Constitution Day celebrates ‘conversation,’ not answers

The U.S. Constitution provides a framework for talking about and resolving serious differences of opinion in a disciplined, thoughtful and nonviolent manner, Duke University law professor H. Jefferson Powell said in a Constitution Day lecture today at IU Bloomington.

“It’s a conversation,” he said. “It’s that conversation that we celebrate today.”

constitution_blogBut the conversation doesn’t always lead to obvious answers. Take the example of Syria.


First, turn the clock back two weeks. Could President Barack Obama, on his own initiative, have ordered military action to respond to evidence that President Bashar al-Assad’s forces used chemical weapons? The text of the Constitution doesn’t tell us. It says Congress has the authority to declare war, and the president is the commander in chief. That leaves a big gray area, open to dispute.

Powell, a former U.S. deputy assistant attorney general, told an IU Maurer School of Law audience that presidents starting with George Washington have argued they have the power to initiate military action without congressional consent in certain circumstances. But whether those actions have been lawful is subject to debate.

What would the Supreme Court say? Legal precedent isn’t all that helpful either. The court most recently addressed the conflict in 1804, Powell said. “We’re not likely to get an answer there,” he said.

And what about the situation today, with Obama having asked Congress to support action against Syria – and then delayed the request to try for a diplomatic resolution?

Powell said Congress could pass resolutions for or against military force, in which case the legal situation would be clear. But “let’s suppose Congress doesn’t act,” he said. “That’s one of the toughest current-day questions in constitutional law.”

He cited legal advice followed by Presidents Nixon and Clinton, to the effect that military action without congressional approval was lawful if it was limited in scope and didn’t rise to the level of war.

How would Powell advise the president on Syria? He suggested more conversation is needed. “If I were still in government,” he said, “I’d say, ‘You have to tell me more.’”

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