OPINION: The Founders would not be please

The framers of the Constitution must be rolling in their graves. That the actions of the current president of the United States would be unchecked by Congress and the citizens of the Republic, especially with regard to waging war and regulating trade through tariffs, would horrify them.

When the framers debated the power of Congress to engage the nation in a war, to “make” war, they were concerned that vesting this power in the legislative branch might prove fatal because a deliberative body, by definition, cannot act swiftly enough to meet an immediate and urgent threat. On the other hand, the president can act quickly to repel an invading army, for example, but placing war-making powers in the hands of a single person, opponents argued, would not only be foolhardy in the extreme but dangerous. James Madison and Elbridge Gerry suggested a compromise by moving that the word “declare” be substituted for “make,” which would allow the president “to repel sudden attacks” upon the United States but would still reserve to Congress, as Roger Sherman emphasized, the sole power “to commence war.” After brief debate, the Convention overwhelmingly approved the Madison-Gerry motion.

Regulating trade was more controversial. In the early drafts of the Constitution, trade laws required a two-thirds vote in the House and the Senate. Southern states insisted that a super majority of both houses was necessary in order to ensure that trade laws were equitable. Specifically, as John Langdon explained, southern delegates “feared that the Northern states will oppress the trade of the Southern.” Discriminatory taxes on imports would protect northern producers, but would likely be countered by the imposition of reciprocal taxes by European nations. As a result, the five “southern” states of Virginia, Maryland, North Carolina, South Carolina and Georgia would have to pay higher prices for goods they imported from abroad while their staple exports were rendered less desirable by the import taxes imposed by Europe.

The only way to break the impasse was to link trade regulation to another heatedly contested issue. The southern states had made clear earlier that they wanted northern assurances that the new Congress, which would have a northern majority in both houses (but not a two-thirds majority), would not interfere with the importation of slaves. The “bargain” that was struck by the competing interests was straightforward: Southern delegates agreed that trade laws were no different from other laws — requiring simple majorities, not super majorities — and northern delegates agreed that the Constitution would prohibit Congress from enacting any legislation interfering with the importation of slaves until 1808.

Why would the framers of the Constitution be distressed by the current state of affairs?

At no point in any of the debates over executive power did any delegate advance the idea that the president be allowed unilaterally to “make” war — unless the threat was immediate, thus leaving no time for deliberation, and then only temporarily until circumstances allowed Congress time to assess the situation and decide whether to “declare” war. And the very idea that the president had the power to regulate trade would have been anathema to them. Southern delegates reluctantly agreed to a simple majority vote in Congress to advance trade bills, and then only in exchange for the constitutional protection of slave importations for 20 years.

One may argue that Congress is to blame for the current mess, that since World War II Congress has neglected its responsibility, its duty, to declare war when the nation is in fact at war. The authority to commence war solely at the discretion of the president is now so routinely accepted by Congress, and perhaps by the people, that it is essentially unrestrained. Similarly, Congress has enacted legislation, specifically the 1977 Emergency Economic Powers Act, that allows the president to manage trade in a loosely defined “national emergency.”

One may contend that these are necessary, even desirable, developments given the nature and composition of Congress nowadays. What one cannot do, however, is defend the actions of the president and, at the same time, claim that one adheres to the doctrine of original intent in interpreting the Constitution.