Sometime in the last month, as the Obama administration struggled to justify military action in Syria and grasped for whichever theory of war powers it found convenient each day, it became clear that the present delegation of those powers is not working. Far from proving its legitimacy, the fact that President Obama’s belated nod to Article I of the Constitution’s fairly clear “Congress shall have the power…to declare war” surprised the whole world -- including constitutional scholars of left and right -- proves it a self-interested, if welcome, exception to what many years ago became the new rule: When considering war, the executive branch’s obligations to Congress and the Constitution are whatever it says they are.
True, when the administration chose to consult the supposed representatives of the American people it found that the public was strongly opposed to bombing Syria and to offensive U.S. military action generally. Only 33 percent of Americans thought Congress should approve the Syria strikes, while an astounding 62 percent agreed that the U.S. “should not take the leading role among all other countries in the world in trying to solve international conflicts.” Congress, to its rare credit, responded appropriately, with several senators and representatives citing “overwhelming disapproval” from voters as their reason for opposing an otherwise potentially splendid little war.
But what if Congress defied the people? That is hardly inconceivable these days — or ever. What if Obama — or, in 2017, Clinton or Christie — exercised the president’s self-declared right to engage in a major non-defensive military action without congressional approval? In 2011, Obama openly defied not only Article I but also the relatively limpid requirements of the 1973 War Powers Resolution by refusing to seek authorization from Congress for bombing and continuing to bomb Libya. The administration argued that approval was not required because U.S. ground troops were not involved, a claim we now know was far from true. Given the miasma of war-power theories, unilateral intervention will always be an option in any president’s arsenal for solving international, and conceivably domestic, conflicts in the future.
Sure, voters could elect a new Congress and a new president who would pledge to respect the anti-intervention sentiments of the vast majority of Americans. But that takes time, and the world is conveniently flat. With both Syria and Iran threatening to retaliate against Israel had the U.S. attacked, Russian warships patrolling the Mediterranean, and dark talk of August 1914, perhaps it is no longer clear that representative government is still the most effective means of channeling popular sentiment about the desirability, efficacy and morality of proposed military action. Perhaps the people who would be tasked with fighting and paying for war should be directly asked whether they agree there ought to be one.
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On Dec. 12, 1937, Japanese warplanes bombed and sank the USS Panay and the three Standard Oil ships it had been escorting up the Yangtze River near Nanking, China. Three Americans died, dozens were wounded. Hostility to Japan increased, but so did demands from pacifists and isolationists for President Franklin Roosevelt, pronouncing himself “amazed and concerned” by the incident, to avoid war at all cost.
Louis Ludlow, an obscure Democratic congressman from Indiana, found renewed interest in a bill he had unsuccessfully introduced in every session of the previous three years: a constitutional amendment requiring that a popular referendum be held to decide whether the country would go to war.
The idea can be traced back at least to the Marquis de Condorcet, a radical democratic philosopher who died in 1794 while imprisoned for opposing the execution of King Louis XVI, and Immanuel Kant, who argued that if given the power to decide whether the country should go to war the people would “consider very carefully whether to enter into such a terrible game.” It was occasionally raised in the 19thcentury United States, including by an ardent California pacifist suggesting, in 1864, that citizens be required to vote on whether to continue the civil war and that both yes-voters and abstainers be conscripted into the Army if war were approved. After 1914, when the country appeared on the verge of being dragged into the Great War in Europe, much of the pacifist community at the time — an overwhelmingly genteel bunch — rallied around the proposal as the only way of keeping the U.S. out. “Let the people rule,” former Secretary of State William Jennings Bryan wrote in his weekly magazine, the Commoner. “Nowhere is their rule more needed than in deciding upon war policies — nowhere would their influence be more salutary.”
Most of the war referendum proposals of the time were not constitutional amendments but one-time bills designed to address the immediate conflict, and were only advisory, based on the assumption that if most voters opposed declaring war the government would necessarily be shamed into obedience. They also carved out exemptions for invasion or insurrection, when the referendum requirement would not apply. The Wilson administration and its allies rejected the idea as impractical, while many on the left objected that the government could easily doctor sufficient evidence to invoke the invasion clause, thereby permitting it to plunge the country into unnecessary, costly, immoral wars just as easily as it always had.
