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"Never Again"--A Commentary by Prof. Bruce Ackerman


(This essay was originally published in the May 2003 issue of the American Prospect.)

Never Again
By Bruce Ackerman, Sterling Professor of Law and Political Science

A healthy constitutional system learns from its mistakes, and we have made a big one. Congress should never again write the president a blank check to make war. The precedent left by the first President Bush has cast a very large shadow on this present crisis. Before making his war in the Persian Gulf, Bush Senior first gained the consent of the United Nations Security Council before turning to Congress for authorization. These actions presaged two great principles for the new world order emerging out of the Cold War.

The first was the principle of double veto: There could be no major war without the consent of both Congress and the United Nations. The second was the principle of Congress' last say: Only after the UN Security Council established that war was consistent with the UN Charter would Congress decide whether it was in the best interests of the United States. This time around, President Bush asked Congress to sacrifice the second principle to save the first. He argued that unilateral war-making authority from Congress was a vital bargaining chip at the United Nations. If we hoped to save the precious double-veto principle established by his father, the House and Senate would have to act first.

This hope has turned to ashes, and we have been left with a terrible precedent. The premature congressional decision has distorted the process by which the nation made the choice for war.

For starters, it endowed the congressional debate with an Orwellian quality. The authorization of war typically raises a profound but straightforward question: Are you for it or against it?

But suddenly lawmakers could vote for war and say they were voting for peace -- they were merely providing the president with a much-needed bargaining chip. Rather than a solemn act of accountability, the vote turned into a buck-passing operation.

With Congress out of the picture, public-opinion polling took on a weight it should never have been asked to assume. The pollsters rushed to the phones immediately after the president's speech threatening war if Saddam Hussein didn't leave Iraq within 48 hours. By the next morning, they breathlessly reported that two-thirds of their 483 respondents supported the president. But this is hardly the same thing as a deliberate decision by Congress.

Our Constitution makes no mention of pollster democracy, and for good reason. Recent research reveals, for example, that half of Americans believe that at least one Iraqi was among the hijackers on September 11.

Given such pervasive mistakes, it is crucial to insist that our Constitution is devoted to the principles of representative democracy. Great decisions should not be made by the will of one man and ratified by pollsters. They should emerge after public opinion is filtered through the deliberations of a multiplicity of representatives.

But in the absence of Congress, opponents of the war had nowhere else to go but the streets. The political impact of these demonstrations was quite impressive, but it led to a constitutional impasse rather than constructive engagement. There was no forum available for politicians to calibrate the rising force of public opinion against the iron will of a resolute president. The lights had gone out on Capitol Hill.

We have moved a long way in a decade -- from two vetoes and Congress' last say to a congressional blank check, pollster democracy and political demonstrations that lead nowhere. But perhaps the gamble was worthwhile. After all, there was at least a chance of preserving the principle of the double veto. And if Congress' premature authorization had successfully preserved the role of the Security Council, this might well have been a price worth paying.

But, alas, the gamble didn't work. The president has not only failed to meet his father's diplomatic standard, he has also severely damaged the authority of the UN Charter over matters of war and peace. This is deeply regrettable, but we can't allow it to damage the U.S. Constitution as well.

With the double veto destroyed, we must insist on the principle of the last say. In the future, Congress should insist that the president first go to the international community and gain as much support as he can for any war initiative. Only then should he return to the American people, as represented by Congress, to determine whether war is justified by the national interest and the opinion of humanity.

These constitutional principles should not be swept away by the entry of American troops into Baghdad. The Constitution will confront many more tests in this era of small wars. Presidential leadership, backed by pollster democracy, will not sustain constitutional legitimacy over the long haul.