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hero to boot. A sizable chunk of the populace would appear to have a “Right on, Bernie” attitude. And we should expect that he will be given the opportunity to make a small fortune by a variety of supposedly well-educated, profitseeking individuals from the media. Indeed if he plays his cards right he could make a career of his notoriety, like G. Gordon Liddy did. And speaking of G. Gordon, who should move Bernie Goetz off the front pages but another can-do guy from the White House, 011ie North a lean, mean, foreign-policy-makin’. machine. He’s a “plumber” for the ’80s: the details of his operation didn’t even leak to the President. And therein, obviously, lies the problem. The people, through their representatives, didn’t consent to Colonel North’s projects. And though it would surely be a good thing if the President in question were able to keep a little closer track of his team, it still follows that the Colonel is a usurper, as is his collaborator the Admiral. They were working outside the authority structure. They were not publicly accountable. They were, to be sure, well-motivated. 011ie in particular appears to be so full of love that there just wouldn’t be room for anything else. He loves God, his wife, his children, Ronald Reagan, the flag, the Marines, the Contras and all those people who sent wires. Still, even a cursory inspection of history will reveal that it’s a rare usurper indeed that later claims he did it all out of a simple lust for power. Locke and the framers of the Constitution certainly knew this. It is a basic fact of human nature that individuals will be tempted to usurp power. And it is a further fact that in a commonwealth such usurpation is always dangerous, no matter how noble its rhetoric. For it threatens to re-establish the State of Nature. And that’s a situation, as Locke’s predecessor Thomas Hobbes remarked, where life is “solitary, poor, nasty, brutish and short.” So what’s wrong with this picture? For starters, we are at once celebrating the wisdom contained in a document designed, among other things, to eliminate the very kinds of acts that have made instant “heroes” of Bernhard Goetz and Oliver North. Of course their celebrity might not exceed the 15 minutes typical of media events it’s hard to stay on the cover of People. But that it has happened in the bicentennial year of the Constitution is a cultural contradiction that’s hard to miss. The wise men from Philly would be disappointed, to say the least. Perhaps we should go back to making schoolchildren read Voltaire, Rousseau, Hobbes and Locke? AMERICAN FORCES HAVE, since World War II, fought in Korea, Vietnam and Central America. We are used to debating whether it is wise for American troops to be involved in such conflicts. We may, in our concern about whether the decision to fight is correct, forget that the Constitution has something vital to say about who has the power to make such a decision. At the Constitutional Convention in Philadelphia in 1787, the first draft of Article I gave Congress the power to “make” war. In the debates that followed, the word was changed to “declare.” Congress was also given the power to raise an army and to call forth the militia to repel invasion. The president was made commander in chief of the armed forces, and in Article 2 was given the power to “repel sudden attacks.” Also, Congress was indisputably given power to appropriate funds and to set forth limits on the Michael E. Tigar is the Thomas Watt Gregory Professor of Law at the University of Texas Law School. This essay originally appeared in the Austin American-Statesman and is reprinted with permission. 12 SEPTEMBER 11, 1987 purposes for which funds could be expended. These constitutional provisions are at the basis of today’s debate over American military involvement in Central America. They were also invoked, with different interpretations, by supporters and opponents of American military action in Vietnam. The Constitution gives Congress the exclusive power to declare war and does not give the president power to conduct undeclared wars. However, these recent conflicts were not the first time this constitutional debate has arisen. When Abraham Lincoln was a freshman Congressman from Illinois, there was a great public debate over the Mexican War a conflict with which Texans are familiar. Lincoln thought President Polk’s policies had provoked conflict with Mexico. According to Lincoln, the people who wrote the Constitution gave the warmaking power to Congress because “kings had always been involving and impoverishing their people in wars. . . . This, our [constitutional] convention understood to be the most oppressive of all kingly oppressions; and they resolved to so frame the constitution that no one man should have the power of bringing this oppression upon us.” But if the president can command the armed forces, can he not send them to places of combat and provoke a conflict, so that Congress will have no choice but to authorize a war? Lincoln clearly thought that a president had no such power, and that his role was to repel attacks and not to court danger. During the debates on ratification of the Constitution, the statesman and orator Patrick Henry who had made the famous “give me liberty or give me death” speech objected to the president’s power over the armed forces. He said, “If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute! The army is in his hands.” Although the Constitution does not bestow this power in so many words, the president is generally conceded to have the power to conduct foreign policy, subject to the Senate’s function of ratifying treaties with other nations. Some people have argued that this power carries along with it the power to take foreign policy actions that may provoke armed conflict, or to make commitments to other nations that may require the use of American armed forces. In sum, the Constitutional Convention divided up power over the armed forces between the president and Congress in a way that raises hard questions about The Constitution and the Power to Wage War By Michael E. Tigar