But principled pacifism was not the only motivation for the widespread support among progressives of both major parties — and the Socialists, who put it in their 1916 platform — for the war referendum plan. It was also rooted in the belief that American efforts to promote democracy and liberalism abroad would necessarily be accompanied, as they always had been, by the rollback of democracy and liberalism at home. Indeed, proponents of a referendum on war, including a sitting congressman, were among those targeted for persecution by a vengeful, red-baiting executive branch immediately following the end of the war.
The referendum then became a complement to other mechanisms like the League of Nations as part of what the scholar Ernest C. Bolt described in his 1977 book, "Ballots Before Bullets: The War Referendum Approach to Peace in America, 1914-1941," as “an international experiment in democratic control and a means toward peace divorced from the use of force in diplomacy.” It attracted the support of respected liberal senators like Robert La Follette of Wisconsin, George Norris of Nebraska, William Borah of Idaho, and Thomas Gore of Oklahoma (Gore Vidal’s grandfather).
Reflecting a growing desire to export what Bolt calls “diplomatic majoritarianism,” Winifred Mason Huck of Illinois, the third woman ever elected to Congress and a fierce opponent of what she called the “dollar war,” devoted her single term in the House to pressing for two bills: a constitutional amendment requiring a referendum on war and a ban on American economic relations with any country that did not adopt the referendum as well. Both failed, but Wilhelm Cuno, chancellor of the Weimar Republic from November 1922 to August 1923, included a Europe-wide war referendum requirement in a set of failed peace plans — midwifed by the U.S. ambassador to Germany and Secretary of State Charles Evans Hughes — meant to stave off a German economic collapse and consequent pitch to the hard right. France, rejecting the plan after the U.S. refused to guarantee enforcement, occupied Germany’s industry-rich Ruhr Valley as collateral for insufficient reparations payments, the Cuno government fell, Hitler fired a warning shot into the ceiling of a Munich beer hall, and, well, you know the rest.
In 1924, both the Democrats, who nominated John Davis, and the Progressives, led by La Follette, endorsed a war referendum amendment to the Constitution. “Those who furnish the blood and bear the burdens imposed by war should, whenever possible, be consulted before this supreme sacrifice is required of them,” the Democratic platform read. Bryan’s loyalty to the Democratic Party, despite Davis’ conservatism, split the progressive vote and a prosperous economy convinced Americans to “Keep Cool With Coolidge,” but the referendum idea was overwhelmingly popular. In "Ballots Before Bullets," Bolt reports that it was one among several tools to democratize and limit war which many U.S. citizens in 1924 considered “just, realistic, and, above all, American.”
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“A moderate Democrat but a radical democrat,” in the words of historian H.W. Brands, Louis Ludlow was born in a log cabin about 60 miles east of Indianapolis in 1873. Beginning in 1901 he served as Washington, D.C., correspondent for local Indiana newspapers, eventually becoming vice-president of the National Press Club and winning election to Congress in 1928. Ludlow became interested in the war referendum when he covered the neutrality debates in Washington during World War I, but was galvanized by a major 1934 Senate investigation into wartime profiteering by arms manufacturers. The referendum was needed, Ludlow wrote to President Roosevelt, because there was a “constant danger of the United States being forced into war by the rapacity and greed of the munitions makers.”
Never before had the referendum proposal enjoyed such fertile support. While some saw the Ludlow plan — which would make the referendum result binding — as a complement to the now-infamous 1928 Kellogg-Briand Pact banning war, others, including one referendum supporter who called the pact “a scrap of paper,” thought the Ludlow bill would finally bite where outlawry had merely barked. In October 1937, before the sinking of the Panay, 73 percent of Americans supported the referendum amendment; around the same time, 95 percent expressed opposition to future American involvement in European wars. Ludlow needed 218 votes in the House of Representatives to get the bill out of the Judiciary Committee, where the chairman had it stalled, and to the floor for debate. Before Panay, he had 194 committed names.
