# 10 Class--War Powers: 3-26-12

3-26-12

Lecture # 10: Law & Social Policy: War Powers

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1. Readings
There are two things it will always be difficult for a democratic nation to do: beginning and ending a war. Tocqueville 755
A lengthy war in a democratic country places freedom under threat. Tocqueville 755

In America, conscription is unknown; men are enlisted for payment. Compulsory recruitment is so alien to the idea and so foreign to the customs of the people of the United States that I doubt whether they would ever dare to introduce it into the law. Tocqueville 260

In a time of war, the law falls silent. --Cicero

“…the Constitution is an invitation for a struggle between the president and Congress over control of the war power.” Erwin Chemerinsky p. 381.


2. Summary of Class #9: Corporate Political Activity

In the first class we examined the Power of the People; the second, the Power of the Judiciary; the third the Power of the Legislature; the fourth the Power of the Executive Branch in the fifth we reviewed social, political and governance themes and issues treated by Tocqueville in his classic work, Democracy in America. The sixth class concerned the Death Penalty, the seventh class considered Race. In the Eight we covered libel and the Ninth Corporate Political Activity. Here’s what we’ve learned about corporations and their right to influence the outcome of elections.


Corporate Political Activity

Since the 19th century, corporations have been prohibited from attempting to influence the outcome of elections. Kentucky’s prohibition is ensconced in its constitution. In the 9th class we examined the current state of state laws that restrict corporations from attempting to impact elections and determined that the 2010 case of Citizens United v. Federal Election Commission broke with past court decisions (saying stare decisis was not a method to compound and carry forward errors) and allowed corporations—legally deemed to be ‘persons’—to spend money—an exercise in political speech—to influence the outcome of elections (but could not make direct political contributions to campaigns). From the perspective of this class—where our principal focus is how the law evolves as a reflection of social policy---we are left with a nagging question. What is the status, the nature, the extent, the scope and purpose of stare decisis? This is the chief object of the concurring opinion by the Chief Justice. Here are some excerpts:

Justice Roberts Concurrence in Citizens United & Stare Decisis
"... if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake." (slip op., pp. 7-8).

And:

"To the extent that the Government’s case for reaffirming Austin depends on radically reconceptualizing its reasoning, that argument is at odds with itself. Stare decisis is a doctrine of preservation, not transformation. It counsels deference to past mistakes, but provides no justification for making new ones. There is therefore no basis for the Court to give precedential sway to reasoning that it has never accepted, simply because that reasoning happens to support a conclusion reached on different grounds that have since been abandoned or discredited.

Doing so would undermine the rule-of-law values that justify stare decisis in the first place. It would effectively license the Court to invent and adopt new principles of constitutional law solely for the purpose of rationalizing its past errors, without a proper analysis of whether those principles have merit on their own. This approach would allow the Court’s past missteps to spawn future mistakes, undercutting the very rule-of-law values that stare decisis is designed to protect."
http://www.cato.org/pubs/articles/shapiro-nexus-vol16.pdf Excellent article on stare decisis prompted by Citizens United

