The obstacles to litigating the grave legal questions arising from the United States' military operations against Iran can be traced to the Court's refusal to confront similar questions about Vietnam.
Okay, one thing you forgot that changes everything. The 1965 Gulf of Tonkin resolution. That was the equivalent of a declaration of war. Thus vietnam, while badly done and possibly ill-advised. was totally legal.
"But for as much mischief as Sullivan allows, consider me one of those who thinks we’d be a lot worse off without it than we are with it."
It doesn't have to be either/or, and Black's concurrence points to a much cleaner approach: absolute immunity for speech about public officials' conduct of their duties, and that's it.
The squishy "public figure" test has become an essentially self-fulfilling defense for major media outlets (e.g., "if NYT is talking about you, you're by definition a public figure"); an objective guardrail limiting the doctrine to public officeholders (could also consider including declared candidates for office) would eliminate the overwhelming majority of the mischief Sullivan allows without really undermining its core purpose of holding the government to account.
Sullivan's standards are considerably better than absolute immunity for any speech. As SCOTUS emphasized in Sullivan, the standards stated in Sullivan are largely consistent with the statute enacted in 1798 that expressly protected bringing federal officials “into contempt or disrepute” or “excit[ing] against them” the “hatred” of the “people” unless such criticism was proved (beyond a reasonable doubt) to be both “false” and “malicious.”
That statute (the Sedition Act of 1798) became infamous in large part because executive and judicial officers viciously violated the plain text of that law (people were prosecuted for speech that was not proved (with any evidence) to be either false or malicious). It also was infamous because it constituted blatant viewpoint discrimination regarding public men and public measures. But SCOTUS in Sullivan applied the same or analogous standards (without the viewpoint discrimination) in protecting speech unless it was proved to be (1) a falsehood and (2) asserted with actual malice.
Mere months after Sullivan (in Garrison v. Louisiana) SCOTUS again issued a unanimous opinion elaborating further on the freedom of speech. SCOTUS even more strongly emphasized that only truthful statements (not able to be proved factually false) were even potentially absolutely immune. Our Constitution “absolutely prohibits” any content-based “punishment of truthful criticism” of any public servant’s public service. “Truth may not be the subject of” any type of content-based “sanctions” “where discussion of public affairs is concerned,” so “only” those “statements” that have been proved to be “false” may be punished with “either civil or criminal sanctions.”
Even so, even some truthful speech can be punished, e.g., for violating secrecy laws or if such speech constitutes a criminal threat or intimidation.
Name a single country you consider to be a successful military power that allows any of its judges, let alone a judge as crazy and unhinged and ideological as William O. Douglas was in the last stages of his career and life, to enter injunctions against the use of its military power.
I don't like the invasion and bombing of Cambodia either, but this is outside the competence of judges and the legal system and the result of allowing judges this power is that our politicians would ignore their orders and eliminate judicial review, because judges cannot run the military.
Yes. The only proper solution to Congress' failure to do its job is to demand that Congress do its job. Asking the other branches to step in to fill the void merely compounds the problem.
Dilan, we didn't allow mere judges to decide this issue. The People decided how this issue must be handled (by judges, as well as by Presidents and Congress). The Constitution is strikingly straightforward regarding this particular issue.
The War Powers Resolution of 1973 expressly reflects the Constitution's own express provisions:
"The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."
In Article I, the People vested in Congress, alone, the power to do much more than merely declare war. “All legislative Powers” that the People “granted” to the U.S. government were “vested” exclusively in “Congress.” The People expressly granted to Congress particular legislative powers, including the power to “declare War, grant Letters of Marque and Reprisal [authorize privateering], and make Rules concerning Captures on Land and Water” and to “define and [authorize] punish[ing] Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.”
The powers of Congress also include authorizing executive action that is necessary and proper to execute the powers granted to Congress (and prohibiting executive action that isn’t necessary or isn’t proper). That is why Article I expressly emphasizes that “Congress shall have Power” to “make all Laws [that are] necessary and proper for carrying into Execution [all Congress's] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof” (including the executive and judicial branches).
In a nutshell, the People vested the power to choose to start a war (risk or sacrifices our lives, liberty and property) EXCLUSIVELY in those of our representatives whom we the People elect directly. The People reserved to ourselves the power to remove the entire House of Representatives and 1/3 of the Senate every two years. So if they choose to involve us in a war that we don't want, we (the people) can vote to remove them fairly promptly.
For reasons that are vital to our Constitution and our safety and liberty, the People in Article II expressly “vested” in the “President” only “executive Power.” The People also expressly limited all executive power to the President’s duty to “take Care that the Laws be faithfully executed” and “faithfully [serve to] preserve, protect and defend [our] Constitution.” That’s it. Nothing in our Constitution gave any president any power to start wars or other conflicts of his own choosing.
Regarding acts of war, “executive Power” means merely the power to “be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” As Alexander Hamilton emphasized in Federalist No. 69, this “authority” actually “amount[s] to nothing more than” making the President the “first General and admiral” of the U.S., in striking contrast with the power “of the British king [which] extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution [were vested exclusively in] the legislature.”
Whenever the President exercises "executive Power" as the "Commander in Chief" to commit acts of war, he obviously and necessarily almost always is required to act under express authorization by Congress. An exception applies to the President to the same extent as it applied to state governors (especially from late 1788 through the early 1800’s when individual states were much more powerful than the national government). Article I clarified that any “State” even “without the Consent of Congress” may unilaterally “engage in War” if “actually invaded, or in such imminent Danger as will not admit of delay.” Only if the U.S. is being “actually invaded” or it is “in such imminent Danger as will not admit of delay” does our Constitution permit the President to commit acts of war without obtaining authorization from Congress.
The foregoing restrictions do not mean that the President must remain silent. He may and must make the case to Congress when he believes acts of war are necessary. In Article II, the People commanded the President to provide information and make recommendations: “He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.” If the president thinks acts of war are necessary and expedient, he must make the case to Congress. If he needs help, “he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”
The "People" is BS. The Constitution was enacted and ratified by a bunch of elites. That doesn't make it not law. But you don't get to appeal to any mythical "People" here. It's positive law, written by the rather unrepresentative folks who wrote it. (For example, I consider Black people the "People", and they had no say whatsoever in what the Constitution said.)
In any event, Article III limits judicial power to cases and controversies, which is perfectly consistent with a political question doctrine, and we've had the doctrine since the beginning of the Republic and the "People" haven't risen up and demanded a constitutional amendment to eliminate it.
The rest of your comment is just irrelevant to the issue of whether judges should have any power to enjoin military actions.
Dilan, people saying what you think is the precise problem. People like you don't respect what our Constitution says because you don't like something that you (wrongly) merely think it means.
Nothing you asserted can in any way mitigate the fact that "the People" acted as the supreme legislative body in the U.S. (and the only legislative body for the U.S. in 1788) to establish "the supreme Law of the Land" and to establish that our Constitution is the paramount law of the land (as Chief Justice Marshall writing for SCOTUS emphasized in multiple respects in 1803 in Marbury v. Madison).
Complain all you want that laws permitting the punishment of murder were written by White men and historically enforced disproportionately against Black men in some parts of the U.S., but that in no way means the law "is BS." It's still the law.
Nothing you did (or can) argue can change the controlling legal effect of our Constitution. As Chief Justice Marshall writing for SCOTUS emphasized in Marbury v. Madison, that's the point of having a constitution that was put into writing and ratified by the People.
Dilan, you're missing rather remarkable (and remarkably huge) parts of our history if you really believe that Black people "had no say whatsoever in what the Constitution said." Since the early 1860's, Black people or White people representing Black people have had quite a say in who gets elected to federal office, and those people irrefutably have had quite a lot to a say about what our Constitution says. That's exactly why multiple amendments (starting with the 13th) expressly protected people who had been subject to discrimination based on color or race.