That summer, Japan’s meddling in China had taken a dramatic and violent turn, climaxing in a full-scale invasion and the fall of Beijing and Shanghai. Ludlow and his allies unsuccessfully begged Roosevelt to order the more than 7,000 Americans in China, including many employees of Standard Oil affiliates, to leave, rather than risk U.S. involvement in the war. In the fall, the Japanese invading force advanced on Nanking, the capital of the Republic of China, from which the American puppet Chiang Kai-shek soon fled with orders to subordinates to guard the port lest any citizens try to escape the impending massacre. The Panay, with the Standard Oil ships, was engaged in an effort to evacuate American lives and property from the city when it came under attack by Japanese pilots who apparently assumed the ships were helping Chinese troops flee. Nearly 400,000 Chinese soldiers and civilians died in Nanking that month, but it was the sunken American ships that prompted Roosevelt to demand from Emperor Hirohito himself the assurance that such an incident would never happen again.
Ludlow’s petition to force his referendum bill to the House floor soon reached the threshold of 218 votes, while supporters of the Roosevelt administration — ignoring that it exempted instances of invasion, hinting at foreign influence, and declaring that even openly debating the idea would jeopardize Roosevelt’s fragile negotiations with Japan — maneuvered behind the scenes to defeat it. Though today’s right-wing isolationists might be heartened to learn that Father Charles Coughlin supported Ludlow’s referendum amendment, the Christian Century, a progressive publication, warned that a president who lost a war referendum vote might turn to fascism to get his way. Favoring the bill, Everett Dirksen of Illinois, for whom a Senate office building is now named, implied that Roosevelt may have covertly arranged the Panay incident to manufacture a pretext for war. Meanwhile, a vigorous public debate played out in the press. “One Who Believes in Peace,” in a letter to the Pittsburgh Press, wrote:
Think it over. When and if Japan signifies her intention of putting American business interests out of China and taking over herself, are you willing to sacrifice your life to protect the property of Standard Oil and perhaps a few other wealthy business interests that have no right to be there in the first place? Is it worth the life of your son, husband, sweetheart, or father? The State Department and the President, who shape the foreign policy of the country, are pursuing a policy that indicates their belief that it is, and that they intend to fight for these interests…
We hear the claim put forth that our senators and congressmen reflect the attitude of the people, and should have the authority to declare war without referendum. To say that our legislators reflect the attitude of the people is false. They have nothing to lose—they will not be called upon to die—therefore their mental processes will be entirely different from those who will be called upon to sacrifice their own or their loved ones’ lives…
If our armed forces had not been in China, this threat to our peace would not have occurred. Our armed forces are still there. Think it over.
Strong opposition from the administration did not necessarily entail support from leftist critics. In The Nation, the Abraham Lincoln Brigade veteran and former Russia correspondent Louis Fischer ridiculed the proposal as a “frail dam” against the tides of war, and Hal Draper, brother of the historian Theodore Draper, writing in the Trotskyist New International a few months later, argued that referendum supporters like Ludlow and Robert La Follette Jr., by amending the resolution to exempt invasions anywhere in the Western Hemisphere so as to accommodate the Monroe Doctrine, were tools of the bourgeois-capitalist war conspiracy. “It would be inaccurate to say that this resolution has some loopholes,” Draper concluded. “It consists of little else.”
On the day of the vote, Jan. 10, 1938, it appeared that Ludlow had enough support to move his amendment out of committee, but that abruptly changed when the Democratic Speaker of the House, William Bankhead, stepped from the rostrum to the well and read a letter from President Roosevelt:
I consider that the proposed amendment would be impracticable in its application and incompatible with our representative form of government...Such an amendment to the Constitution as that proposed would cripple any President in his conduct of our foreign relations, and it would encourage other nations to believe that they could violate American rights with impunity.
Despite this extraordinary intervention by the president, the Ludlow amendment failed to get out of committee by only 209-188. The desperation of the administration and its allies was so great that two ailing congressmen were rolled into the House to vote against it.
As the historian Arthur Scherr has shown, Roosevelt’s efforts to defeat Ludlow’s referendum bill, combined with public approval of his handling of the Panay crisis and Hitler’s invasion of Czechoslovakia in March 1939, led to a sharp decline in public approval of the idea, which Ludlow and others continued to introduce until the Pearl Harbor attack of December 1941 — to which, as it occurred in a U.S. territorial possession, the referendum requirement would not have applied anyway. Ludlow supported the administration throughout the war and amended his previous isolationism enough to support U.S. membership in the United Nations afterward, though he hoped its charter would eventually be amended to enshrine the war referendum in international law. He opposed the beginning of the Cold War, and in 1948, retiring due to illness, reminded Congress of something the former president Benjamin Harrison once said to him in an interview a half-century earlier: “We have no commission from God to police the world.”
