By Richard Larsen
Published - 06/24/12
There clearly is some misunderstanding about what is deemed
constitutional and what is not. Even if one has the most stringent, literal
interpretation of the governmental powers and rights enumerated in our founding
legal document, the Constitution, there are a lot of changes that have been
made to the literal meaning of the document over the past 223 years.
Those changes are not just in the form of Amendments, of which
we have 27. They also come in the form of legislative statute and Supreme Court
precedent, which have largely redefined the relationship of the average citizen
to the federal government. The result is that very little that is in the
Constitution is literally applied today, much to the consternation of those of
us who believe in freedom and limited governmental power over the individual.
The issue emerged just this last week in an editorialized
news piece by the online news source, New American, which took exception to a
comment that presidential candidate Mitt Romney made to Bob Schieffer on
Sunday’s Face the Nation. Romney said, “I can assure you if I'm
president, the Iranians will have no question but that I will be willing to
take military action if necessary to prevent them from becoming a nuclear
threat to the world. I don't believe at this stage, therefore, if I'm
president that we need to have a war powers approval or special authorization
for military force. The president has that capacity now.”
Actually the Constitution says precious little about the
Declaration of War. Article One, Section Eight only specifies that
"Congress shall have power to...declare War." But clarifying and
applying greater specificity to the wording in the Constitution, Congress
passed The War Powers Act of 1973, which clarified what a “declaration of war,”
is and when it's necessary.
The War Powers Act specifies that the president must notify
Congress within 48 hours of committing armed forces to military action, and forbids
armed forces from remaining for more than 60 days, with an additional 30 day
withdrawal period, without an authorization by Congress. So Romney is correct,
that he would have 90 days to be engaged militarily (a quick strike of nuclear
facilities could take one night). And he would be completely within his
constitutional authority as president, as elucidated by legislative statute.
To illustrate how judicial precedent affects
constitutionality of statute based on constitutionally enumerated powers, a
2001 Supreme Court ruling clarified that Congress doesn't have to pass a
literal "Declaration of War," to authorize the president to engage in
military action. The court ruled that any resolution of support, or
congressional funding of the military action, is equivalent to a Declaration of
War.
While the Constitution is our foundational legal document,
we must remember that we've got nearly 223 years of legislative statute and
judicial precedence that have clarified and refined the original text, whether
we like it or not.
The same has happened with nearly every aspect of the
Constitution. Each legislative statute and each judicial ruling, refines,
redefines or reinterprets aspects of our foundational legal document. If an Act
of congress passes and is signed into law, it builds upon the body of law
interpreting the powers granted to them by our most cherished parchment. If
such an Act is challenged through the judicial system, and is either validated
or invalidated by judicial ruling, the highest jurisdictional ruling on the Act
stands, thereby defining anew some aspect of our relationship with the
Constitution.
We will learn this week, in all likelihood, another aspect
of that relationship. The Supreme Court will release its ruling on whether the
government can mandate whether citizens are required to buy certain products
and services, with their ruling on Obamacare. If they rule it is constitutional
for the government to force us to buy health insurance, governmental control
over our lives will be fundamentally, and perhaps, irreversibly altered.
Aside from policies, personality, and whether our respective
presidential candidates are “in touch with Americans,” this is the most
compelling distinction between Romney and President Obama. Romney has committed
to appoint justices with “strict constructionist, judicial philosophy,” and has
praised Justices Roberts and Alito as characteristic of the kind of justices he
would nominate. President Obama, to the contrary, has appointed two justices
whose judicial disposition is antithetical to strict constitutional
interpretation.
For those of us who believe the founding fathers knew
precisely what they were doing in limiting governmental power in the
Constitution, maintaining the slight constructionist edge on the Supreme Court
is perhaps the most compelling reason to vote for Romney in November. If you
believe in freedom and liberty, it is, in fact, the most compelling reason to
elect, at all levels, leaders who believe we must return to the original intent
of our founding documents.
AP award winning columnist Richard Larsen is
President of Larsen Financial, a brokerage and financial planning firm in
Pocatello, and is a graduate of Idaho State University with a BA in Political
Science and History and former member of the Idaho State Journal Editorial
Board. He can be reached at rlarsenen@cableone.net.