LONG WARS AND THE CONSTITUTION

by Stephen M. Griffin. Cambridge, MA: Harvard University Press, 2013. 362pp. Hardcover $39.95. ISBN 978-0-674-05828-6.


Reviewed by Kimberley Fletcher, Department of Political Science, Ohio University. Email: fletchk2 [at] ohio.edu.

pp.538-542

Long Wars and the Constitution by Stephen M. Griffin is a superbly written historical account of constitutional change. He skillfully intertwines a historical, legal and political analysis to demonstrate how and why presidents since 1945 have come to take the lead when taking the nation into war. Griffin employs a rather simplistic theory of constitutional orders. Arguing that simply reacting to a foreign threat does not constitute a new order. Rather “the purpose and nature of the new order must be articulated and defended so that stakes are publicly known” (p.55). There are essentially two time periods for Griffin: a constitutional order that existed pre-1945 and a new one that exists, and is still prevalent, post-1945. The complexity with which Griffin weaves his theory and his precision to detail presents a retelling of the nation’s past, which is expertly argued. His historical account illustrates therefore the plausibility of the re-ordering he asserts and the factors that facilitate this change: “change that persists over time along all three dimensions of a constitutional order: plausible interpretations of the text liked to attractive visions of public policy that can be implemented through changing the capacities of state institutions” (p.55).

Griffin primarily utilizes a historicist theory to demonstrate constitutional change. He dissects and criticizes the use of the war power by executives since 1945. While Griffin addresses the state of the constitutional order prior to World War II, with attention given to the state of play during the eighteenth century, it is those events and the constitutional order in contemporary times that is of particular relevance for Griffin. In fact, executives were “implicitly rejecting the founding generation’s view that war required a special measure of deliberation” (p.50). For Griffin, “[w]ar is thus qualitatively different from any other foreign or domestic policy pursued by government. It creates special challenges even for a well-functioning constitutional order” (p.18). Understanding what happened in the Cold War, which Griffin notes is our last long war, makes sense of how power relations have shifted. Griffin notes that there were developmental issues as the old constitutional order was replaced by the post-1945 constitutional order: “After the crises of the early Cold War receded, the tidal force of the original constitutional order reasserted itself and the post-1945 constitutional order became unstable” (p.104). However, the bottom line for Griffin is that “war powers are not within the legalized Constitution” (p.34). Few would argue that contemporary presidents adhere to the original meaning of the Constitution [*539] and with the state of affairs, irrespective of the concerns we have with the use of presidential war power, there is no conceivable way to return to the original constitutional order. However, one of the most interesting aspects of the book is Griffin’s treatment of the rule of law. He suggests that presidents while not “blameless in their exercise of power in foreign affairs,” have also not “been alone in making decisions or operating entirely outside the Constitution. If we focus only on presidential acts as operating outside of the rule of law ignores the impact and occasions in which the executive has received “political support for actions that from a constitutional point of view are quite dubious” (p.2).

By reconceptualizing the standard debate on the war powers Griffin offers a nuanced reading of the imperial presidency and demonstrates how the rule of law can be reconstituted over time. Griffin asserts presidential leadership in foreign affairs has been exalted to war powers, which subverted our constitutional order and derailed our nation’s foreign policy. Griffin points out the political reality “…it had taken far too long to move the inter-branch machinery in response to the Nazi threat that drove public officials and members of the foreign policy elite to found a new constitutional order stressing presidential initiative in foreign policy after 1945” that moved the “baseline of power in foreign affairs” (p.49).

Replete with constitutional history documenting presidential war decisions from 1945 to the present and by using the frame of the imperial presidency Griffin’s illustrates how the eighteenth-century Constitution is ineffective to the challenges we now face in the post-September 11 world. Griffin notes that while the Constitution commands congressional consent before the nation can engage in war, Griffin notes that the “1950 thesis” has some validity. Truman’s decision to initiate hostilities with Korea without first obtaining congressional consent is the first signs of unconstitutional action taken by the executive. Griffin points out that since Congress and the nation at large acquiesced in this moment and a model of behavior to be repeated was created for subsequent presidents to claim the sole authority to act in this area. This precedent of unilateral presidential action to determine when the nation goes to war created a new constitutional order and it was Truman who led the way. But there is more to the story. Griffin asserts that while Truman’s commitment of troops to Korea demonstrated an assertion of power and a change in the constitutional order, it is the resources and state capacities that were available to him and presidents coming after Truman that enables presidents to act in this area and contrary to the rule of law. Consequently, Griffin asserts the most important aspect of this transition is the state’s capacity to act. This aspect has largely been overlooked in most studies written on presidential war powers. As such, our current understanding of the use of war powers is not complete without first taking this aspect into account.

Griffin considers the war powers debate at some length. For those not familiar with the war powers debate, LONG WARS AND THE CONSTITUTION guides the novice through the first historical account of the debate. Griffin convincingly argues that the war powers debate began in the wake [*540] of Vietnam (p.78) and has been ongoing for decades. To fully understand Griffin’s theory of constitutional orders in the area of foreign affairs, this is a worthwhile discussion. The historical account presented by Griffin on the war powers yields an alternative perspective on executive decision-making and foreign policy making. It also yields an alternative understanding of how the baseline pre-1945 changed post-1945.

