David Mayer is professor of law and history at Capital University in Columbus, Ohio. He is the author of The Constitutional Thought of Thomas Jefferson (University of Virginia Press).
The United States has no vital interests at stake in Yugoslavia; the conflict there is the kind of European war that Americans should avoid if we follow the advice of the early American presidents, beginning with George Washington in his famous Farewell Address. The situation in Yugoslavia has been ably summarized by journalist Philip Terzian: “We are bombing a sovereign nation, not a member of NATO, which is not disturbing its neighbors but seeking, instead, to prevent one of its provinces from seceding. Bear in mind that the United States fought a bloody, four-year civil war, on the issue of secession (we’re against it) and that NATO, in its action against the Serbs, now proposes to invade a European state—in the Balkans, no less—to resolve an internal ethnic dispute. For the first time since 1945, the German air force is in action against another European country. And everyone agrees that air assaults are not conclusive. In order to achieve what we want, it might well be necessary to introduce ground troops.”
The Clinton administration’s decision to bomb Yugoslavia, under the rubric of NATO, is an incredible foreign policy blunder. Not only is the situation there none of the United States’ business, but our participation in the NATO bombings also threatens to destabilize eastern Europe far more than anything done by Slobodan Milosevic’s government. (Indeed, it can be argued that the bombing of Kosovo worsened the so-called “ethnic cleansing” and other atrocities being committed by Serbian or Yugoslav forces in that province.) Critics of the United States and of the West generally can point to the bombings as clear evidence of Western “imperialism.” Undoubtedly, many communists and other leftists in the new NATO member nations of Poland, Hungary, and the Czech Republic are doing just that—possibly setting back for decades whatever progress in foreign relations the United States has made in eastern Europe since the fall of the Soviet Union.
Regardless of the outcome of the war itself politically—whether it will bring about the demise of Slobodan Milosevic, and at what price—the lasting importance of the war to Americans will be its significance constitutionally. What it reveals is that the actual balance of power in matters of foreign policy has shifted decisively toward the President, and that Congress has failed utterly to function as the institution the Framers of the Constitution intended it to be. What that signifies, in terms of the concentration of unchecked power in the White House, should be a matter of profound concern to all Americans.
The Wisdom of the Framers
The Framers of the Constitution gave the power to declare war to Congress, and not to the President, because they recognized that the people have a vital stake in war: it involves the expenditure of American tax dollars as well as the loss of American lives. For that reason, Congress must be involved in making the initial decision to commit American forces abroad. As James Madison explained in 1793, the momentous questions of war and peace properly belong to the legislature, where they can be publicly debated by the people’s representatives.
The decision to declare war—that is to say, the decision to initiate the use of force aggressively and not in self-defense—is a decision that only the Congress can make. The debate over war—indeed, the debate not only over strategy (war versus economic sanctions) but also whether any American intervention is justified, as a matter of policy—should have taken place publicly in both houses of Congress, not in the Oval Office among a clique of presidential advisers. By committing the United States to a course that led inevitably to war without the explicit authorization of Congress, President Clinton committed an act that violates the Constitution.
Congress’s exclusive power to declare war under Article I, Section 8, is not the only provision of the Constitution violated by Bill Clinton’s war in Yugoslavia. Arguably, the Yugoslav war also violates the first clause of Article I, Section 8, which limits Congress’s taxing power—and hence, the U.S. government’s spending power—to matters that concern “the common Defence and general Welfare of the United States.” Nothing in the Constitution authorizes the President, even with Congress’s consent, to use the military forces of the United States not for national defense, but for offensive military actions in Europe—in effect to transform the U.S. military into a kind of Peace Corps with guns. Moreover, Article II, Section 2, provides, “The President shall be Commander in Chief of the Army and Navy of the United States.” By committing U.S. troops to a NATO operation, under NATO command (whether or not the NATO commander is an American), Clinton has abdicated his legitimate power as commander-in-chief (the power to actually wage war) in the name of asserting a fictitious power as commander-in-chief (the power to enter into war) that in fact usurps Congress’s legitimate authority.