Dilan, what makes you think that the way "Article III limits judicial power to cases and controversies" is "perfectly consistent with a political question doctrine"?
Article III expressly emphasizes the opposite of the political question doctrine: "The judicial Power shall extend" to "Controversies to which the United States shall be a Party."
Article I also expressly emphasizes that Congress has the power (and duty) to “make all Laws [that are] necessary and proper for carrying into Execution [all Congress's] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Congress has the power to make law governing the executive and judicial branches, so the judiciary necessarily has the power to "say what the law is" governing executive and judicial officers.
Dilan, what makes you think that the way "Article III limits judicial power to cases and controversies" is "perfectly consistent with a political question doctrine"?
Article III expressly emphasizes the opposite of the political question doctrine: "The judicial Power shall extend" to "Controversies to which the United States shall be a Party."
Article I also expressly emphasizes that Congress has the power (and duty) to “make all Laws [that are] necessary and proper for carrying into Execution [all Congress's] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Congress has the power to make law governing the executive and judicial branches, so the judiciary necessarily has the power to "say what the law is" governing executive and judicial officers.
Dilan, your assertion that you "consider Black people the 'People' " makes me think you think our Constitution doesn't say that Black people are part of the people. But it does. So why not help people stop seeing color and start seeing the Constitution for what it's worth. All Americans should see what our Constitution and its history tell us about how to see who “We” are.
I will say (and invite anyone to try to prove me wrong) that no one really understands our Constitution until they understand the significance of the following steps.
Our first words as one people of one nation emphasized that “We” are one people, i.e., “We the People of the United States.” “We the People of the United States” to “secure the Blessings of Liberty to ourselves and our Posterity” did in June 1788 “ordain and establish this Constitution for the United States of America.” (Preamble). We the People expressly established “the supreme Law of the Land” and required “all executive and judicial Officers" and all legislators "of the United States and of [all] States” to “support [our] Constitution” as the paramount law in the supreme law of the land. (Article VI).
At least as important, the last words of our original Constitution tell us when and how we started to become one people (by law). Significantly, it wasn’t all at once. That self-evident truth is crucial to understanding who we are. From the founding of our republic on June 21, 1788 to this very day, who we are never was decided by or for everyone all at once. This incremental identification of “the People” was a pattern that was repeated throughout much of our history.
With the last words of our original Constitution, the People declared and established who “We” were initially and how “We” became “the People.” Article VII consists of a single sentence declaring how the land and people of the United States were to be established and identified: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution” by the People “of the States so ratifying the Same.”
Ratification necessarily depended upon voters and voting, and ratification by the ninth state was accomplished on June 21, 1788. So at that time “We the People” were the voters of only those 9 states. By the end of July 1788, “the People” included the voters of two more states (Virginia and New York). The voters of the last two states (North Carolina and Rhode Island) held out for a bill of rights, so they did not become part of “the People” until after the first 10 amendments (and two others that were not ratified) had been proposed for ratification in September 1789.
One of the first improvements on the original Constitution established and emphasized that “No person” (citizen or not) can be “deprived of life, liberty, or property” before being afforded all process of law” that is “due.” (Amendment V).
But everything in our early Constitution obviously wasn’t nearly enough to protect all the people from some people who were inclined to abuse other people. So in the late 1860’s the People established and emphasized exactly who “We the People” are: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof” are “citizens.” (Amendment XIV, Section 1).
After We the People identified ourselves (citizens), we declared that “No State” has any power to purport to “make or enforce any law” that does or would “abridge [any] privileges or immunities of citizens of the United States” or to “deprive any person” (citizen or not) “of life, liberty, or property” before affording such person all “process of law” that is “due” or to “deny to any person” (citizen or not) of “the equal protection of the laws.” (Amendment XIV, Section 1).
But even all the foregoing was not enough to cause all the People to cease abusing some of the People. So the People expressly identified and expressly rejected particular evils, including specifically discrimination on account of race, color, previous condition of servitude, sex, wealth or age. Each time, we were more clear about who "We" really are.
“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” (Amendment XV).
“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” (Amendment XIX).
“The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax,” i.e., on account of wealth. (Amendment XXIV).
“The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” (Amendment XXVI).
All those provisions of our Constitution (and more) providing for and protecting the right to vote serve a particularly powerful purpose. I never understood how until I read something that many who wrote or ratified our Constitution had read.
Back in 1754 Montesquieu, in “The Spirit of the Laws” emphasized the reason for and meaning of all the foregoing. Montesquieu highlighted (and many of the people who wrote and ratified the foregoing parts of our Constitution understood) that the right to vote isn’t about any mere right, much less about mere voting. The right to vote is most essentially about sovereign power. Suffrage is the quintessential speech of sovereigns under our Constitution.
“In a democracy the people are in some respects the sovereign, and in others the subject” (of the laws). “The freedom of every citizen constitutes a part of the public liberty; and, in a democratical state, is even a part of the sovereignty [of the people].” “[T]he enjoyment of liberty, and even its support and preservation, consists in every man’s being allowed to speak his thoughts and to lay open his sentiments.”
The “exercise of sovereignty” by citizens is most clearly “by their suffrages, which [is an expression of citizens’ sovereign] will: [by voting and other exercises of the freedom of expression] the sovereign’s will is the sovereign himself. The laws, therefore, which establish the right of suffrage, are fundamental to this government” so it is “important to regulate, in a republic, in what manner, by whom, to whom, and concerning what, suffrages are to be given.”
Montesquieu also taught another lesson in The Spirit of the Laws that seems to have been reflected (eventually) in our Constitution in the Reconstruction Amendments (XIII-XV). Inasmuch “as all men are born equal, slavery must be accounted unnatural.” Even if slavery is necessary for some period of time, "it is contrary to the nature of things that the slavery should be perpetual. The people enslaved ought to be rendered capable of becoming subjects" (or citizens in a republic). The reason is that "[t]here is no such thing as a right of reducing people to slavery" except when doing so is "necessary for the preservation of the conquest. Preservation, and not servitude, is the end of conquest; though servitude may happen sometimes to be a necessary means of preservation."
The language in the supreme law of the land defines who "We the People" are and it establishes that the People constitute the highest sovereign power in this nation. Our own Constitution dictates that we see, respect and nurture each other as equal sovereigns and that we not discriminate on account of race, color, previous condition of servitude, sex, wealth or age (after 17).
"Name a single country" is not a valid form of argument. And there's an obvious example: The U.S. ... deny that and you have a strictly circular argument.
As a retired emergency medicine physician I'd like to offer a different perspective. I didn't spend my workdays searching for interesting patients to whom I could offer medical care. The emergency department reality is we have to manage everybody who comes to our door. I'll admit that sometimes I wondered why I "got chosen" to care for somebody so ill but couldn't waste time dwelling on that if I was to do the best I could for that person. Excusing myself from a difficult issue was abandoning the patient and that was never a possibility. Thus, when I hear of people who have risen to important levels of society and are tasked to manage hard problems, like our Supreme Court Justices or Congresspeople, sidestepping an issue because it is too hard or might cause a loss of power, or whatever, I feel abandoned by them. We the People need to hold them to a higher standard.
Our Constitution and federal law do hold them to a higher standard. That's the point of the oath requirement in Article VI and in 5 U.S.C. 3331 (promising to "support and defend the Constitution of the United States against all enemies, foreign and domestic" and to "bear true faith and allegiance to the [Constitution]").
Chief Justice Marshall (writing for SCOTUS) in Marbury v. Madison in 1803 emphasized the meaning of the language from Article VI of our Constitution regarding "the supreme Law of the Land" and the oaths (duty) of public servants "to support [our] Constitution."
