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The latest act of our constitutional dictator

By Jack M. Balkin

Can there be any serious doubt that the US attack on Syria is, to use a perhaps old-fashioned term, an "act of war"? And can there be any serious doubt that the current understanding of the President's power, presumably based on the Commander-in-Chief clause, is that he is entitled to initiate acts of war on other countries more or less at will so long as they're not very important countries who are deemed to have the ability to retaliate against the territorial US? So why, exactly, should we not view this as one more example of the de-facto constitutional dictatorship that we live under, perhaps courtesy of the Constitution (assuming that Bush's actions in ordering the attack are constitutional), perhaps not (if one believes, for example, that the assent of the entire Congress is a predicate condition for "going to war" with a country with whom we are formally at peace? George W. Bush is, as the saying goes, the "only president we have" at the present time. But a week from tomorrow that will not be true except in the most formal sense: I.e., We the People (assuming one gives any credence to that hoary term) will have spoken and selected one of two candidates who are competing with one another at the present moment over who is more truly anti-Bush. So why exactly is it a good idea that the discredited Mr. Bush will have the unilateral ability to engage in provocative and war-like actions vis-a-vis any country he wishes for another 10 weeks? Is it his experence? His wisdom? His propensity to listen to trustworthy advisers? Do we expect him, incidentally, to "consult" with the People's Choice after November 4 and perhaps even to be guided by the PC should he happen to disagree with what Mr. Bush prefers to do? Should the PC be prepared to explain to the world that Mr. Bush does not in fact any longer "represent" the American people but that we have the misfortune to live under a Constitution that leaves him in full possession of all legal powers of the presidency for another 10 weeks?

Full post as published by Balkinization on October 28, 2008 (boomark / email).

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