If the Bush administration has an ideology, it is that of executive power. John Yoo, now a Berkeley law professor, formerly a “mid-level attorney in the Justice Department’s Office of Legal Counsel,” but one who wielded tremendous influence, and who was directly responsible for shaping the Bush administration’s policy on torture, argues in a new book that the executive branch should have nearly unlimited power in declaring and waging war.
Not that I had much confidence in Yoo’s legal acumen to begin with, but a recent review by David Cole casts serious doubt on his qualifications to be teaching legal theory to undergraduates. It seems that one of Yoo’s main arguments for granting such unlimited power to the executive is linguistic. An originalist, Yoo believes it is possible to interpret the constitution according to the intentions of the framers. (Not all originalists rely on intent, as this recent Chicago Law Faculty blog post makes clear.)
Yoo boldly asserts that a deeper historical inquiry reveals a very different original intention—namely, to endow the president with power over foreign affairs virtually identical to that of the king of England, including the power to initiate wars without congressional authorization. He argues that the power to “declare War” given to Congress was not meant to include the power to begin or authorize a war, but simply the power to state officially that a war was on—a statement that would be “a courtesy to the enemy” and would authorize the executive to exercise various domestic wartime powers. At most, Yoo contends, the clause giving Congress power to “declare War” was meant to require congressional approval for “total war,” a term Yoo never defines, but it left to the president the unilateral decision to engage in all lesser hostilities. He quotes dictionaries from the founding period that defined “declare” as “to pronounce” or “to proclaim,” not “to commence.” He points out that the Constitution did not give Congress the power to “engage in” or to “levy” war, terms used in other constitutional provisions referring to war.
One of the worst writing practices I must deal with as a teacher is the tendency of some students to start every paper with a quote from the dictionary. Dictionaries are often poor guides to how words are used in specific contexts. As Cole points out:
Dictionary definitions of “declare” also offer little guidance, since Yoo ignores that there is a world of difference between someone’s “declaring” his or her love for wine or Mozart and a sovereign’s declaring war. “Declare War” was in fact a legal term of art, and there is evidence that it was used at the time to mean both the commencement of hostilities and a statement officially recognizing that war was ongoing. The use of the word “declare” rather than “levy” or “engage in” simply reflects the division of authority under which the president actually levies—or carries on—the war once it is begun. Indeed, the framers famously substituted “declare” for “make” in enumerating Congress’s war powers for just this reason. And the framers had no reason to require the president to consult with Congress before going to war since it was Congress’s decision, not the president’s.
I usually tell my students that if they are going to quote a dictionary it should at least be the OED, but in this case reading a little Austin would have helped.