"The government of the United States has been emphatically termed a government of laws, and not of men."
"It is emphatically the province and duty of the judicial department to say what the [existing] law [actually] is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. . . . [T]he court must determine which of [any] conflicting rules governs the case. This is of the very essence of judicial duty."
"[I]t is apparent, that the framers of the constitution contemplated [our Constitution], as a rule for the government of courts, as well as of the legislature. [That is precisely why the Article VI and federal law] direct [all federal] judges to take an oath to support [our Constitution]. This oath certainly applies, in an especial manner, to [public servants’] conduct in their official character. . . . [The reason each] judge swear[s] to discharge his duties agreeably to the constitution of the United States [is] that constitution forms [the supreme] rule for his government."
"[I]n declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank."
"Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by [our Constitution]."
"[T]he constitution is to be considered, in court, as a paramount law. . . . The constitution is [necessarily the] superior, paramount law, unchangeable by ordinary means. . . . Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void."
The same principles and logic, above, establishing that any law that is “repugnant to the constitution is void” (even if it was made either with the President’s approval or with the approval of two-thirds of each house) necessarily confirms that any decision or opinion by any quantity or quality of judges that is “repugnant to the constitution is void.” No purported “precedent” or purported “doctrine” made by any quantity or quality of judges (much less any mere judge’s mere opinion) can lawfully contradict, override or overrule our Constitution. Any presumption or pretense to the contrary is not the rule of law. It is rule by outlaws. It is rule by outlaws who are enemies of the Constitution, violating their own oaths to support and defend our Constitution against all enemies, foreign and domestic.
Thank you for all of that! I agree but in the end they are just words and words are interpreted by humans full of intrinsic biases. And we've seen how so many oath swearers in the Trump administration including Trump himself have dodged the mandate and responsibility of their sworn oaths. We the people can choose to vote out our elected officials. Judges with lifetime appointments are immune from that remedy.
Paul, I appreciate your sentiments. But the words of our Constitution (and SCOTUS in Marbury v. Madison about our Constitution) aren't mere words. They're law. They are words that represent the paramount law of the land, and they were created by the People as the supreme legislative body for the United States to govern all our public servants.
Even so, you're right that many of our purported public servants are little (if at all) better than common con men. That obviously applies especially to Trump, as well as to at least a few SCOTUS justices. An expression that you used illustrates the problem.
Federal judges have conned the people into believing that judges have "lifetime appointments" or "life tenure." I believe you believe what you said, but judges (e.g., Chief Justice Roberts) who say such things are lying. They know such assertions are false, and they assert them to deceive people into believing them so that people just won't even think about how to hold judges accountable for their misconduct.
The Constitution, itself, and some of the best and brightest people who helped write it and get it ratified tell a strikingly different story. Nothing in our Constitution granted any public servant a term for "life."
The multiple parts of the plain text of the Constitution (and multiple parts of the Federalist Papers explaining the purpose of provisions of our Constitution) emphasize that all federal judges should be judged by their behavior and they may hold their offices only during good behavior. Article III emphasizes that all federal "Judges, both of the supreme and inferior Courts, shall hold their Offices [only] during good Behaviour."
Only federal “judges” who “behave properly, will be secured in their places for life.” Federalist No. 79 (Alexander Hamilton). “The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior.” Federalist No. 39 (James Madison). Ours is “a republic, where every magistrate ought to be personally responsible for his behavior in office.” Federalist No. 70 (Hamilton).
Good behavior necessarily means fulfilling their oaths of office. The point of such an oath (like the oath to testify truthfully) is to prescribe mandatory behavior. The Constitution commands that all state and federal legislators "and all executive and judicial Officers, both of the United States and of [all] States, shall be bound by Oath or Affirmation, to support this Constitution." Federal law made in pursuance of our Constitution (5 U.S.C. 3331) does the same even more emphatically. That's because the first, foremost and constant duty of every public servant (and every lawyer) is to support our Constitution.
Our Constitution also commands that "[t]he President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of" any "high Crimes and Misdemeanors." And current federal law (18 U.S.C. Sections 241, 242 and 371) does identify such criminal misconduct. State laws also do (or can be made to) authorize state prosecution for analogous crimes.
Legislators (state and federal) and prosecutors (state and federal) need to consider how executive and judicial officers can or should be prosecuted for committing such crimes and others. U.S. legislators also need to make laws governing impeachments of executive and judicial officers so that they are more like criminal proceedings than mere political proceedings or theater.
In a way, it's our own fault that we don't already have such laws. Article I of our Constitution famously expressly emphasized that Congress has the power to "make all Laws" that turn out to "be necessary and proper for carrying into Execution [all Congress's] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." So the People clearly vested in Congress the power to make laws governing all powers that we vested in any public servant in the executive or judicial departments.
Paul, you're so right that "We the People need to hold them to a higher standard." Nothing I wrote detracts at all from that.
As James Madison (the Father of the Constitution) emphasized in Federalist No. 48 (https://guides.loc.gov/federalist-papers/text-41-50#s-lg-box-wrapper-25493415), we never can merely "trust to these parchment barriers against the encroaching spirit of power." Any "mere demarcation on parchment of the constitutional limits of the several departments [legislative, executive and judicial], is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands."
The reason the Philadelphia Convention proposed the original Constitution was that by 1787 "experience assures us, that the efficacy of [any paper] provision [restraining power] has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government."
That's why "the People" were included expressly in the divisions of power and the duty to represent the people in our Constitution. That's the principle that permeates the Preamble, Article VII (re: how our Constitution was "established") and the First and Second Amendments.
Those who argue (absurdly) “that these legal constraints [in the supreme law of the land] are irrelevant [merely] because they are not judicially enforceable—that is, because it’s virtually impossible for anyone to walk into court and use these legal arguments to stop the U.S. operations” have their heads stuck, at best, in the sand.
Judges’ mere failure or refusal to fulfill their oaths to support and defend our Constitution against all domestic enemies hardly renders the supreme law of the land irrelevant. At most, it merely highlights that more law is necessary and proper to regulate the powers vested in the executive or judicial branches.
For that very reason, our Constitution expressly provides for new law to be made because experience reveals it to be necessary and proper (it vests in Congress the power to “make all Laws” that are “necessary and proper for carrying into Execution [all Congress’s] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”). Our Constitution also reserves to voters the power to replace legislators who fail to enact legislation that is necessary and proper.
Congress can and should enact laws, for example, (1) limiting the power of the president to pardon crimes for which he could be impeached, convicted and removed from office, (2) requiring process of law for impeachments and trials (like Congress did for civil and criminal trials) and (3) require impeachment, conviction and removal of executive or judicial officers who commit high crimes or high misdemeanors.
This discussion and reminder of the events leading up to the disaster of US involvement in the Vietnam War – perceived by others as the American War or the last stage of Vietnam’s War of Independence from its French colonial masters – raises the question of the similarities between the “Best and the Brightest” (the title of David Halberstam’s book) and the “Worst and the Dumbest”, one characterization of the current leaders in Washington, DC. In both cases ignorance of the foreign players, their histories and motivations, and the use of lies (or to be generous horrendous misunderstandings) to justify US intervention lie at the heart of the matter. In Vietnam, escalation of the conflict despite its growing evidence of failure led to increasingly disastrous decisions , often overriding the advice of career diplomats and others who were familiar with the histories and experiences of the Vietnamese and other foreign actors, notably the many centuries of relations between Vietnam and China, and the determination of the Vietnamese (like the American colonies) to throw off the yoke of overseas domination.
As I recall, the Gulf of Tonkin resolution was passed by Congress almost unanimously as the legal basis for war, a few days after an attack on US warships by the North Vietnamese that never actually happened. I admit I am not sure when this fact became apparent or was known to the President and others at the time, or whether there was any attempt to promptly correct the misrepresentation when it became known.
