Sandy & Eugene's Challenges

[Allan Ides]

1. On the question of the constitutionality of the resolution, I have
two responses.  First, I believe the resolution is unconstitutional to
the extent that it sanctions a future war contigent only the the
judgment of the President.  Unfortunately, I do not have the text of
the resolution in front of me, but as I recall it places the judgment
of whether to place the US at war with Iraq in the President alone with
rather flimsey requirements of findings re diplomacy and a 60 day
reporting provision.  Although I would not require Congress to use any
magic words, the War Declaration Clause ought to mean at least that
Congress will make the ultimate judgment on whether to make war in all
but the most dire emergencies.  Certainly, the nice distinctions drawn
by Hamilton re the commander in chief powers are meaningless if the
decision to make war can be delegated in such a standardless fashion.
(The generic War Powers Act has this same flaw.) I realize, however,
that I come up against against a significant body of historical
practice to the contrary, especially so in the last fifty years, and
with increasing frequency since 1980.  The scope of constitutional
principle in this sphere is created by perceptions and practice, and
the current popular perceptions and practice go against what I believe
is the "better view."  So, in truth, my argument re constitutionality
is a political argument, in much the same fashion as was Sen. Byrd's
argument against passage of the resolution.  But this is not politics
as usual, but transformative politics that focus on fundamental
principles of our system of government.  I just have to admit that to
this point, I'm on the losing side of this transformation.  There is a
positive note.  Byrd "dissented" on constitutional grounds and perhaps
in time his dissent will be seen as not only the better view but the
popular and politically effective view.  In other words, political
constitutional talk is healthy for the body politic.  It was also, I
think, a move in the right direction that Bush was forced to go to
Congress despite his administration's adamant denial of any such
obligation.  This is at least a small precedent establishing that
Congress is expected to do something, albeit a baby step.

2. This takes me to my second point, I don't think the resolution is
unconstitutional in a legal sense, i.e., as a matter of constitutional
law.  I fairly confident that the courts of this country would not
declare the resolution or action taken pursuant to the resolution
unconstitutional.  Whether the courts got to the merits or relied on
the PQ doctrine, it seems pretty clear that, realistically speaking,
they would find no judicially enforceable principle here. Hence, as a
matter of constitutional law, i.e., as a matter legally enforceable
principle, the give and take between the President and Congress in this
sphere is based on judgment and practice, hence, underscoring of the
importance of the political debate over the meaning of the Constitution.

3. On the imminence point.  I'm a little surprised that the comments so
far have assumed there to be a universally applicable imminence
requirement in the context of unlawful advocacy.  Although the academy
may have, the Court has never overruled Dennis v. U.S.  In fact, the
Brandenburg case cites Dennis as a precedent.  I have long believed,
and continue to believe, that the rather soft Dennis balancing formula
is still on the shelf.  Brandenburg and like cases involved
overt "threats," while Dennis involved the prosecution of a covert
conspiracy.  This is precisely the point that J. Jackson makes in his
Dennis opinion (though obviously he doesn't refer to Brandenburg). It
is possible to measure imminence in the context of a hotheaded speech;
but at least somewhat more difficult to do so with respect to the plans
of a secret organization.  Please understand, I'm not "advocating" the
Dennis formula, just suggesting that it may well be put in play if this
war on terrorism continues.

4.  Non Al Qaeda Hypotheticals.  Eugene asked Sandy for a hypo that
would involve non-military groups.  Do we really need a hypo when our
government is already prosecuting charitable organizations that are
alleged to have aided terrorist groups?  And "puny anonymities" that
can best be characterized as Al Qaeda wannabees?

5.  Finally, with respect to faith in the judiciary.  If this war heats
up and is not over quickly, I have no confidence that judges will come
to the rescue of our civil liberties.  Korematsu says pretty much
everything that needs to be said on that subject.  This has nothing to
do with being liberal or conservative.  Black wrote the majority
opinion, which was joined by Bill Douglas.  Robert Jackson dissented.
And I certainly wouldn't place too much hope in Anthony Kennedy.  I
have this image of Princess Leia bending over R2D2, "Help us Tony
Kennedy.  You're our only hope."  If so, the rebellion is doomed.

Allan Ides