Some legal scholars have advanced the extraordinary argument that Congress has neither a constitutional obligation nor a right to declare war before the United States joins in a “police action” sanctioned by either the United Nations or NATO. They argue that U.S. ratification of the U.N. Charter and of the North Atlantic Treaty after World War II made us part of a “new world order” in which member nations can no longer “make war,” in the classic sense. The implication of this argument is that the Article I, Section 8, grant of the war-making power to Congress has been rendered obsolete since 1945. Even with concurrence of the Senate, however, the President cannot amend the Constitution; only the people can do that, according to the amendment procedures prescribed by the Constitution itself. Until that happens, the Constitution binds all the branches of government, especially the President, who has no higher obligation than his duty to adhere to the oath he swore, to “preserve, protect, and defend” the Constitution.
Charter Violations
NATO’s attack on Yugoslavia, moreover, violates both the United Nations Charter and NATO’s basic charter, the North Atlantic Treaty. Article 2(4) of the U.N. Charter requires that members “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” Similarly, Article 2(3) states, “Members shall settle their international disputes by peaceful means.” No matter how great a thug Slobodan Milosevic may be—no matter what atrocities the Serbians commit in Kosovo—no member of the United Nations has a right, under the U.N. Charter, to initiate the use of force against Yugoslavia. Article 51 of the Charter does recognize the “inherent right of individual or collective self-defense” for all members, but the bombing of Belgrade is not self-defense; it is an act of aggression. Similarly, Article 5 of the North Atlantic Treaty contemplates use of military power only defensively, not offensively; it provides, “an armed attack on one or more [members] . . . shall be considered an attack against them all,” clearly a defensive provision. Needless to say, Yugoslavia has not attacked any NATO member.
NATO was created for the purposes of mutual defense (by the United States and western European nations) against a hostile Soviet Union. With the Soviet Union no longer existing, one might ask whether NATO itself is today obsolete. Even if we assume that Russia poses a great threat, NATO’s legitimacy still rests on its fundamental purpose as a defensive alliance. Nothing in NATO’s charter allows it to become a general European police force, which is what it has now become.
Advocates of presidential war power (whether defending George Bush’s war in the Persian Gulf or the various actions in which Bill Clinton has committed U.S. military forces in such places as Haiti, Bosnia, and now Kosovo) also have asserted that the need for an international consensus prior to a NATO- or U.N.-sanctioned “police action” provides a sufficient check on presidential power. The validity of that argument, however, is belied by these presidential military actions themselves. It is not surprising that both Presidents Bush and Clinton bypassed Congress and the American people, choosing instead to first assemble international support. Of course other nations will approve “police actions” staffed almost entirely by U.S. troops and funded almost entirely by U.S. taxpayers. To be effective, the check on presidential powers must be given to Congress because Congress is directly representative of the American people, who must pay for these “police actions” with their taxes and their blood. International politics cannot adequately substitute for the checks and balances of the Constitution.
The Framers of the Constitution carefully devised a scheme of separation of powers and checks and balances to minimize the dangers of concentrating too much power in the hands of any one person, or group of persons. They would be appalled at the resolutions in Congress expressing unqualified support of the president in whatever actions he should decide to take—resolutions that reveal the degree to which Congress has failed to fulfill its constitutional obligation to act as a check on presidential power. Nothing could be farther from the intent of the Framers. As Thomas Jefferson explained it in 1798, “Free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power. . . . In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”
The Other Costs of War
American involvement in war is too important a matter to be left to the private deliberations of the president and a small group of advisers. Surely the lives of tens of thousands of Americans lost in Korea and Vietnam—wars in which other presidents unilaterally embroiled the country—bear eloquent witness to the other, noneconomic costs of war. Just as surely, the domestic turmoil that resulted from those conflicts, particularly Vietnam, illustrates the danger of presidents’ making commitments that the American people do not wholeheartedly support.
