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Ideas whose time have come -- and gone?

In the last few days, two 70's-era laws have been brought up -- and some have found them wanting.

The first was the Supreme Court decision in Roe V. Wade. Senator John McCain said at a campaign event (in case you haven't heard, he's running for president) that he would like to see it overturned.

It's hard to set aside the passion that the abortion debate rouses, but I really, really wish we could do that for brief while and actually LOOK at the decision. Regardless of how one feels about the issue (I am "squishily" pro-choice), the actual ruling is a mess. It's sloppy work, written "backwards" -- the conclusion was reached, and then the authors worked from that to find justifications for it. It's probably the worst bit of Constitutional law ever theorized, even surpassing the shoddy phrasing of the 2nd Amendment (which, depending on how one parses the grammar, either enshrines or restricts the private ownership of firearms). Speaking purely in an objective basis, it OUGHT to be reviewed -- and trashed. What ought to take its place can be debated, but I defy anyone with a straight face to say that the actual ruling, as written, represents clear Constitutional thought.

The second is the War Powers Act. That measure, passed in the wake of the Viet Nam War, recognizes the president's authority to initiate hostilities without prior Congressional approval -- but only for up to 90 days.

As time has passed and technology has made the world so much smaller, the whole matter of international conflict has grown far more complicated -- and immediate. We can no longer count on our oceans providing us with the privacy and time to debate such matters at leisure. At the height of the cold war, the United States was not weeks away from attackers, but mere minutes. As such, we simply didn't have the time for Congress to debate whether or not to declare war; large portions of the United States could be annihilated in the time it would take for a single roll call in the House.

The threat has eased up slightly, but the War Powers Act is still on the books. And the debate over just what is Congress' rightful role in setting foreign policy -- especially in matters not quite at the level of a formal declaration of war.

Also, the military might of the United States has grown beyond logarithmically. At the outset, some argued on putting a cap on the size of the Army. I am probably mangling some details, but I recall some said that we should not have a standing army of more than 5,000. George Washington acidly observed that we ought to include a similar provision, limiting invading armies to no more than 3,000, and the whole idea went down in flames.

But today, we have evolved from power to superpower to the world's sole hyperpower, where no nation can realistically expect to withstand our full power and fury for very long. Speaking purely militarily, we are a whole troop of 2,000-pound gorillas. The full range of our military options would be utterly incomprehensible to those who wrote the Constitution.

So, should the War Powers Act be revisited? Absolutely. But not in the heat of passion currently roused by the war in Iraq. Congress, as a fully equal third of the United States government, definitely has a role to play in foreign policy -- and, quite possibly, more than the Constitutionally-mandated powers of confirming ambassadors, ratifying treaties, and declaring wars.

These two issues deserve attention, careful thought, and polite debate.

Such a pity that the current passions guarantee the first, and forbid the latter two.


Comments (10)

The Roe v. Wade case is bas... (Below threshold)
Jeff Blogworthy:

The Roe v. Wade case is based on lies and deception from start to finish. The more one looks at the details of the case and the actual "participants" the more it stinks.

In any event, I don't believe a word McCain says. Where has he been on the issue for the last 20 years? This is mere polical pandering at its worst.

It's hard to set aside t... (Below threshold)
mantis:

It's hard to set aside the passion that the abortion debate rouses, but I really, really wish we could do that for brief while and actually LOOK at the decision. Regardless of how one feels about the issue (I am "squishily" pro-choice), the actual ruling is a mess. It's sloppy work, written "backwards" -- the conclusion was reached, and then the authors worked from that to find justifications for it. It's probably the worst bit of Constitutional law ever theorized, even surpassing the shoddy phrasing of the 2nd Amendment (which, depending on how one parses the grammar, either enshrines or restricts the private ownership of firearms). Speaking purely in an objective basis, it OUGHT to be reviewed -- and trashed. What ought to take its place can be debated, but I defy anyone with a straight face to say that the actual ruling, as written, represents clear Constitutional thought.