3. Lecture #10: War Powers: A Debate. Did the President Commit an Impeachable Act by Attacking Libya?

What is the evolutionary process by which laws come to reflect changing social policies (short of outright amendment to the law or adoption of new statues)? What’s the algebraic equation, what are the metrics, how do we track it, measure it, quantify it? The substantive lectures on the death penalty, libel, school segregation, corporate political activity, war powers, marriage are not the text—they are the footnotes to the text, illustrations of the various METHODS by which changing social policies impacted the law. Might we actually list the methods:
1. Judicial review (interpretation by its very nature is an evolutionary process. When a court is guided by broad principles, constitutional principals, change is built into the model. Examples:
2. The 8th Amendment, evolving standard of decency. Example: the death penalty. This was relatively easy concept for us to grasp. Changing mores are actually consulted to reach a result. The process is direct, deliberate, open although the steps may be open to contention ( for example, whether foreign law or the opinions of experts is a legitimate )…..
3. Racial separation in public education presented a more difficult chalange. Here the conduct that would be disapproved of was actually authorized by law. So social science was used to prove that the law’s requirement of equality could not be met through separation. Science, or more particularly social science, was used
4. Unlike the death penalty case where the was in place a constitutional concept to deal with the change in social policy or the race cases where science was used to give new meaning to old language, the libel case was somewhat of a blank slate. The defamation case didn’t fit any specific provision and there was no helpful legislative history; in fact, what little history was available was not helpful because private tort cases didn’t seems to involve state action. So here the social policy was reflected in overarching purposes of free speech and the important role it plays in democracy. Perhaps we might say the result was ‘necessary’ to vindicate broader values.
5. The ‘war powers; class brings us to a new place----The invitation for conflict as to the scope, operation and meaning of the war power is built into the constitution itself; Article I of the Constitution gives Congress the power to declare war but Article II makes the president the commander in chief. Our textbook writer says this feature of the constitution is an invitation to struggle over control and conduct of war. The judiciary has rarely intervened in the struggle mainly because of the political question doctrine—that doctrine declares off limits judicial review of issues that are essentially political decisions.



4. Student Assignments Class # 10, War Powers

Assignments for Class #10:

Debate: Jonathan and Nicolas: “Patriots Debate: The Meaning of the Constitution in a Time of Terror.” ABA Journal, February 2012 pp.29-40 by Louis Fisher (only Congress Can Declare War), Richard Brust (Constitutional Dilemma) and John Woo (War Powers Belong to the President).

1. Brad Corbin: Chemerinsky Chapter 3 Section 3.5.1 “War Powers” pp.
290-291; Chapter 4 Section 4.1 “Inherent Powers” pp.343-348;

2. Zac Richards: Chapter 4 Section 4.3 “Executive Privilege” p.362; Section 6.3 “War Powers” pp. 381—392 (including presidential power and the war on terrorism, detentions, military tribunals).

3. Sarah Thompson: Tocqueville Vol. 2 Part 3 Chapter 22 “Why Democratic Nations Have a Natural Desire for Peace and Why Democratic Armies Naturally Seek War” pp. 750—757;

4. Cathy Barnes:Tocqueville Vol. 2, Part 3 Chapter 23 “A Few Remarks on War in Democracies” pp. 767-773.

5 & 6. Molly Isaacs McLeod and Judith Peoples ( you decide how to divide the work): The Federalist Papers No. 23, 24, 25, 26, 27 (Hamilton) pp. 148-173.

7. Stephanie Carr: The Federalist Papers No. 69 (Hamilton) on executive
branch power pp.414-416 only; and No. 74 (Hamilton) pp. 445-446.

Lecture #10: War Powers
[March 26, 2012]
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Assignments for Class #10:
1. Chemerinsky Chapter 3 Section 3.5.1 “War Powers” pp. 290-291; Chapter 4 Section 4.1 “Inherent Powers” pp.343-348; 4 Section 4.3 “Executive Privilege” p.362; Section 6.3 “War Powers” pp. 381—392 (including presidential power and the war on terrorism, detentions, military tribunals).
2. Tocqueville Vol. 2 Part 3 Chapter 22 “Why Democratic Nations Have a Natural Desire for Peace and Why Democratic Armies Naturally Seek War” pp. 750—757; Chapter 23 “A Few Remarks on War in Democracies” pp. 767-773.
3. The Federalist Papers No. 23, 24, 25, 26, 27 (Hamilton) pp. 148-173.
4. The Federalist Papers No. 69 (Hamilton) on executive branch power pp.414-416 only; and No. 74 (Hamilton) pp. 445-446.
Montesquieu was cited more by the American founders than any source except the Bible. He was a powerful influence on James Madison, the “Father of the Constitution” persuading him that freedom and stability required a clearly defined and balanced separation of governmental powers.