- Fighting Unconstitutional Wars
As a young army lieutenant back in 1967–1969, I developed a real dislike for Congress. It was hard not to resent an institution that sent your buddies off to die in a foolish and futile war in Southeast Asia. To be sure, it was Presidents Lyndon Johnson and Richard Nixon who ordered American troops into combat, but although Congress had not authorized this presidential war, for years it made no effort to stop the fighting. Senators and representatives blathered on about the need to “support our boys,” when to many of us wearing “modern army green,” it was becoming increasingly apparent that the best way to do that was to put an end to the war, not continually appropriate more money to finance it. Incensed about what seemed to me to be the gutlessness of Congress, I used to long for the power to order most of its members to walk point on patrols in Vietnam. Maybe if the war were a matter of life and death for them, rather than just a political issue, they would be a little more responsible.
Reading John Hart Ely’s War and Responsibility rekindled in a balding professor on the far side of fifty the long-repressed rage of a young soldier. In this book, Ely accuses Congress of evading, ever since 1950, its constitutional responsibility to determine whether or not the United States should engage in armed hostilities. The case he makes in support of that charge is an overwhelming one. Less persuasive is his solution to the problem: Ely thinks Congress could be made to do its job by amending the War Powers Resolution of 1973 to give the judiciary the authority to enforce that law. As a cynical veteran turned constitutional law teacher, I am inclined to doubt that the legislation he proposes would accomplish his objective.
One hesitates to disagree with John Hart Ely on any aspect of this subject. A chaired professor of constitutional law at Stanford, Ely is one of the country’s leading authorities on national security law. He teaches a course on the subject and also a seminar on national security litigation. In addition, Ely has written a number of excellent law review articles examining the war [End Page 323] powers of the president and Congress and the constitutionality of America’s military involvement in Southeast Asia. 1
War and Responsibility reads like a series of such articles. Although Ely’s subtitle might suggest that he has written the constitutional history of the Vietnam War we have long needed, such is not the case. His copious endnotes establish his familiarity with relevant historical literature, and he has made effective use of published primary sources. But Ely has done no manuscript research. His book relies heavily on those staples of legal scholarship: statutes, congressional hearings and committee reports, published appellate opinions, and law review articles.
The notes are what one would expect to find in a law review article. They are extremely long, occupying 100 of the book’s 238 pages, and also extremely rich, containing important information and valuable ideas that most historians would probably have put in the text. For example, Ely consigns to a three-page single-spaced endnote a discussion of the alternative procedures and remedies that would be available to a court confronted with a suit to enforce the War Powers Resolution. Along with important information of this type, his notes include a collection of chatty comments, such as “Professor Rostow [whose position Ely is criticizing] was the dean when I was in law school — on some level probably one of the reasons I made the otherwise inexplicable choice to become a dean myself” (p. 187n92).
Material of this type, familiar to readers of law reviews, offers periodic reminders that War and Responsibility is really a collection of the kind of disputatious essays that fill such publications. Although its six chapters do have a common theme, this is not a tightly structured monograph. Rather...