Agree with you 100% there, Jay.

War Powers is a bit more complicated. Have to get back to that one later.

Jeff, are you aware of anyt... (Below threshold)

Jeff, are you aware of anything that suggests that McCain hasn't been solidly pro-life for his entire career? I'm not.

Some things are best left a... (Below threshold)
Robert the original:

Some things are best left alone.

War powers is certainly a more complicated issue than congress delaring war, something that is not done much anymore.

Almost all Presidents have used the military in ways not expressly stated in the Constitution, however they are assuming responsibilies that are.

In the case of a treaty, say, things have evolved so that the executive does the deal and the Senate ratifies it, if they feel like it, which is rare. Strangely this has worked fairly well.

I prefer to leave the President rather free to take action. Congress can always exert pressure at some later point.

Any ammendment would necessarily tighten and clarify the rules (a bright red line) and that is something that would limit the President.

Just as the founders could not imagine all situations, so too our current legislators cannot.

As long as the President has the power to take fast action, and as long as congress can ultimately cut off funds, both sides have their power and we are fairly well served.

wavemaker:Hi there... (Below threshold)
Jeff Blogworthy:

wavemaker:

Hi there. There is pro-life and then there is pro-life. He supports government funding of Fetal Tissue Research for one thing. I am sure McCain would also say he is "pro free speech" but that did not prevent him from working to unconstitutionally limit free speech. I don't trust him. He talks out of both sides of his mouth, e.g.:

"I'd love to see a point where Roe vs. Wade is irrelevant, and could be repealed because abortion is no longer necessary. But certainly in the short term, or even the long term, I would not support repeal of Roe vs. Wade, which would then force women in America to illegal and dangerous operations."

So he would like to see Roe v. Wade repealed, but he could not support its repeal? He must have studied under John Kerry. :)

the lady in the Roe v. wade... (Below threshold)
jp:

the lady in the Roe v. wade case has been working to get it overturned, overtime and with the new technology that has come along she realized she was on the wrong side.

The US has not had an official "declaration of War" since WW2.

Right. McCain wants to see... (Below threshold)
LenS:

Right. McCain wants to see Roe vs. Wade overturned. Yet he's been a huge obstacle in getting strict interpretation judges confirmed. He's such a hypocrite. He votes pro-life, knowing full well that those votes won't matter because he knows the judges will stop those votes -- the same judges he protects.

Strange, everyone gets hung up on the words of "Declaration of War" not being used even though Congress has repeatedly authorized various military actions throughout our history without using those words (go back to Jefferson and the Barbary pirates).

JeffBlog -- well that certa... (Below threshold)

JeffBlog -- well that certainly does merit some circumspection, dunnit. I guess I would say that I am one who is "pro-life," but "pro-life," having had a 100% CFL rating for my three terms in the state house -- but that was back in the mid-80's when the issue of "life" was simpler to argue. These days there is certainly more room for testing the outside limits of one's purity (I guess).

This may seem niggling, but the thing I find almost as annoying as his waffling on Roe is his misuse of the term "repealed." A statute is repealed. A court decision is overruled. And SCOTUS overruling Roe, in and of itself, would not result in a single "back room abortion" (so to speak) for a period of years, while state legislatures scrambled, argues, debated, voted, and subsequent plaintiffs sued, argued, enjoined and eventually returned to SCOTUS to test the newest statutes against whatever the new standards was that the Court had articulated in overruling Roe.

The US has not had an of... (Below threshold)
MikeSC:

The US has not had an official "declaration of War" since WW2.

There's no such thing as an "official declaration of war". What was passed in 2002 would EASILY pass muster as a legal declaration of war, if somebody wished to argue that in court.

As for Roe v Wade, abortion was legal in plenty of areas before the decision. This is a decision that belongs SOLELY in the political and not in the judicial realm.
-=Mike

Repeal ROE vs WADE and reve... (Below threshold)
spurwing plover:

Repeal ROE vs WADE and reverse all those other infamous rulings of our IMPERIAL COURT




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