Under Article I, Section 8 of the Constitution, an increasingly abused foundational document – am I correct in this “originalist” interpretation ? - Congress has an exclusive, constitutional power to initiate a legal state of war between the United States and another nation. Perhaps the current assaults on Iran can be construed by some abstruse or contorted legal analysis as falling short of a state of war, as being merely a “special military operation” to quote a contemporary precedent from a foreign regime, or a defensive necessary preemptive response to a clear and present existential threat. But otherwise to most of us if it kills like a war (civilians and people of all ages as well as military), and targets and destroys the infrastructure of a society like a war (food supplies, sources of energy, health care and educational facilities etc.), then it’s a war.
It is surely the responsibility of Congress to exercise this right, although today’s members of Congress are incapable or unwilling to see any violation (of the Constitution), hear about any violation, or speak or vote against any violation in sufficient numbers to be effective. And the President is unrestricted in his use of the “Get Out of Jail Free” card of claiming there is an Emergency which enables, or even requires him to take whatever steps he wants using his unique and in some people’s views divinely blessed - at least by the Christian God, even if not by the Allah that most people in the region profess their allegiance to - “knack,” or unique insights and knowledge , even if they involve contradictory justifications and explanations from one day or even hour to the next. They are simply further proof of his unique skill and genius in keeping enemies of America nonplussed and off balance. And friends too, but that is only an unfortunate , regrettable side effect, and these friends are not being supportive anyway. Where is Winston Churchill whe we need him? He did champion the “unconditional surrender” of the Axis powers to end WW2. And he also made the historic “We shall never surrender” speech to the House of Commons in June, 1940 when Britain stood alone, and the US Ambassador Joseph Kennedy was convinced that the Nazis would soon be in London.
It would be helpful if the Supreme Court had over the years weighed in with some definitive rulings about what is legal and what is illegal about the procedures through which (or that have been ignored) momentous decisions have been made and acted upon that have led to the country’s entry into wars. I would not expect the Court to be a leader in the matter of War Powers. But I would also not have expected and deplore its decision about the absolute immunity a President enjoys for actions taken while in office that lie within core constitutional powers, and presumptive immunity for all official actions (what is covered by the word “official” in practice is unclear - does it cover actions for which he was convicted when not President as well as actions involving the use and/or withdrawal of federal government resources and now the assualts on Iran?). The immunity decision reinforces any “Get Out of Jail Free” card with a “Stay Out of Jail Free” trump card (no pun intended).
Martyn, what made you use the expression "state of war"? Federalist No. 15 used that expression to shed light on the meaning of the power to declare or wage war.
All federal criminal law is, in essence, a authorization of the use of force that courts can enforce. All federal criminal law expressly authorizes the use of force to impose punishment (usually a fine or imprisonment or both, but sometimes death). Federalist No. 15 clarified that war is meant to be the mere means of executing an exercise of legislative power (supporting our Constitution) authorizing military force when our courts lack the power to support our Constitution the way the president can by acting as commander in chief:
"Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the COERCION of the magistracy, or by the COERCION of arms. The first kind can evidently apply only to men; the last kind must of necessity, be employed against bodies politic, or communities, or States. It is evident that there is no process of a court by which the observance of the laws can, in the last resort, be enforced. Sentences may be denounced against them for violations of their duty; but these sentences can only be carried into execution by the sword. In an association where the general authority is confined to the collective bodies of the communities, that compose it, every breach of the laws must involve a state of war."
Later, in Federalist No. 69, Alexander Hamilton emphasized:
"The President is to be commander-in-chief of the army and navy of the United States" which "in substance" actually "amount[s] to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while [the authority and power] of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by [our] Constitution" is vested in "the legislature."
I admit I am not as attentive, being a non-lawyer, as I might or should be in thinking about whether the same English word or phrase used in the late 18th century might have a different connotation or have been used powerfully to make a different point, such as you cite, than in the 21st century. My use of the phrase "state of war" was triggered by claims that a war is not really a war (Putin about the invasion of Ukraine, and Senator Mullin, the equally (un)qualified nominated successor to Kristi Noem as Secretary of Homeland (In)security), about the war on Iran, or in other words that the actions of respectively Putin and Trump had put neither Russia nor the US into a state of war.
Your quote from Federalist 69 emphasizes (at least to me) how abominable and terrifying is the 2025 ruling of the Supreme Court about the immunity of the President. The British Monarchy has moved on, or been forced to move on since 1776, while the American Presidency seems to moving in the opposite direction.
Martyn, I wasn't objecting your use of "state of war." I was supporting your use of that expression by showing that it also had been used by some of the best and brightest of the people who wrote or ratified our Constitution.
I also was curious about whether you had read something about this issue that I should read.
Jack, That is the first time I have been mentioned in connection with some of the Founding Fathers. My 4th great grandfather on my mother's side was an officer in Lord Cornwallis' army and a POW after the surrender at Yorktown. When he was released he returned to his home in Ireland and later played a prominent role in suppressing an Irish rebellion, for which he was knighted. The 50th anniversary of my naturalization will be in July this year. I cannot help but think of what I felt and thought about the US at that time, in the aftermath of Watergate and the circumstances and role of Congress leading up to the resignation (or abdication) of Niixon. What a contrast to the current craziness and collapse of decency, honesty, manners, morals, and competence in the discourse, policies, and actions of the federal executive, including its rejection of scientific knowledge and the value of research, plus its contempt for all forms of verifiable and verified evidence, while Congress remains supine and the Supreme Court even complicit. This is not the age of Churchill - one of the few true statements from the White House - but one of his (even if probably apocryphal) admonitions is very relevant, " "If you're going through hell, keep going."
Thank you for the thorough run-through, I feel like any time we view a guardrail at this point, we have to wonder how it will hold up to a mad king, and I just don't know that without the cooperation of non-mad conservatives and maga seeing the light, willing to call it out, how any piece of paper will ever constrain this executive, and I agree that every angle should be tried in court regardless of its chance of success, if anything to convince the court that there are constitutional limits they must enforce at certain times, and this should be that time. I feel like rather than to constrain each and every action individually, the courts must most importantly, declare that the veil of regularity is in tatters, and he must prove every claim to the same standard as any of us.
A core question seems to be whether the Supreme Court's authority is not fixed, but depends (at least in some contexts) on whether or not Congress has abdicated its role as a check on the Executive branch. I have no legal expertise, but I suspect that the Constitution does not grant the Court that sort of variable authority, though this allows for situations where the other two branches, working in cahoots, can freely violate the Constitution.
I mean the federal court has authority in EVERY case where constitutional provisions are violated if the case is properly brought, but the “properly brought” portion (threshold issues) has been so buried by conflicting doctrine that it’s often just a prescription for things the court doesn’t want to be involved in, particularly true, it seems, when rich or powerful people are connected. Which to me, just stinks - and creates sort of a concierge justice tier for VIPs.
I wasn't familiar with the legal history around Vietnam, but I see now how it is the backdrop for some of the discussion around deployment of the national guard and other troops in the US.
It does make me want to scream though! Didn't the founders make us three branches of government so that disputes could be resolved basically by 2 against 1? What good does it do anyone to have a branch step away and say "fight amongst yourselves?" Especially when one branch controls the military?
In my fantasy, the Congress could take a judicial order from SCOTUS to the military and say, "see, the president's command is illegal" this giving them a pretty ironclad reason not to obey...
On the plus side, I'm not sure I want this court stepping in. What if they just ratify Trump on the emergency docket so he can do his horrible war for 3 years?
Kagan also wrote a paper criticizing Sullivan!
Judge Walker is probably the most interesting judge on DC Cir. I think he'd be a decent nominee for SCOTUS, though it's politically unlikely.
