Constitutional obstacle to war with Iran
The current issue of Harper’s Magazine features an eye-catching cover that asks this provocative question: “Do We Need the Constitution?”
Harper’s convened a panel of five lawmakers and scholars to discuss how much sense it makes to use a 230-year-old document written by rich, white, male slaveholders to govern a diverse, complex, technologically advanced 21st century country like ours.
One panelist questioned whether we need a constitution, at all. New Zealand doesn’t have one, he said, and it seems to be doing fine.
Another supports the Constitution but suggests that it’s currently not producing a democracy that is “responsive to the people.” His solution is a constitutional convention to remedy the anachronisms that the Founders could not have foreseen.
But the best course lies somewhere between the drastic alternative of no constitution and a dangerous constitutional convention, which, in our country’s current mood, would be a divisive convocation fraught with bad ideas and unintended consequences.
Better to take the middle road and work with the constitution that we have, even if, for example, the benefits of the brilliant First Amendment have to be balanced against the troublesome ambiguities of the Second.
In fact, sometimes the Constitution’s anachronisms would serve us well if we paid more attention to them. The current dangerous situation with Iran provides a practical example:
We are on the point of war with Iran. Thoughtful experts agree that such a war would be disastrous. President Donald Trump sees it differently. Last Friday he was casual about the prospect of war, suggesting that our powerful military could easily overwhelm Iran.
He bragged that if he chose he could retaliate against Iran at any time for its alleged attacks on Saudi oil facilities. He implied that the decision is his to make. He said that an attack on Iran would be “easy.”
You don’t have to be much of an expert on warfare or the Middle East to see that this is terribly mistaken. But the only good thing about having a bully in the White House is that bullies usually don’t follow through on their bluster. At present we’ve taken a small step away from the brink of war.
But the situation with Iran is still dangerously volatile. If it comes to combat, historians will note that this war’s origins were complicated, but its proximate cause was Trump’s abrogation of a duly negotiated, good-faith, functioning agreement to limit Iran’s nuclear program and the subsequent application of sanctions that pushed a powerful, proud country to desperation. And then, when the mood suited him, Trump attacked.
So if there’s a war with Iran, it will, indeed, be Trump’s War.
This is not what the Founders had in mind. They did not intend for the power to make war to reside in the hands of one man. Thus the Constitution’s Article I, Section 8 awards the power “to declare war” solely to Congress.
But the last time Congress used this power was in 1942. Certainly, things move much more quickly now than in 1789; fleets took weeks to cross oceans that modern missiles can cross in minutes. These days we sometimes need military action more quickly than Congress can provide. Thus since World War II, Congresses and presidents have reached various accommodations that have provided considerable war-marking powers to the executive branch. Sometimes this power is essential. More often than not, though, things have not turned out well.
And there’s no reason to think that a war with Iran would turn out any better than our ill-considered war with Iraq. Trump has demonstrated little understanding of the catastrophic potential of such a war. And his public affection for military solutions makes the situation all the more dangerous.
Do we need the Constitution? Yes, now more than ever. But we need to actually use it. In the case of Iran, Congress — Democrats and Republicans — must insist on its rarely exercised right to declare war. Or not declare it. The basic principle that no man should be allowed to take the nation to war is foundational in the Constitution and to the intent of the Founders.