Presidential use of war powers has been labeled as “imperial” but this description does not provide a correct evaluation of the executive’s role in this area. Griffin provides a thorough account of all significant presidential war powers opinions since 1950 and counsels that presidents do not deserve the kinds of attacks that have been directed at them. Why? Because from their perspective it is not as cut and dry as stating that they are asserting the power to act during wartime, but rather it is in an attempt to protect our national security that grants them the authority to adopt a foreign policy in order to meet those ends. Furthermore, there are formidable reasons to believe that executives are merely acting in good faith—this is what the public and the legislative branch expect of them. However, as Griffin notes, the contention comes when presidents promote an overarching policy to extend the nation’s military worldwide. This advancement is based largely on the executive’s assessment of the threats facing the nation and his authority to act. Presidents consequently have assumed broader war powers.

While there is more to the discussion than the traditional notion that the war powers debate rests on those moments when presidents have committed the nation to a major war without obtaining the authorization from Congress. The purpose of the book for Griffin is not to reargue the war powers debate, but instead to move beyond the debate itself to address the substantive issue of the development of presidential decision-making. It is through this kind of discussion that Griffin unearths the interesting point that even though presidents have, at times, sought and received legislative approval, no post-1945 president—with the exception of maybe Eisenhower—thought it was constitutionally necessary. In the case of Eisenhower, Griffin points out, “beliefs about congressional involvement tended to vary depending on the form of war he was considering” (p.105). In conventional warfare for example, Eisenhower endorsed a strong legislative role.

There are three aspects of war examined by Griffin in LONG WARS and they include, conventional, covert and nuclear. Studies have not always included covert operations—for example, the Bay of Pigs, which was by all accounts a serious nuclear threat in this area. Examining these three dimensions exposes the inadequacies of executive decision-making and the consequences of policy making by the executive. Griffin argues that the missile crisis “is generally regarded as a turning point in the Cold War” since both sides took major steps to reduce tensions between the two nations in order to avoid direct conflict with respect to nuclear weapons (p.114), but the upshot of this situation “did not cause anyone to question presidential leadership in foreign policy” (p.114). The post-1945 “constitutional order was intact” even as Kennedy handled a number of crises, [*541] from Berlin to Vietnam but it was evident that the original constitutional order was not adequate to deal with the “strains of conducting an indefinite war” (p.114).

In addition, for a president to acknowledge that a constitutional requirement was necessary would be to concede that a limit exists on his authority to conduct the nations foreign affairs and defend our national security. Presidents are acutely aware that they will be held responsible if the nation is attacked and they are found not to have taken the necessary steps to defend against such an attack. As such, responsibility is synonymous with authority.

Of the many examples used by Griffin it is his reflection on President Obama’s perpetuation and use of many of the Bush administration’s policies in the continued war against terrorism that is most telling. It is however, only the most recent concern in a long line of examples where presidents have repeated the imbalance of power established by the constitutional order of post-1945. To thwart continued imbalances, Griffin calls for a new cycle of congressional involvement. However, Griffin never appears to lose sight of the realities facing our nation’s diplomacy in the twenty-first century. And unfortunately, Griffin points out that today’s president is therefore beset with the dilemma of being given the dubious task of handling our nation’s war powers because of the dangers posed by other world powers and the ineffectiveness for rigorous decision-making due to a lack of inter-branch debate. And even though Congress has the constitutional power to declare war it does not serve as a constraint upon presidential behavior in the area of foreign policy making. Griffin persuasively illustrates that the Constitution is an inadequate source for claiming and exercising “militarized global leadership.” Moreover, it is na├»ve to continue to assert this basis, and administrations time and again with Congress in tow, have done irreparable damage to our political system in an attempt to construct national security policies that are profoundly flawed.

For Griffin the significance of this discussion is not the legal or constitutional implications, but rather how does this understanding impact policy making for the executive branch. LONG WARS demonstrates, through countless examples, that the move beyond the original constitutional order has paved the way for questionable executive decision-making in all major wars, both covert and conventional following World War II. It is strikingly clear, through the evidence presented by Griffin, because Congress has not placed any significant check on the executive, including the failure of the War Powers Act (1973), it leaves the executive to his own devices. This, at times, presents a real cause for concern as we have witnessed time and again that presidents have not adequately made full use of their resources when they decide to go to war.

While Griffin’s book examines constitutional orders the focus naturally must be on how that change comes about, how it endures over time, and how it is instituted. Griffin does speak to the judicial branch’s weak response to these assertions of power. This demonstrates how the Court has also served to perpetuate this cycle. [*542]

Griffin’s book, LONG WARS AND THE CONSTITUTION, is a significant new addition to constitutional theory. It will reshape the debate on presidential authority to take the nation to war without first obtaining congressional approval. This is a book that should be assigned in any class discussing constitutional change, presidential politics, balance of power, and foreign affairs. Griffin expertly demonstrates that by understanding how a recurrent pattern of constitutional crisis exists we can better understand how the Constitution works today. While office holders pledge to uphold the Constitution first and foremost, this study illustrates that a new constitutional order supplanted the original constitutional order through the practical realities of responding to threats to our national security. LONG WARS ultimately demonstrates that the president is acting outside the rule. While there were developmental issues in instituting a new constitutional order, our nation is operating under a new one, which governs and situates the executive at the forefront of our nations’ decision-making in war powers.

LONG WARS works superbly in any public law class to illustrate how the Constitution can be altered without resorting to Article V. This is also a book that can be utilized in an American political development class given Griffin’s attention to the political debates surrounding the use of the war powers. Moreover, Griffin illustrates the influential nature of law within our society especially as the war powers serve to constrain the behavior of both the executive and legislative branch.


Copyright 2013 by the Author, Kimberley Fletcher.