Do you have a citation for Kagan's paper? Thanks.
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=11530&context=journal_articles
Thanks alot!
Okay, one thing you forgot that changes everything. The 1965 Gulf of Tonkin resolution. That was the equivalent of a declaration of war. Thus vietnam, while badly done and possibly ill-advised. was totally legal.
The piece specifically mentions it, but ok.
Try reading the article before commenting.
"But for as much mischief as Sullivan allows, consider me one of those who thinks we’d be a lot worse off without it than we are with it."
It doesn't have to be either/or, and Black's concurrence points to a much cleaner approach: absolute immunity for speech about public officials' conduct of their duties, and that's it.
The squishy "public figure" test has become an essentially self-fulfilling defense for major media outlets (e.g., "if NYT is talking about you, you're by definition a public figure"); an objective guardrail limiting the doctrine to public officeholders (could also consider including declared candidates for office) would eliminate the overwhelming majority of the mischief Sullivan allows without really undermining its core purpose of holding the government to account.
Sullivan's standards are considerably better than absolute immunity for any speech. As SCOTUS emphasized in Sullivan, the standards stated in Sullivan are largely consistent with the statute enacted in 1798 that expressly protected bringing federal officials “into contempt or disrepute” or “excit[ing] against them” the “hatred” of the “people” unless such criticism was proved (beyond a reasonable doubt) to be both “false” and “malicious.”
That statute (the Sedition Act of 1798) became infamous in large part because executive and judicial officers viciously violated the plain text of that law (people were prosecuted for speech that was not proved (with any evidence) to be either false or malicious). It also was infamous because it constituted blatant viewpoint discrimination regarding public men and public measures. But SCOTUS in Sullivan applied the same or analogous standards (without the viewpoint discrimination) in protecting speech unless it was proved to be (1) a falsehood and (2) asserted with actual malice.
Mere months after Sullivan (in Garrison v. Louisiana) SCOTUS again issued a unanimous opinion elaborating further on the freedom of speech. SCOTUS even more strongly emphasized that only truthful statements (not able to be proved factually false) were even potentially absolutely immune. Our Constitution “absolutely prohibits” any content-based “punishment of truthful criticism” of any public servant’s public service. “Truth may not be the subject of” any type of content-based “sanctions” “where discussion of public affairs is concerned,” so “only” those “statements” that have been proved to be “false” may be punished with “either civil or criminal sanctions.”
Even so, even some truthful speech can be punished, e.g., for violating secrecy laws or if such speech constitutes a criminal threat or intimidation.
Name a single country you consider to be a successful military power that allows any of its judges, let alone a judge as crazy and unhinged and ideological as William O. Douglas was in the last stages of his career and life, to enter injunctions against the use of its military power.
I don't like the invasion and bombing of Cambodia either, but this is outside the competence of judges and the legal system and the result of allowing judges this power is that our politicians would ignore their orders and eliminate judicial review, because judges cannot run the military.
Yes. The only proper solution to Congress' failure to do its job is to demand that Congress do its job. Asking the other branches to step in to fill the void merely compounds the problem.
Dilan, we didn't allow mere judges to decide this issue. The People decided how this issue must be handled (by judges, as well as by Presidents and Congress). The Constitution is strikingly straightforward regarding this particular issue.
The War Powers Resolution of 1973 expressly reflects the Constitution's own express provisions:
"The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."
In Article I, the People vested in Congress, alone, the power to do much more than merely declare war. “All legislative Powers” that the People “granted” to the U.S. government were “vested” exclusively in “Congress.” The People expressly granted to Congress particular legislative powers, including the power to “declare War, grant Letters of Marque and Reprisal [authorize privateering], and make Rules concerning Captures on Land and Water” and to “define and [authorize] punish[ing] Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.”
The powers of Congress also include authorizing executive action that is necessary and proper to execute the powers granted to Congress (and prohibiting executive action that isn’t necessary or isn’t proper). That is why Article I expressly emphasizes that “Congress shall have Power” to “make all Laws [that are] necessary and proper for carrying into Execution [all Congress's] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof” (including the executive and judicial branches).
In a nutshell, the People vested the power to choose to start a war (risk or sacrifices our lives, liberty and property) EXCLUSIVELY in those of our representatives whom we the People elect directly. The People reserved to ourselves the power to remove the entire House of Representatives and 1/3 of the Senate every two years. So if they choose to involve us in a war that we don't want, we (the people) can vote to remove them fairly promptly.
For reasons that are vital to our Constitution and our safety and liberty, the People in Article II expressly “vested” in the “President” only “executive Power.” The People also expressly limited all executive power to the President’s duty to “take Care that the Laws be faithfully executed” and “faithfully [serve to] preserve, protect and defend [our] Constitution.” That’s it. Nothing in our Constitution gave any president any power to start wars or other conflicts of his own choosing.
Regarding acts of war, “executive Power” means merely the power to “be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” As Alexander Hamilton emphasized in Federalist No. 69, this “authority” actually “amount[s] to nothing more than” making the President the “first General and admiral” of the U.S., in striking contrast with the power “of the British king [which] extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution [were vested exclusively in] the legislature.”
Whenever the President exercises "executive Power" as the "Commander in Chief" to commit acts of war, he obviously and necessarily almost always is required to act under express authorization by Congress. An exception applies to the President to the same extent as it applied to state governors (especially from late 1788 through the early 1800’s when individual states were much more powerful than the national government). Article I clarified that any “State” even “without the Consent of Congress” may unilaterally “engage in War” if “actually invaded, or in such imminent Danger as will not admit of delay.” Only if the U.S. is being “actually invaded” or it is “in such imminent Danger as will not admit of delay” does our Constitution permit the President to commit acts of war without obtaining authorization from Congress.
The foregoing restrictions do not mean that the President must remain silent. He may and must make the case to Congress when he believes acts of war are necessary. In Article II, the People commanded the President to provide information and make recommendations: “He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.” If the president thinks acts of war are necessary and expedient, he must make the case to Congress. If he needs help, “he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”
The "People" is BS. The Constitution was enacted and ratified by a bunch of elites. That doesn't make it not law. But you don't get to appeal to any mythical "People" here. It's positive law, written by the rather unrepresentative folks who wrote it. (For example, I consider Black people the "People", and they had no say whatsoever in what the Constitution said.)
In any event, Article III limits judicial power to cases and controversies, which is perfectly consistent with a political question doctrine, and we've had the doctrine since the beginning of the Republic and the "People" haven't risen up and demanded a constitutional amendment to eliminate it.
The rest of your comment is just irrelevant to the issue of whether judges should have any power to enjoin military actions.
Dilan, people saying what you think is the precise problem. People like you don't respect what our Constitution says because you don't like something that you (wrongly) merely think it means.
Nothing you asserted can in any way mitigate the fact that "the People" acted as the supreme legislative body in the U.S. (and the only legislative body for the U.S. in 1788) to establish "the supreme Law of the Land" and to establish that our Constitution is the paramount law of the land (as Chief Justice Marshall writing for SCOTUS emphasized in multiple respects in 1803 in Marbury v. Madison).
Complain all you want that laws permitting the punishment of murder were written by White men and historically enforced disproportionately against Black men in some parts of the U.S., but that in no way means the law "is BS." It's still the law.
Nothing you did (or can) argue can change the controlling legal effect of our Constitution. As Chief Justice Marshall writing for SCOTUS emphasized in Marbury v. Madison, that's the point of having a constitution that was put into writing and ratified by the People.
Dilan, you're missing rather remarkable (and remarkably huge) parts of our history if you really believe that Black people "had no say whatsoever in what the Constitution said." Since the early 1860's, Black people or White people representing Black people have had quite a say in who gets elected to federal office, and those people irrefutably have had quite a lot to a say about what our Constitution says. That's exactly why multiple amendments (starting with the 13th) expressly protected people who had been subject to discrimination based on color or race.
