I have this post at Law & Liberty: The Constitution’s Check on Warmaking – Critics of Nicolás Maduro’s capture would be on much stronger footing if they were originalists. (This is an expanded version of this earlier post here, and — as to the history — a short version of Textualism and War Powers). Here is the core point as to originalism and nonoriginalism:
The president’s action against Venezuela seems to fit this original sense of declaring war. It was, in Johnson’s dictionary definition, “the exercise of violence under sovereign command against withstanders.” It was, of course, not a full-scale conflict, but neither were the early conflicts that Americans thought needed Congress’s approval, such as the limited conflicts with France and Tripoli. In eighteenth-century terms, “war” meant limited conflicts as well as full-scale ones. And as John Marshall wrote in Talbot v. Seeman (1801), “the whole powers of war” are “by the constitution of the United States, vested in Congress.” So under the Constitution’s original meaning, the president needed Congress’s approval to act militarily against the Maduro government.
Ironically, though, many of the president’s critics in the Venezuela matter are also (to put it mildly) originalism skeptics. We’ve been told that originalism in constitutional interpretation is impossible or ahistorical or immoral; that it leads to bad results or is a cover for imposing conservative political values. People who hold these views should not care what the Constitution originally meant or what the founding generation originally understood about presidential war powers.
Moreover, under leading nonoriginalist approaches, the constitutionality of the Venezuela operation is at least plausibly defensible. Modern practice suggests that the president has authority to initiate limited military actions against hostile governments: George H. W. Bush’s 1989 Panama operation; Clinton’s bombing of Yugoslavia; and Obama’s bombing of Libya, to name a few—plus, to reach further back, actions such as Woodrow Wilson’s intervention against the Huerta regime in Mexico. Although some members of Congress objected to these actions, Congress as a whole reached no institutional consensus against them. These prior limited military actions play a central role in the Trump administration’s defense of the Venezuela action—as they should, under a nonoriginalist approach that looks to modern practice to update the Constitution.
Further, nonoriginalism calls on us to consider how modern conditions indicate ways to update the Constitution. With this in mind, modern conditions may suggest more need for unilateral presidential authority than in the eighteenth century. The speed, scope, and asymmetry of modern conflicts may require the secrecy and decisiveness of immediate executive action without extended public deliberation, so long as that action does not precipitate a sustained long-term commitment that might truly, in modern terms, be called a “war.” An evolving Constitution, taking into account modern conditions and modern practice, seems open to recognizing the authority the president claims regarding Venezuela.
The short of it is that originalism provides a more robust check on presidential power than nonoriginalism—or at least it would if our legal culture broadly embraced it. Those who have devoted their energy to disparaging originalism have also undermined our Constitution’s checks on the president, including in the Venezuela operation and perhaps others like it in the future.
Posted at 6:09 AM