Constitutional Law
Law Prof Says Scalia Will Love His Original Intent Claim in Iraq Case
Posted Apr 22, 2009 12:29 PM CST
By Debra Cassens Weiss
Rutgers University law professor Frank Askin contended in court arguments yesterday that the Iraq invasion violated the framers’ original intent.
Askin contends the Iraq war is unconstitutional because Congress did not declare war on the country, the New Jersey Star-Ledger reports. U.S. District Judge Jose Linares is considering whether to dismiss Askin’s suit, filed on behalf of the group New Jersey Peace Action.
The government argues in support of dismissal that Congress engaged in vigorous debate before giving President Bush authority to send troops to Iraq.
The goal of the suit, filed on behalf of two women whose sons served in Iraq, is to make sure future presidents don’t interfere with Congress’ authority to declare war, Askin said.
He told the Star-Ledger that conservatives don’t have a monopoly on original intent arguments. Conservative Justice Antonin Scalia is a leading proponent of the theory, and Askin thinks he could take an interest in the arguments.
"We think Scalia is going to love this case,” Askin told the newspaper. “It's all about the initial intent of the founders.”
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Comments
J.D.
Apr 22, 2009 12:49 PM CST
The activist’s a little misguided, but plenty of conservatives are sympathetic to the argument that Congress should have played their constitutional role by declaring or not declaring war.
The fact that we could be doing what we’re doing without a Congressional declaration speaks to the massive growth in power by the Executive Branch.
At least some conservatives want to rein in the power (not the neocons), but unfortunately the liberals unequivocally want to grow the federal government. To the left and the neocons, separation of powers is a hindrance to supreme rule.
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B. McLeod
Apr 22, 2009 1:58 PM CST
Iraq is also a member of the United Nations, and the unprovoked attack ordered by the Bush administration was a direct and substantial violation of the treaty obligations to which the United States subscribed under the UN Charter. To wage an aggressive war, depose the leader of a sovereign member state, kill members of his family, and occupy the country in derogation of its people’s right to self-determination was unquestionably illegal.
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J.D.
Apr 22, 2009 3:25 PM CST
^ Let’s not pretend we attacked Canada. Methinks you’re leaving out a few tidbits of information here and there.
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B. McLeod
Apr 22, 2009 3:52 PM CST
The UN Charter was approved by the United States in 1945. Hence, it was not yet in effect when we attacked Canada.
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Brian
Apr 23, 2009 7:23 AM CST
Force and occupation without a declaration of war is not a new concept in the US. At least 125 times, the US President has used force without express authorization from Congress let alone a declaration of war. (http://www.usdoj.gov/olc/warpowers925.htm)
Although the article is brief, this juris appears to be focusing on the “text” of the constitution (i.e. “to declare war”) rather than the “original intent” of the framers. These two philosophies can be very different depending on the circumstances. In this case, the intent of the framers can be seen by viewing early documents and discussions of the framers.
In sum, it is a weak argument that sounds great for the papers but one that Scalia is almost certainly not going to buy.
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Mike Appleton
Apr 24, 2009 7:36 AM CST
Government is an organism. The whole idea of checks and balances is to prevent one branch from becoming disfunctional. The fact that the executive branch overreached during the Bush administration means that the legislative branch wasn’t doing its job to prevent those excesses. Therefore, Congress’ rush to distance itself from Bush is hypocritical and a pathetic effort to avoid accountability for permitting an out-of-control executive.
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Mikey
Apr 24, 2009 8:16 AM CST
As a libertarian-leaning “conservative” (whatever that means these days), I agree wholeheartedly that the Bush Admin. abused power, and with #6’s comment that Congress - Repubs and Dems alike - was complicit therein. But any of you “liberals” out there (again, whatever that means these days) who think that Obama will not seek to exercise every bit of power that Bush did—and a whole lot more—are deluding yourselves. What was that latest thing he’s doing in Afghanistan again? Oh yeah, a SURGE—which he roundly criticized Bush & McCain for supporting in Iraq. And I don’t seem to recall Obama seeking a declaration of war for new ops in Afghanistan either.
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Joe Schmoe
Apr 24, 2009 3:51 PM CST
Scalia is a proponent of “original meaning,” NOT “original intent.” In other words, Scalia is only interested in what the actual text meant to an ordinary person at the time it was written. He doesn’t care about the subjective “intent” of the individuals who wrote that text.
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B. McLeod
Apr 24, 2009 11:05 PM CST
#6, quite right. Congress shares the blame.
#7, Afghanistan is not Iraq. While my jaw dropped the day I saw television reports that we had attacked the entire nation of Afghanistan to (at least ostensibly) go after Bin Laden, at least Bin Laden is thought to be somewhere in the country. Also, the Taliban accused of sheltering Bin Laden were generally unrecognized by the international community as a sovereign government of Afghanistan. By contrast, Iraq’s government was recognized as sovereign and a member government of the United Nations, and had no connection with Bin Laden or any attack on the United States. Hence, the two wars (though both extremely poor policy choices) are not the same. I believe President Obama’s proposal to increase troop strength in Afghanistan is intended: 1) to bat cleanup on the cocked up Bush effort (if it can even be called that) to run down Bin Laden; and, 2) to relieve Taliban pressures on nuclear Pakistan that arose primarily as unintended consequences of the clumsy Bush policy in Afghanistan. I believe that the step is probably necessary, and that the Afghan war, once started, should always have had priority over the pointless enslavement of Iraq. A wise nation does not attack where there is no enemy. Errors in this regard have a way of making enemies unnecessarily, leading to many regrettable and fruitless deaths.
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