no obstacle other than prudence to the president’s doing so. No wonder the generally neoconservative Lowry finds Buchanan’s posture so attractive.

Kevin R. C. Gutzman is the New York Times best-selling author of four books. These include his latest title, James Madison and the Making of America. Professor of History at Western Connecticut State University, Gutzman holds a bachelor’s degree, a master of public affairs degree, and a law degree from the University of Texas at Austin, as well as an MA and a PhD in American history from the University of Virginia.

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