War powers Zeisberg, Mariah
2013., 20130721, 2013, 2013-07-21
eBook
Armed interventions in Libya, Haiti, Iraq, Vietnam, and Korea challenged the US president and Congress with a core question of constitutional interpretation: does the president, or Congress, have ...constitutional authority to take the country to war?War Powersargues that the Constitution doesn't offer a single legal answer to that question. But its structure and values indicate a vision of a well-functioning constitutional politics, one that enables the branches of government themselves to generate good answers to this question for the circumstances of their own times.
Mariah Zeisberg shows that what matters is not that the branches enact the same constitutional settlement for all conditions, but instead how well they bring their distinctive governing capacities to bear on their interpretive work in context. Because the branches legitimately approach constitutional questions in different ways, interpretive conflicts between them can sometimes indicate a successful rather than deficient interpretive politics. Zeisberg argues for a set of distinctive constitutional standards for evaluating the branches and their relationship to one another, and she demonstrates how observers and officials can use those standards to evaluate the branches' constitutional politics. With cases ranging from the Mexican War and World War II to the Cold War, Cuban Missile Crisis, and Iran-Contra scandal,War Powersreinterprets central controversies of war powers scholarship and advances a new way of evaluating the constitutional behavior of officials outside of the judiciary.
Instead of arguing for a return to the original understanding of the Constitution, then, Griffin's work traces the political processes through which, he claims, "the policy objectives of state ...officials and the public along with new capacities for government action created a constitutional order that is in considerable tension with the meaning of the text." Too much emphasis on exchanging reasons can itself trigger policy failure, as many believe happened, or almost happened, in the lead-up to World War II, where adherence to a strict inter-branch deliberative process blocked U.S. intervention until the final hour and thereby almost allowed the Axis powers global domination.
Extensive political science research reveals that the decisions of the US Supreme Court are deeply political. And both advocates and critics of judicial elections concede that partisan elections are ...a democratic method of judicial selection. Does the value of democratic representation mean that US Supreme Court Justices should be selected through partisan elections? I argue not. Partisan judicial elections are actually far poorer institutional mechanisms for capturing the judgment of the people on legal matters than has been recognized. The role of parties in structuring a campaign distorts the deliberative environment surrounding judicial elections, creating significant barriers to voters expressing a judgment on matters of legal meaning. The kind of distortion is best understood through reference to a processual criterion of deliberative democracy, which provides a fitting normative template to ground theoretical inquiry into the reason-giving possibilities of existing democratic institutions and practices. Hence, answering why the US Supreme Court should not be elected on democratic grounds also reveals new insights about the role of parties in sustaining (or subverting) deliberative democratic ideals.
The National Constitution Center (NCC) in Philadelphia orients its representation of the Constitution around the role of “We the People” in the conduct of constitutional politics. The ...self-presentation of the NCC explicitly connects its participatory interpretation of the Constitution to the interactivity of the museum experience itself, and announces its aspiration that visitors “get involved!” In so doing the NCC draws upon an emerging edge in museum theory that emphasizes the capacity of museums to support political citizenship. Although the museum's aspiration to enact participatory citizenship is laudable, its exhibits—because of their technologies, use of space, and content—subvert, rather than sustain, the participatory ideal.
In early 2012 President Quaddafi’s suppression of popular uprisings in Libya began to arouse concern domestically and abroad. Attention began to focus on what, if any, the US response would be. By ...late February the UN Security Council adopted a resolution expressing “grave concern” about Libya, and the US Senate unanimously approved a resolution calling for the Security Council to impose a Libyan no-fly zone.¹ By March, the Security Council had authorized member states to use force to protect Libyan civilians, and the House simmered with dispute about the president’s constitutional war authority.² on March 18 President Obama deployed troops
A central controversy of war powers today is whether, and under what conditions, the president may directly engage in war without particular legislative authorization. Pro-Congress scholars read ...Congress’s ability to “declare war” as an exclusive power to authorize hostilities, implying that independent presidential war is unconstitutional. This view met a profound challenge in the Korean War, commonly read as the “single most important precedent” for the displacement of Congress in the war powers system.¹ Many see legislative acquiescence to Truman’s deployment of troops as a harbinger of constitutional degradation, a turning point in which fast-moving events, widespread fear, and opportunism
The relational conception’s emphasis on war as a political question leads to scrutiny of the processes by which interbranch understandings of war, defense, security, and authority are constructed. ...Through what processes do the branches form judgments about the security and constitutional controversies of the moment? One important tool Congress uses to hone its judgments and confront those of the president is legislative investigations. While investigations serve many functions, their capacity to serve as a site for the development of an informed institutional judgment is highly relevant to the work the relational conception assigns the branches. Scandals about the president’s use
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