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Originalism and Current Practices

With a view towards President Obama’s military actions against ISIS, Mike Ramsey has a good post on whether the significant limits imposed by the Constitution’s original meaning on the President’s power to initiate hostilities operate to place inconvenient constraints on the US’s ability to take desirable actions. Mike concludes that the original meaning’s constraints, while considerable, would still allow the US significant ability to take action.

Mike writes that the President: “has independent power to respond to attacks . . . on the United States”; to “deply troops to defensive positions in support of an ally” (and to respond if those troops are attacked); and to “transfer weapons and supplies to allied forces” (which in my opinion should have been done a long time ago).

He also writes: “Congress can delegate to the President the power to use force if the President thinks necessary” and therefore “Congress could have (and probably should have) delegated to the President temporary authority to deal militarily with ISIS prior to leaving on vacation.” And finally the Constitution allows the President to call the Congress into session, which with modern transportation, would allow quick action.

I think there is an important point here about how to apply the original meaning to the present world.  In a world governed by the original meaning – where both the President and the Congress understand the original meaning and follow it – practices and institutions can be developed that allow for a workable government that conforms to the original meaning.  By contrast, if one simply imagines applying the original meaning to our existing world, which does not have those understandings or practices, the original meaning may seem burdensome.

For example, if the Congress really believed that the President could not and would not act against ISIS without authorization, it could have and would have delegated to him authority to act before leaving on vacation.  Similarly, if the Congress refused to provide such authority to the President, then he could still provide arms to the Kurds, which would not require congressional authorization.

The basic point is that people often dismiss the original meaning as impractical or undesirable because it does not coordinate well with current practices.  But that is because current practices have been developed in response to nonoriginalist rules of law.  If the original meaning were accepted – or required by the courts or some other entity – then the practices would adapt.

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