The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11.

• Author: Silverstein, Gordon
• Position: Book review

THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11. By John Yoo. (1) University of Chicago Press. 2005. xii + 366 pp. $29.00

War requires strong, centralized and efficient government. But that same sort of government is a conservative's worst nightmare when it comes to domestic policy. This has left conservatives with a stark constitutional conundrum, at least since the First World War: Must they sacrifice a commitment to limited government in order to play an essential world role? Or, conversely, must they sacrifice that world role to assure liberty and limited government at home?

This dilemma literally exploded onto the American political agenda on September 11, 2001. In the aftermath of that crisis John Yoo--then a Deputy Assistant Attorney General--contributed a series of memos articulating legal theories to support the Bush Administration's assertion of war and treaty powers. Having now returned to his position as Professor of Law at Berkeley's Boalt Hall, Yoo has written a comprehensive book attempting to construct a constitutional justification for this assertion of extraordinarily broad Executive power and yet, at the same time, a theory that attempts to build barricades against the risk that this massive central power might blow back, and erode constitutional limits at home.

Professor Yoo argues that properly understood, the Constitution as written and ratified not only allows, but expects Presidents to exercise a free hand in foreign lands, giving Presidents nearly unlimited powers in war, along with virtually unconstrained authority to interpret or even terminate treaties such as defense pacts with Taiwan, Anti-Ballistic Missile agreements, and the Geneva Convention Accords on the Treatment of Prisoners and the U.N. Convention Against Torture. (3) But this very same Constitution, Yoo argues, limits the creeping spread of global governance and the risk it poses to limited government and individual liberty at home.

Professor Yoo's theory rejects a reliance on original intent or meaning as expressed by the Constitution's authors, building a fairly open-textured "original understanding" of those who ratified the document in the States to support his view. It was this understanding, shaped by that generation's own experiences, education and cultural context that Yoo believes should guide us through the Constitution's more ambiguous phrases when it comes to war and foreign affairs.

A thoughtful conservative scholar and professor, Yoo insists that the Constitution--at least in foreign affairs--has evolved in ways very much in keeping with the distribution of power those who ratified the Constitution might well have "anticipated" and well understood (p. 295). He frequently asserts these sorts of presumptions: "Struggle over the powers of war and peace would have remained at the center of the Framers' memories of British political history" (p. 46); "In considering the foreign affairs power, the Framers would have looked to recent British political history as much as to intellectual thought on the separation of powers" (p. 45); and "a majority of the Framers probably believed that the President enjoyed a 'protective power'" (p. 100); to note just a few of many.

Yoo's claim is that when it came to the powers of war, the framing generation (if not the framers themselves) "would have" understood the relationship of Congress and President "to mimic the British forms of government" (p. 65). Yoo makes a powerful case that the founding generation, steeped in English law and Parliamentary history and fearful of the anarchy threatening to disintegrate the young nation under its original charter of government, built a new government that would be able to confront these dangers. The answer they came up with, Yoo argues, was to recreate the relationship between King and Parliament. There are striking parallels--and Yoo does a service by pointing them out--but there are profoundly striking differences that he largely ignores.

In England, the Crown alone decided on when to go to war, and how to fight. But this power was checked by Parliament's control of the purse strings. Therefore, Yoo concludes, since Congress today retains ultimate control of the purse-strings, and since (at least in practice) the Executive has assumed the initiative in war powers and foreign policy, we should maintain this division of labor.

There are two problems here. First, does this division of power accurately reflect the constitutional design? And second, was the allocation of powers he focuses on the means or the ends? In other words, was the division of initiative and finance the objective in this institutional design--or was that merely the means employed to balance the two branches of government? If it was the later, then our focus ought to be on maintaining this balance rather than any particular distribution of specific powers.

Of course the founding generation could not escape its own experiences and education. Thomas Jefferson acknowledged that there were "some among us who would now establish a monarchy," but these people, Jefferson insisted, are "inconsiderable in number and weight of character." Jefferson admitted that his own generation was "educated in royalism," but "our young people are educated in republicanism. An apostasy from that to royalism is unprecedented and impossible." (4)

Though they built their new government on old foundations, the institutions they put in place were anything but the sort of replica Yoo asserts the ratifiers "would have" intended or embraced. As James Madison made clear in The Federalist No. 37, the founding generation was painfully conscious of how inadequate were the existing models on which they might build their new system. All "the other confederacies which could be consulted as precedents" throughout human history had failed, Madison noted, and could "furnish no other light than that of beacons, which give warning of the course to be shunned, without pointing out that which ought to be pursued." (5) The most the Americans could do, Madison insisted, was "to avoid the errors suggested by the past experience of other countries," and try to develop new institutions that might be as self-correcting as possible, that would "provide a convenient mode of rectifying" our own errors "as future experiences may unfold them." (6) It seems, then, that though the Americans surely were influenced by the relationship of King and Parliament, they were consciously attempting to develop new institutions and new institutional arrangements.

Yoo is right that the key congressional power was (and remains) the power of the purse. And while the President is assigned the duty of Commander-in-Chief, it is Congress alone that is charged with the power to "raise and support" armies and navies; to tax and to spend. But why this arrangement? Why this division? Was the division of authority the end itself? That is the second part of the problem with Yoo's argument. The purse is still the most important and powerful weapon Congress has to fight off an aggressive President. But it is far less potent and far less meaningful than was the Parliamentary purse. (7)

For one thing, the United States in 1789 had no standing army, and no taste for one either. It was in fact the lack of a large and mobile standing army that delayed American entrance into World War I, and again, a major problem in the months before the United States entered the Second World War. But thanks to the Cold War and a growing world role, the United States now has more than 1.4 million uniformed troops on active duty, 24-hours a day...