War, the Constitution, and the UN II: Return of the Cosmopolitans

by Joe Miller

Several weeks ago, in my first post on this subject, I argued that the supremacy clause of the U.S. Constitution together with the U.N. Charter's status as a fully-ratified treaty act as a limitation on the conditions under which Congress may legally declare war. The post drew fire from a few readers (okay, I have only a few readers, but those I do have were more vocal than usual in their objections). Brian Doss raised a number of good objections here. Tom Anger offered a few more here and here. While I could hardly reproduce the entire exchange (read the posts; they are worth the time), I did want to address at least a few of the very good issues that Brian and Tom raise. So without further ado, here's my very tardy response.

Here's Brian:

In long, the point again: since the Constitution is the ultimate source of authority in the US government, and as it trumps both law and treaty when there is conflict; and as the Constitution may not be amended by treaty but by manner prescribed by the Constitution; and as it would require an amendment to the Constitution to substantively modify Congress’ warmaking authority; the UN treaty therefore is not a legal constraint upon the US Congress’ warmaking authority, and Congressional AsUMF or declarations of war are necessary and sufficient for a US war’s legality.

And Tom, in a second post on the subject:

There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. . . .

There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty. 33 For example, in Geofroy v. Riggs, 133 U.S. 258, 267 , it declared:

"The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the [354 U.S. 1, 18] government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent."

In sum, a treaty (such as the UN Charter) may neither violate nor change the meaning of the Constitution. The UN, in other words, may not in any way usurp the authority of Congress (or the president) to decide when and in what circumstances the U.S. goes to war.

Tom goes on to cite several other court cases that support his interpretation, signing off by proclaiming the case closed. Tom and Brian may well turn out to be right, but I respectfully submit that the case is hardly closed just yet. Though Tom mentions a number of cases, he neglects to mention that the case law isn't really all that conclusive, since a number of cases have been decided in exactly the opposite direction. In Milliken v Stone (1927), the Supreme Court was asked to consider whether treaty obligations required allowing a British shipping company could continue to ship liquor into the United States during prohibition (the case was dismissed for standing). More directly, in Missouri v. Holland (1920), the Court ruled that a set of regulations that had previously been found unconstitutional was permissible when reenacted in almost identical form pursuant to a treaty with Great Britain. Indeed, the possibility that treaties might override the Constitution is real enough that in 1952, Congress attempted to enact the Bricker amendment. Money quote:

Section 1. A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect. A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.

Section 17 of Peter Suber's The Paradox of Self-Amendment has a detailed discussion of treaties and the constitution. The book is now out of print, but it's available online here.

The proper interpretation of the Supremacy Clause, then, is at least still an open question. Citing case law is unhelpful as the case law cuts both ways. Really, though, I'm not so terribly sure that the legal question matters since there is a more fundamental difficulty with the line that Brian and Tom are pushing. Here's Tom again:

In ratifying the Charter, the Senate essentially surrendered a good chunk of (if not all of) Congress's constitutional authority to declare war. . . . In other words, if the U.S. were to abide by the letter of the UN Charter (as interpreted by the Security Council, not Congress), the president and Congress would be prevented from taking actions that they judge to be in the best interest of Americans. That, it seems to me, vitiates the Framers' intent, which was to place the decision about going to war in the hands of the elected representatives of the people of the United States -- and certainly not in the hands of foreign powers.

And Brian:

I do not believe it is within the power of the US government to cede sovereignty, as the sovereign power is merely delegated to the US government and resident in fact within the people of the United States. Cession of sovereignty would require, as I have mentioned above, a referendum or process at least on par with the original Constitutional Convention, and not simply on a 2/3rds vote of the Senate. Treaties in this sense are like laws, which do not surrender sovereignty but are in fact instantiations of it.