Bill Clinton and his apologists (who include many conservatives as well as so-called “liberals”) defend U.S. involvement in Yugoslavia with the argument that the United States, as the world’s only superpower, has a duty to use its military force for “humanitarian” purposes. The argument assumes that Americans should take the responsibility for the world’s troubles simply because their country is a superpower. But the United States is a superpower—and, indeed, also is the world’s richest nation—because its legal and constitutional system more fully protects free-market capitalism and the rights of the individual than any other system anywhere in the world. Americans should not feel guilty about their wealth or power; they’ve earned it. And simply being successful does not make a nation responsible for the problems of other nations, just as being successful as an individual does not make one responsible for the problems of other individuals. The fundamental rules of morality apply equally to nation-states as to individuals; and the basic rule of morality—the only rule of morality based on reason rather than emotion or mysticism—is the precept “do no harm to others.” Rather than following that basic rule of good behavior (for nation-states as well as for individuals), Bill Clinton has led the United States into acts of aggression that violate the principle. And our so-called “humanitarian” effort—like similar assumed “humanitarian” policies domestically—is in fact exacerbating the problem, for the NATO bombing compounds the atrocities being committed on the people of Kosovo.
Altruism Makes Bad Policy
Morally, the essential flaw in Clinton’s war on Yugoslavia is the principle of altruism that underlies it. By “altruism,” I mean the moral code that asserts that people should sacrifice their own happiness or well-being to the happiness or well-being of others; the moral code that preaches that self-interest is bad but that self-sacrifice is noble, that the proper ethical posture of human beings is that of sacrificial animals to the supposed “good” of society, or some other collective. This moral code of altruism is a very old, traditional moral code that has been responsible for virtually all the evil, all the suffering, that has occurred throughout human history. It is the same moral code that underlies the atrocities being committed in Kosovo itself, where people on both sides of the ethnic conflict (Serbian and Albanian alike) ignore the rights of individuals and instead regard people as significant only as members of a collective (in this case, an ethnic group).
Tyrants throughout human history have justified their tyranny by appealing to some form of collectivism. The pharaohs of ancient Egypt, the emperors of Imperial Rome, and the kings of medieval Europe all called upon their people to sacrifice their individual well-being to that of the collective; and their accomplices were the priests, who appealed to superstition and mysticism—the supposed will of the one or more gods—to convince the people that it was a “sin” not to sacrifice their well-being to the thugs who ran the government.
In more recent times, totalitarian dictators on both the “left” and “right”—Lenin, Stalin, and Mao, as well as Hitler, Mussolini, and Perón—similarly have preached that the individual is nothing, that the collective is everything. They too have been supported by priests of sorts, namely, so-called “intellectuals” who preach either a sectarian or secular form of civic religion that also condemns as sinful the individual’s pursuit of his own happiness or self-interest and extol a “duty” to serve the state. As F. A. Hayek has shown, “the road to serfdom” has taken many paths in the twentieth century. The call for “national service” that Bill Clinton and like-minded collectivists (again, both on the left and the right) made at the President’s Conference on America’s Future in April 1997 differs from the philosophy of other twentieth-century totalitarians only in degree, not in kind.
The principle of altruism makes bad policy, whether in domestic law or in foreign relations. In domestic law, it has made possible the welfare state and all the problems associated with it—not only economically but socially and morally—as David Kelley ably shows in his excellent new book, A Life of One’s Own. In foreign relations, it has made possible a series of wars in the twentieth century, beginning with World War I (and Woodrow Wilson’s campaign to “make the world safe for democracy”), in which young Americans were told it was their duty to sacrifice their lives not for their own country’s freedom or security, but for some fancy of the foreign-policy wonks who advise the President. It’s time that those of us who truly “support our troops”—those of us who believe that the lives of young Americans are too precious to waste on the follies of presidential advisers—show our support for them by calling for the immediate end of this immoral and unconstitutional war.