Dilan, what makes you think that the way "Article III limits judicial power to cases and controversies" is "perfectly consistent with a political question doctrine"?
Article III expressly emphasizes the opposite of the political question doctrine: "The judicial Power shall extend" to "Controversies to which the United States shall be a Party."
Article I also expressly emphasizes that Congress has the power (and duty) to “make all Laws [that are] necessary and proper for carrying into Execution [all Congress's] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Congress has the power to make law governing the executive and judicial branches, so the judiciary necessarily has the power to "say what the law is" governing executive and judicial officers.
Dilan, what makes you think that the way "Article III limits judicial power to cases and controversies" is "perfectly consistent with a political question doctrine"?
Article III expressly emphasizes the opposite of the political question doctrine: "The judicial Power shall extend" to "Controversies to which the United States shall be a Party."
Article I also expressly emphasizes that Congress has the power (and duty) to “make all Laws [that are] necessary and proper for carrying into Execution [all Congress's] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Congress has the power to make law governing the executive and judicial branches, so the judiciary necessarily has the power to "say what the law is" governing executive and judicial officers.
Dilan, your assertion that you "consider Black people the 'People' " makes me think you think our Constitution doesn't say that Black people are part of the people. But it does. So why not help people stop seeing color and start seeing the Constitution for what it's worth. All Americans should see what our Constitution and its history tell us about how to see who “We” are.
I will say (and invite anyone to try to prove me wrong) that no one really understands our Constitution until they understand the significance of the following steps.
Our first words as one people of one nation emphasized that “We” are one people, i.e., “We the People of the United States.” “We the People of the United States” to “secure the Blessings of Liberty to ourselves and our Posterity” did in June 1788 “ordain and establish this Constitution for the United States of America.” (Preamble). We the People expressly established “the supreme Law of the Land” and required “all executive and judicial Officers" and all legislators "of the United States and of [all] States” to “support [our] Constitution” as the paramount law in the supreme law of the land. (Article VI).
At least as important, the last words of our original Constitution tell us when and how we started to become one people (by law). Significantly, it wasn’t all at once. That self-evident truth is crucial to understanding who we are. From the founding of our republic on June 21, 1788 to this very day, who we are never was decided by or for everyone all at once. This incremental identification of “the People” was a pattern that was repeated throughout much of our history.
With the last words of our original Constitution, the People declared and established who “We” were initially and how “We” became “the People.” Article VII consists of a single sentence declaring how the land and people of the United States were to be established and identified: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution” by the People “of the States so ratifying the Same.”
Ratification necessarily depended upon voters and voting, and ratification by the ninth state was accomplished on June 21, 1788. So at that time “We the People” were the voters of only those 9 states. By the end of July 1788, “the People” included the voters of two more states (Virginia and New York). The voters of the last two states (North Carolina and Rhode Island) held out for a bill of rights, so they did not become part of “the People” until after the first 10 amendments (and two others that were not ratified) had been proposed for ratification in September 1789.
One of the first improvements on the original Constitution established and emphasized that “No person” (citizen or not) can be “deprived of life, liberty, or property” before being afforded all process of law” that is “due.” (Amendment V).
But everything in our early Constitution obviously wasn’t nearly enough to protect all the people from some people who were inclined to abuse other people. So in the late 1860’s the People established and emphasized exactly who “We the People” are: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof” are “citizens.” (Amendment XIV, Section 1).
After We the People identified ourselves (citizens), we declared that “No State” has any power to purport to “make or enforce any law” that does or would “abridge [any] privileges or immunities of citizens of the United States” or to “deprive any person” (citizen or not) “of life, liberty, or property” before affording such person all “process of law” that is “due” or to “deny to any person” (citizen or not) of “the equal protection of the laws.” (Amendment XIV, Section 1).
But even all the foregoing was not enough to cause all the People to cease abusing some of the People. So the People expressly identified and expressly rejected particular evils, including specifically discrimination on account of race, color, previous condition of servitude, sex, wealth or age. Each time, we were more clear about who "We" really are.
“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” (Amendment XV).
“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” (Amendment XIX).
“The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax,” i.e., on account of wealth. (Amendment XXIV).
“The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” (Amendment XXVI).
All those provisions of our Constitution (and more) providing for and protecting the right to vote serve a particularly powerful purpose. I never understood how until I read something that many who wrote or ratified our Constitution had read.
Back in 1754 Montesquieu, in “The Spirit of the Laws” emphasized the reason for and meaning of all the foregoing. Montesquieu highlighted (and many of the people who wrote and ratified the foregoing parts of our Constitution understood) that the right to vote isn’t about any mere right, much less about mere voting. The right to vote is most essentially about sovereign power. Suffrage is the quintessential speech of sovereigns under our Constitution.
“In a democracy the people are in some respects the sovereign, and in others the subject” (of the laws). “The freedom of every citizen constitutes a part of the public liberty; and, in a democratical state, is even a part of the sovereignty [of the people].” “[T]he enjoyment of liberty, and even its support and preservation, consists in every man’s being allowed to speak his thoughts and to lay open his sentiments.”
The “exercise of sovereignty” by citizens is most clearly “by their suffrages, which [is an expression of citizens’ sovereign] will: [by voting and other exercises of the freedom of expression] the sovereign’s will is the sovereign himself. The laws, therefore, which establish the right of suffrage, are fundamental to this government” so it is “important to regulate, in a republic, in what manner, by whom, to whom, and concerning what, suffrages are to be given.”
Montesquieu also taught another lesson in The Spirit of the Laws that seems to have been reflected (eventually) in our Constitution in the Reconstruction Amendments (XIII-XV). Inasmuch “as all men are born equal, slavery must be accounted unnatural.” Even if slavery is necessary for some period of time, "it is contrary to the nature of things that the slavery should be perpetual. The people enslaved ought to be rendered capable of becoming subjects" (or citizens in a republic). The reason is that "[t]here is no such thing as a right of reducing people to slavery" except when doing so is "necessary for the preservation of the conquest. Preservation, and not servitude, is the end of conquest; though servitude may happen sometimes to be a necessary means of preservation."
The language in the supreme law of the land defines who "We the People" are and it establishes that the People constitute the highest sovereign power in this nation. Our own Constitution dictates that we see, respect and nurture each other as equal sovereigns and that we not discriminate on account of race, color, previous condition of servitude, sex, wealth or age (after 17).
Absurdly dishonest argumentation.
"Name a single country" is not a valid form of argument. And there's an obvious example: The U.S. ... deny that and you have a strictly circular argument.
Great article, thanks Steve.
As a retired emergency medicine physician I'd like to offer a different perspective. I didn't spend my workdays searching for interesting patients to whom I could offer medical care. The emergency department reality is we have to manage everybody who comes to our door. I'll admit that sometimes I wondered why I "got chosen" to care for somebody so ill but couldn't waste time dwelling on that if I was to do the best I could for that person. Excusing myself from a difficult issue was abandoning the patient and that was never a possibility. Thus, when I hear of people who have risen to important levels of society and are tasked to manage hard problems, like our Supreme Court Justices or Congresspeople, sidestepping an issue because it is too hard or might cause a loss of power, or whatever, I feel abandoned by them. We the People need to hold them to a higher standard.
Our Constitution and federal law do hold them to a higher standard. That's the point of the oath requirement in Article VI and in 5 U.S.C. 3331 (promising to "support and defend the Constitution of the United States against all enemies, foreign and domestic" and to "bear true faith and allegiance to the [Constitution]").