To this point, I quite agree. It is not at all within the power of the U.S. government to cede sovereignty, mainly because I'm not entirely convinced that nations really count as sovereign in any morally defensible sense. The argument here is pretty complicated; I talk about at least a little bit of that argument in my post on political legitimacy and just war theory. The short version is that all of the various possible justifications for a morally legitimate government either fail philosophically or, to the extent that they are morally defensible, fail to apply to any actual state. To talk about states as sovereign, then, is to talk in terms of legal rather than moral or political definitions. Sovereignty is a legal construct; as such, it can attach wherever we define it as attaching. Sovereignty might belong to the citizens of a state, but it doesn't have to. This whole point, though, is really an aside, and I suspect that Brian doesn't really disagree with my claim that states are not morally illegitimate. Philosophical anarchism is one of the few things I have in common with most of the catallarchs.

More significantly, though, my response to Tom's and Brian's objections--and this is a response that really, I think, applies pretty much throughout their posts, is that his objection contains an unargued assumption: namely, that ceding the right to wage non-defensive wars is tantamount to giving up political sovereignty. It's not at all obvious to me that that claim is true, though. Admittedly, I opened this door by suggesting that perhaps my argument came close to ceding sovereignty. I think, in retrospect, that I want to retract that concession. I know that's sort of bad form, but that's the nice thing about working out one's arguments in the blogosphere before putting them in print in a journal somewhere. So I'll just throw myself at the mercy of the court.

To make sense of this point, we would have to first ask what exactly sovereignty entails. That's a tricky question, and it's one that I'm still trying to work my way through. Indeed, it's a question that is increasingly central to my work in just war theory. Roughly, I would say that my sympathies lie (surprise) with the Mill/Walzer legalist model. Relying on what he calls the domestic analogy, Walzer applies Mill's harm principle to nations; a nation, in other words, is entitled to do as it wishes provided that it does not harm other nations. That principle, I think, pretty much sums the legalist understanding of political sovereignty. States are entitled to do whatever they wish within their own borders. Any state that attempts to impose its will on another state by force commits the crime of aggression.

Anyone who takes the harm principle seriously (or at any non-pacifist who takes the harm principle seriously) holds that force, up to and including lethal force, is permissible in defending oneself from serious violations of the harm principle. Holding to the domestic analogy, we would get a similar right for states; a state will be justified in defending itself against aggression. Just as taking the harm principle seriously entails that I must be permitted to use force to defend myself against egregious violations of the principle, so too would sovereignty (or the international version of the harm principle) entail a right for the state to defend itself from an aggressive state. But nothing in the harm principle entitles me to act aggressively; by extension, then, nothing about sovereignty entitles a state to act aggressively.

I submit, therefore, that it is a strange position to hold that a nation that signs away its right to wage aggressive wars has ipso facto signed away its sovereignty. Sovereignty, after all, never did include the right to wage aggressive wars. Unless we are to give up entirely on just war theory and surrender the entire game to the realists, sovereignty simply can't have the right to wage an aggressive war as one of its essential features.

This response ties in to the legal question as well. Perhaps it really is the case that the Constitution does grant to Congress the right to wage non-defensive wars. Perhaps doing so was the Framer's intent as well. In that case, I say so much the worse for the Framer's intent. These are, after all, the same Framer's who intended that slavery be legal in states that desired it, that women be excluded from the franchise, and that slaves be counted as 3/5 of a person. Such intentions are flatly immoral (or in the interest of avoiding begging the question, carrying such intentions into practice is flatly immoral). To the extent that the Framers enshrined these practices into the Constitution, they assumed powers that no one can legitimately have.

So, too, is the power to wage non-defensive wars. No nation may legitimately possess such a power. Accordingly, that power cannot be an essential part of any meaningful definition of sovereignty. To complain of the U.N. Charter as illegitimately stripping sovereignty from the state is equivalent to complaining that, by passing laws against murder, the state illegitimately strips me of my liberty. Whatever we might think of the state, the fact is that I cannot complain about the state on these grounds. Having never actually had the liberty to murder, the state cannot possibly have illegitimately usurped that power from me.