By that point, though, Ludlow believed U.S. foreign entanglements had grown too thorny to accommodate democratization. It was the American century, so-called, and he said it was “too late for war referendums.” Ludlow died in 1950, fittingly: with Harry Truman’s “police action” in Korea beginning a few months earlier, the era of undeclared U.S. wars had officially commenced.
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In his Pulitzer-winning "Freedom From Fear: The American People in Depression and War, 1929-1945," Stanford historian David Kennedy calls Ludlow’s war referendum plan “a transparently silly idea, accurately likened by critics to convening a town meeting before authorizing the fire department to put out a blaze.”
Rather, imagine this scenario: There is a town whose fire department, acting essentially on its own volition for as long as anyone can remember, takes its expensive, taxpayer-bought engines out on long joyrides once every couple of years. The ostensible point is to extinguish fires in distant counties, but sometimes it’s not so clear who started the fire, how the fire affects the town, or, sometimes, whether there is even a fire at all. The department does this at immense cost to the people of the town, who have great unmet needs — including some small fires that deserve the fire department’s attention—and have grown weary with the department’s expeditions.
The townspeople begin to realize that their founding charter — which is the whole reason they became a town in the first place and basically the only thing holding the place together — says that the town council is supposed to decide what the fire department can and cannot do. The fire department itself is just supposed to, you know, put out fires. But the top people on the town council are best buds with the top people in the fire department, plus the town council needs the fire department in case the council knows of any fires — or, “fires” — that need putting out. If you’re a town council, the fire department is really important to have on your side; if you’re a fire department and you love expeditions — how could you not, with those awesome machines — it’s super helpful when the town council just looks the other way.
Before the fire department even realizes it — probably it is busy planning the next expedition — the people of the town realize, hey, maybe those relations have something to do with the town council conveniently forgetting about the power they’re supposed to have over the fire department. Motivated by a healthy skepticism about the department’s intentions — which the guys who wrote the town charter hoped the town council would take care of, but apparently they didn’t foresee all the ways in which the council itself might fall prey to the fire department’s possibly self-interested machinations — the people decide to have a town meeting so that when the fire department says they’re going to go put down a fire in some distant county, from now on the people themselves will make sure that the fire was actually set by the enemies of the people of the town, that the fire actually could possibly hurt the people of the town, and, of course, that there really is a fire.
Is that such a silly idea?
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In a recent New York Times Op-Ed, liberal interventionist Michael Ignatieff argued that the American people’s skepticism of military action against Syria could be traced to “public anger at the manipulation of consent: disillusion with the way in which leaders and policy elites have used moral and humanitarian arguments for the use of force in Iraq and Libya, and then conducted those interventions in ways that betrayed their lack of true commitment to those principles.” After bullet-pointing a P.R. campaign for the Obama administration to defeat that skepticism, Ignatieff explicitly invoked Kant’s argument for popular consent in declarations of war, and concluded: “Democratic legitimacy is not a substitute for international legality” — which test Ignatieff admitted the threatened strikes would fail — “but it performs one of the crucial functions of law, which is to subject the use of force to strict control.”
True enough, but the major premise is too optimistic: majorities in Congress or in public opinion polls do not democratic legitimacy make. In matters of war perhaps even more than other issues, senators and representatives are far more responsible to the moneyed interests who bankroll their campaigns than to the voters forced to choose between only two candidates. And modern polls, which didn’t exist until the mid-1930s, are roughly equivalent to the early idea of a merely advisory war referendum, which one supporter of a binding vote warned would be “supremely irrelevant to people who are willing to use war as an instrument in the working-out of national policy.” If Ignatieff actually meant what he wrote — rather than mapping out a strategy for the fire-department to be able to go on future adventures — he would have to support a constitutional amendment for a war referendum. “Strict control” is non-existent without it.
The week after the Panay incident, Roosevelt met with his cabinet to discuss ideas for retaliation against Japan, including a naval quarantine. According to the diaries of Treasury Secretary Henry Morgenthau, the president asked: “After all, if Italy and Japan have evolved a technique of fighting without declaring war, why can’t we develop a similar one?” If Mussolini or Hirohito were around today, the envy would surely be theirs.