Chief Justice Marshall (writing for SCOTUS) in Marbury v. Madison in 1803 emphasized the meaning of the language from Article VI of our Constitution regarding "the supreme Law of the Land" and the oaths (duty) of public servants "to support [our] Constitution."
"The government of the United States has been emphatically termed a government of laws, and not of men."
"It is emphatically the province and duty of the judicial department to say what the [existing] law [actually] is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. . . . [T]he court must determine which of [any] conflicting rules governs the case. This is of the very essence of judicial duty."
"[I]t is apparent, that the framers of the constitution contemplated [our Constitution], as a rule for the government of courts, as well as of the legislature. [That is precisely why the Article VI and federal law] direct [all federal] judges to take an oath to support [our Constitution]. This oath certainly applies, in an especial manner, to [public servants’] conduct in their official character. . . . [The reason each] judge swear[s] to discharge his duties agreeably to the constitution of the United States [is] that constitution forms [the supreme] rule for his government."
"[I]n declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank."
"Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by [our Constitution]."
"[T]he constitution is to be considered, in court, as a paramount law. . . . The constitution is [necessarily the] superior, paramount law, unchangeable by ordinary means. . . . Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void."
The same principles and logic, above, establishing that any law that is “repugnant to the constitution is void” (even if it was made either with the President’s approval or with the approval of two-thirds of each house) necessarily confirms that any decision or opinion by any quantity or quality of judges that is “repugnant to the constitution is void.” No purported “precedent” or purported “doctrine” made by any quantity or quality of judges (much less any mere judge’s mere opinion) can lawfully contradict, override or overrule our Constitution. Any presumption or pretense to the contrary is not the rule of law. It is rule by outlaws. It is rule by outlaws who are enemies of the Constitution, violating their own oaths to support and defend our Constitution against all enemies, foreign and domestic.
Thank you for all of that! I agree but in the end they are just words and words are interpreted by humans full of intrinsic biases. And we've seen how so many oath swearers in the Trump administration including Trump himself have dodged the mandate and responsibility of their sworn oaths. We the people can choose to vote out our elected officials. Judges with lifetime appointments are immune from that remedy.
Paul, I appreciate your sentiments. But the words of our Constitution (and SCOTUS in Marbury v. Madison about our Constitution) aren't mere words. They're law. They are words that represent the paramount law of the land, and they were created by the People as the supreme legislative body for the United States to govern all our public servants.
Even so, you're right that many of our purported public servants are little (if at all) better than common con men. That obviously applies especially to Trump, as well as to at least a few SCOTUS justices. An expression that you used illustrates the problem.
Federal judges have conned the people into believing that judges have "lifetime appointments" or "life tenure." I believe you believe what you said, but judges (e.g., Chief Justice Roberts) who say such things are lying. They know such assertions are false, and they assert them to deceive people into believing them so that people just won't even think about how to hold judges accountable for their misconduct.
The Constitution, itself, and some of the best and brightest people who helped write it and get it ratified tell a strikingly different story. Nothing in our Constitution granted any public servant a term for "life."
The multiple parts of the plain text of the Constitution (and multiple parts of the Federalist Papers explaining the purpose of provisions of our Constitution) emphasize that all federal judges should be judged by their behavior and they may hold their offices only during good behavior. Article III emphasizes that all federal "Judges, both of the supreme and inferior Courts, shall hold their Offices [only] during good Behaviour."
Only federal “judges” who “behave properly, will be secured in their places for life.” Federalist No. 79 (Alexander Hamilton). “The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior.” Federalist No. 39 (James Madison). Ours is “a republic, where every magistrate ought to be personally responsible for his behavior in office.” Federalist No. 70 (Hamilton).
Good behavior necessarily means fulfilling their oaths of office. The point of such an oath (like the oath to testify truthfully) is to prescribe mandatory behavior. The Constitution commands that all state and federal legislators "and all executive and judicial Officers, both of the United States and of [all] States, shall be bound by Oath or Affirmation, to support this Constitution." Federal law made in pursuance of our Constitution (5 U.S.C. 3331) does the same even more emphatically. That's because the first, foremost and constant duty of every public servant (and every lawyer) is to support our Constitution.
Our Constitution also commands that "[t]he President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of" any "high Crimes and Misdemeanors." And current federal law (18 U.S.C. Sections 241, 242 and 371) does identify such criminal misconduct. State laws also do (or can be made to) authorize state prosecution for analogous crimes.
Legislators (state and federal) and prosecutors (state and federal) need to consider how executive and judicial officers can or should be prosecuted for committing such crimes and others. U.S. legislators also need to make laws governing impeachments of executive and judicial officers so that they are more like criminal proceedings than mere political proceedings or theater.
In a way, it's our own fault that we don't already have such laws. Article I of our Constitution famously expressly emphasized that Congress has the power to "make all Laws" that turn out to "be necessary and proper for carrying into Execution [all Congress's] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." So the People clearly vested in Congress the power to make laws governing all powers that we vested in any public servant in the executive or judicial departments.
Paul, you're so right that "We the People need to hold them to a higher standard." Nothing I wrote detracts at all from that.
As James Madison (the Father of the Constitution) emphasized in Federalist No. 48 (https://guides.loc.gov/federalist-papers/text-41-50#s-lg-box-wrapper-25493415), we never can merely "trust to these parchment barriers against the encroaching spirit of power." Any "mere demarcation on parchment of the constitutional limits of the several departments [legislative, executive and judicial], is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands."
The reason the Philadelphia Convention proposed the original Constitution was that by 1787 "experience assures us, that the efficacy of [any paper] provision [restraining power] has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government."
That's why "the People" were included expressly in the divisions of power and the duty to represent the people in our Constitution. That's the principle that permeates the Preamble, Article VII (re: how our Constitution was "established") and the First and Second Amendments.
Those who argue (absurdly) “that these legal constraints [in the supreme law of the land] are irrelevant [merely] because they are not judicially enforceable—that is, because it’s virtually impossible for anyone to walk into court and use these legal arguments to stop the U.S. operations” have their heads stuck, at best, in the sand.
Judges’ mere failure or refusal to fulfill their oaths to support and defend our Constitution against all domestic enemies hardly renders the supreme law of the land irrelevant. At most, it merely highlights that more law is necessary and proper to regulate the powers vested in the executive or judicial branches.
For that very reason, our Constitution expressly provides for new law to be made because experience reveals it to be necessary and proper (it vests in Congress the power to “make all Laws” that are “necessary and proper for carrying into Execution [all Congress’s] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”). Our Constitution also reserves to voters the power to replace legislators who fail to enact legislation that is necessary and proper.
Congress can and should enact laws, for example, (1) limiting the power of the president to pardon crimes for which he could be impeached, convicted and removed from office, (2) requiring process of law for impeachments and trials (like Congress did for civil and criminal trials) and (3) require impeachment, conviction and removal of executive or judicial officers who commit high crimes or high misdemeanors.
This discussion and reminder of the events leading up to the disaster of US involvement in the Vietnam War – perceived by others as the American War or the last stage of Vietnam’s War of Independence from its French colonial masters – raises the question of the similarities between the “Best and the Brightest” (the title of David Halberstam’s book) and the “Worst and the Dumbest”, one characterization of the current leaders in Washington, DC. In both cases ignorance of the foreign players, their histories and motivations, and the use of lies (or to be generous horrendous misunderstandings) to justify US intervention lie at the heart of the matter. In Vietnam, escalation of the conflict despite its growing evidence of failure led to increasingly disastrous decisions , often overriding the advice of career diplomats and others who were familiar with the histories and experiences of the Vietnamese and other foreign actors, notably the many centuries of relations between Vietnam and China, and the determination of the Vietnamese (like the American colonies) to throw off the yoke of overseas domination.
