25 April 2018

The U.S. Should Amend Its Constitution to Reflect the Changing Character of War

Steven Metz

In the horrible days following the 9/11 attacks, America’s full attention was on punishing the culprits and reinforcing its defenses against terrorism. While these tasks clearly had to take priority, the attacks also demonstrated that the United States needed to decide whether its 18th-century Constitution was adequate for national defense in the 21st century. Yet this issue still has yet to receive the consideration that it deserves. Although the United States has poured immense effort, money and blood into the fight against transnational extremism and dramatically augmented homeland security, it has not assessed its constitutional framework for national defense. But there comes a time with any system when repairs, patches and upgrades are not enough. That’s where the United States is today: The security environment and the character of war have changed so much that it is time to seriously consider amending the Constitution.

The Constitution actually says little about war largely because America’s founders intended to avoid it at much as possible. For them, war was conflict between the military forces of “civilized” nations. Armed force to “pacify” Native Americans was so routine that the Constitution did not mention it other than recognizing the need for an armed, well-regulated militia.

To limit involvement in war, the framers of the Constitution made it a shared responsibility between the branches of government. Article I, Section 8 of the Constitution gave Congress the power to declare war, to raise armies and maintain a Navy. Article II, Section 2 made the president commander-in-chief of the armed forces. In broad terms, Congress assented to war and provided the means while the president directed it.

These two design factors—distinguishing war from pacification and sharing responsibility for war between Congress and the executive—made sense in the 19th century. Wars were rare and episodic. Often, the United States could stay out of them all together. When it couldn’t, geography gave America time to prepare and mobilize, and then to demobilize after the fighting, returning to a relatively small Navy and, by great-power standards, a miniscule standing army.

But in the 20th century, several things changed. America assumed global security responsibilities. The founders had wanted the United States to avoid great-power competition and conflict. But as the postwar leader of what was then called the “free world,” America could not. As the speed with which security threats and wars emerged increased dramatically, the United States no longer had the luxury of methodically creating a proficient military when danger could be days or even hours away. And conflict with enemies other than national militaries—whether it’s called counterinsurgency, low-intensity conflict, “operations other than war” or “countering violent extremism”—took on increased strategic significance, invalidating the old distinction between war and pacification. 

An amended Constitution should clarify, in broad terms, how the United States should unify national defense and homeland security.

Even as the old constitutional system for war powers became obsolete, though, there were few efforts to change it. During the Vietnam War, Congress did make a half-hearted attempt to revive its role through the War Powers Resolution of 1973, which was meant to check the president’s authority to commit the U.S. to war without congressional consent. But Congress later approved two broad, post-9/11 authorizations for the use of military force that largely gave the president a blank check. Congress is currently revising these authorizations, but signs are that it will simply update the wording, rather than undertake a fundamental re-examination of how the American political system should function in the 21st-century security environment.

The United States can and must do better than this. The character of war and the nature of security have changed so much since the drafting of the Constitution that it is time to amend it. At a minimum, any amendment should answer three questions.

First, what is “war” in the 21st century? It makes no sense to think of war only as a formal state of hostility between nations while treating military actions against nonstate enemies as something that doesn’t merit mention in the Constitution. An amendment should indicate in broad terms how to approach counterinsurgency, counterterrorism, so-called gray zone conflicts and even cyberwar.

Second, what is the linkage between national security, which is focused on external threats, and homeland security? America’s founders mostly were concerned that another nation might invade the United States. For them, maintaining domestic order was different from defending against external enemies and thus required separate constitutional principles and government organizations. This no longer holds. An amended Constitution should clarify, in broad terms, how the United States should unify national defense and homeland security.

Third, an amended Constitution should clarify and reinforce Congress’ role in the use of armed force. If formal declarations of war are unnecessary, write them out of the Constitution. But at the same time, an amendment should specify what checks on presidential war-making powers are appropriate in this century, with the multitude of security threats and persistent dangers from rogue actors, if not belligerent states. Simply revising the existing authorizations for the use of military force or even enforcing the War Powers Resolution are not enough.

During its history, the United States has recognized many times that evolving political, economic, social and ethical conditions demanded changes to the Constitution. However brilliant the original document was, it has been amended 27 times, most recently in 1992. But for some reason, the United States has tried to simply tweak the Constitution’s treatment of war powers rather than redesign them. This increasingly dangerous situation must be addressed, as American forces continue to fight overseas under a sweeping, post-9/11 military authorization that shows little sign of changing.

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