In the last few days, two 70’s-era laws have been brought up — and some have found them wanting.
The first was the Supreme Court decision in Roe V. Wade. Senator John McCain said at a campaign event (in case you haven’t heard, he’s running for president) that he would like to see it overturned.
It’s hard to set aside the passion that the abortion debate rouses, but I really, really wish we could do that for brief while and actually LOOK at the decision. Regardless of how one feels about the issue (I am “squishily” pro-choice), the actual ruling is a mess. It’s sloppy work, written “backwards” — the conclusion was reached, and then the authors worked from that to find justifications for it. It’s probably the worst bit of Constitutional law ever theorized, even surpassing the shoddy phrasing of the 2nd Amendment (which, depending on how one parses the grammar, either enshrines or restricts the private ownership of firearms). Speaking purely in an objective basis, it OUGHT to be reviewed — and trashed. What ought to take its place can be debated, but I defy anyone with a straight face to say that the actual ruling, as written, represents clear Constitutional thought.
The second is the War Powers Act. That measure, passed in the wake of the Viet Nam War, recognizes the president’s authority to initiate hostilities without prior Congressional approval — but only for up to 90 days.
As time has passed and technology has made the world so much smaller, the whole matter of international conflict has grown far more complicated — and immediate. We can no longer count on our oceans providing us with the privacy and time to debate such matters at leisure. At the height of the cold war, the United States was not weeks away from attackers, but mere minutes. As such, we simply didn’t have the time for Congress to debate whether or not to declare war; large portions of the United States could be annihilated in the time it would take for a single roll call in the House.
The threat has eased up slightly, but the War Powers Act is still on the books. And the debate over just what is Congress’ rightful role in setting foreign policy — especially in matters not quite at the level of a formal declaration of war.
Also, the military might of the United States has grown beyond logarithmically. At the outset, some argued on putting a cap on the size of the Army. I am probably mangling some details, but I recall some said that we should not have a standing army of more than 5,000. George Washington acidly observed that we ought to include a similar provision, limiting invading armies to no more than 3,000, and the whole idea went down in flames.
But today, we have evolved from power to superpower to the world’s sole hyperpower, where no nation can realistically expect to withstand our full power and fury for very long. Speaking purely militarily, we are a whole troop of 2,000-pound gorillas. The full range of our military options would be utterly incomprehensible to those who wrote the Constitution.
So, should the War Powers Act be revisited? Absolutely. But not in the heat of passion currently roused by the war in Iraq. Congress, as a fully equal third of the United States government, definitely has a role to play in foreign policy — and, quite possibly, more than the Constitutionally-mandated powers of confirming ambassadors, ratifying treaties, and declaring wars.
These two issues deserve attention, careful thought, and polite debate.
Such a pity that the current passions guarantee the first, and forbid the latter two.