As I recall, the Gulf of Tonkin resolution was passed by Congress almost unanimously as the legal basis for war, a few days after an attack on US warships by the North Vietnamese that never actually happened. I admit I am not sure when this fact became apparent or was known to the President and others at the time, or whether there was any attempt to promptly correct the misrepresentation when it became known.
Under Article I, Section 8 of the Constitution, an increasingly abused foundational document – am I correct in this “originalist” interpretation ? - Congress has an exclusive, constitutional power to initiate a legal state of war between the United States and another nation. Perhaps the current assaults on Iran can be construed by some abstruse or contorted legal analysis as falling short of a state of war, as being merely a “special military operation” to quote a contemporary precedent from a foreign regime, or a defensive necessary preemptive response to a clear and present existential threat. But otherwise to most of us if it kills like a war (civilians and people of all ages as well as military), and targets and destroys the infrastructure of a society like a war (food supplies, sources of energy, health care and educational facilities etc.), then it’s a war.
It is surely the responsibility of Congress to exercise this right, although today’s members of Congress are incapable or unwilling to see any violation (of the Constitution), hear about any violation, or speak or vote against any violation in sufficient numbers to be effective. And the President is unrestricted in his use of the “Get Out of Jail Free” card of claiming there is an Emergency which enables, or even requires him to take whatever steps he wants using his unique and in some people’s views divinely blessed - at least by the Christian God, even if not by the Allah that most people in the region profess their allegiance to - “knack,” or unique insights and knowledge , even if they involve contradictory justifications and explanations from one day or even hour to the next. They are simply further proof of his unique skill and genius in keeping enemies of America nonplussed and off balance. And friends too, but that is only an unfortunate , regrettable side effect, and these friends are not being supportive anyway. Where is Winston Churchill whe we need him? He did champion the “unconditional surrender” of the Axis powers to end WW2. And he also made the historic “We shall never surrender” speech to the House of Commons in June, 1940 when Britain stood alone, and the US Ambassador Joseph Kennedy was convinced that the Nazis would soon be in London.
It would be helpful if the Supreme Court had over the years weighed in with some definitive rulings about what is legal and what is illegal about the procedures through which (or that have been ignored) momentous decisions have been made and acted upon that have led to the country’s entry into wars. I would not expect the Court to be a leader in the matter of War Powers. But I would also not have expected and deplore its decision about the absolute immunity a President enjoys for actions taken while in office that lie within core constitutional powers, and presumptive immunity for all official actions (what is covered by the word “official” in practice is unclear - does it cover actions for which he was convicted when not President as well as actions involving the use and/or withdrawal of federal government resources and now the assualts on Iran?). The immunity decision reinforces any “Get Out of Jail Free” card with a “Stay Out of Jail Free” trump card (no pun intended).
Martyn, what made you use the expression "state of war"? Federalist No. 15 used that expression to shed light on the meaning of the power to declare or wage war.
All federal criminal law is, in essence, a authorization of the use of force that courts can enforce. All federal criminal law expressly authorizes the use of force to impose punishment (usually a fine or imprisonment or both, but sometimes death). Federalist No. 15 clarified that war is meant to be the mere means of executing an exercise of legislative power (supporting our Constitution) authorizing military force when our courts lack the power to support our Constitution the way the president can by acting as commander in chief:
"Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the COERCION of the magistracy, or by the COERCION of arms. The first kind can evidently apply only to men; the last kind must of necessity, be employed against bodies politic, or communities, or States. It is evident that there is no process of a court by which the observance of the laws can, in the last resort, be enforced. Sentences may be denounced against them for violations of their duty; but these sentences can only be carried into execution by the sword. In an association where the general authority is confined to the collective bodies of the communities, that compose it, every breach of the laws must involve a state of war."
Later, in Federalist No. 69, Alexander Hamilton emphasized:
"The President is to be commander-in-chief of the army and navy of the United States" which "in substance" actually "amount[s] to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while [the authority and power] of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by [our] Constitution" is vested in "the legislature."
Thank you Jack.
I admit I am not as attentive, being a non-lawyer, as I might or should be in thinking about whether the same English word or phrase used in the late 18th century might have a different connotation or have been used powerfully to make a different point, such as you cite, than in the 21st century. My use of the phrase "state of war" was triggered by claims that a war is not really a war (Putin about the invasion of Ukraine, and Senator Mullin, the equally (un)qualified nominated successor to Kristi Noem as Secretary of Homeland (In)security), about the war on Iran, or in other words that the actions of respectively Putin and Trump had put neither Russia nor the US into a state of war.
Your quote from Federalist 69 emphasizes (at least to me) how abominable and terrifying is the 2025 ruling of the Supreme Court about the immunity of the President. The British Monarchy has moved on, or been forced to move on since 1776, while the American Presidency seems to moving in the opposite direction.
Martyn, I wasn't objecting your use of "state of war." I was supporting your use of that expression by showing that it also had been used by some of the best and brightest of the people who wrote or ratified our Constitution.
I also was curious about whether you had read something about this issue that I should read.
Jack, That is the first time I have been mentioned in connection with some of the Founding Fathers. My 4th great grandfather on my mother's side was an officer in Lord Cornwallis' army and a POW after the surrender at Yorktown. When he was released he returned to his home in Ireland and later played a prominent role in suppressing an Irish rebellion, for which he was knighted. The 50th anniversary of my naturalization will be in July this year. I cannot help but think of what I felt and thought about the US at that time, in the aftermath of Watergate and the circumstances and role of Congress leading up to the resignation (or abdication) of Niixon. What a contrast to the current craziness and collapse of decency, honesty, manners, morals, and competence in the discourse, policies, and actions of the federal executive, including its rejection of scientific knowledge and the value of research, plus its contempt for all forms of verifiable and verified evidence, while Congress remains supine and the Supreme Court even complicit. This is not the age of Churchill - one of the few true statements from the White House - but one of his (even if probably apocryphal) admonitions is very relevant, " "If you're going through hell, keep going."
Thank you for the thorough run-through, I feel like any time we view a guardrail at this point, we have to wonder how it will hold up to a mad king, and I just don't know that without the cooperation of non-mad conservatives and maga seeing the light, willing to call it out, how any piece of paper will ever constrain this executive, and I agree that every angle should be tried in court regardless of its chance of success, if anything to convince the court that there are constitutional limits they must enforce at certain times, and this should be that time. I feel like rather than to constrain each and every action individually, the courts must most importantly, declare that the veil of regularity is in tatters, and he must prove every claim to the same standard as any of us.
A core question seems to be whether the Supreme Court's authority is not fixed, but depends (at least in some contexts) on whether or not Congress has abdicated its role as a check on the Executive branch. I have no legal expertise, but I suspect that the Constitution does not grant the Court that sort of variable authority, though this allows for situations where the other two branches, working in cahoots, can freely violate the Constitution.
I mean the federal court has authority in EVERY case where constitutional provisions are violated if the case is properly brought, but the “properly brought” portion (threshold issues) has been so buried by conflicting doctrine that it’s often just a prescription for things the court doesn’t want to be involved in, particularly true, it seems, when rich or powerful people are connected. Which to me, just stinks - and creates sort of a concierge justice tier for VIPs.
I wasn't familiar with the legal history around Vietnam, but I see now how it is the backdrop for some of the discussion around deployment of the national guard and other troops in the US.
It does make me want to scream though! Didn't the founders make us three branches of government so that disputes could be resolved basically by 2 against 1? What good does it do anyone to have a branch step away and say "fight amongst yourselves?" Especially when one branch controls the military?
In my fantasy, the Congress could take a judicial order from SCOTUS to the military and say, "see, the president's command is illegal" this giving them a pretty ironclad reason not to obey...
On the plus side, I'm not sure I want this court stepping in. What if they just ratify Trump on the emergency docket so he can do his horrible war for 3 years?