Author Interview: Dale Carpenter on 'Flagrant Conduct: The Story of Lawrence v. Texas'

Speaking at a book forum sponsored by the Cato Institute on March 16, 2012, Washington Post editorial writer (and former Supreme Court reporter) Charles Lane said the “true importance” of the 2003 high court decision in Lawrence v. Texas “is as a cultural milestone” and that it reflected how the country’s “zeitgeist had radically shifted since 1986,” the year of Bowers v. Hardwick, a decision that upheld Georgia’s sodomy law and which was overturned by Lawrence 17 years later.

Lane was responding to comments by University of Minnesota law professor Dale Carpenter, who was presenting his new book, Flagrant Conduct: The Story of Lawrence v. Texas. For his own part, Carpenter compared the Lawrence decision, in its effect on the lives of gay and lesbian Americans, to Brown v. Board of Education and its effect on African-Americans and race relations.

After his presentation, Carpenter talked to me about his book, what he learned in his research, and the larger impact of the Supreme Court’s decision now and in the future.

Carpenter, who teaches courses in constitutional law and sexual orientation and the law, began writing Flagrant Conduct more than eight years ago. Its first form was an article for the Michigan Law Review (which he describes as “a microcosm of this book”) that ended up in the hands of a senior editor at W.W. Norton and Company, who suggested he turn the article into a book and eventually published it.

Dale Carpenter

Writing the book required “quite a bit of legwork and research,” including dozens of interviews with people involved with the case, from the officers who arrested John Lawrence (whose name is in the case title) and Tyron Garner to law clerks and prosecuting attorneys, gay-rights activists in Texas, and, finally, Lawrence himself, who granted Carpenter his only interview about the case and its circumstances, just six months before he died.

Their meeting, Carpenter said, “was emotional.”

U.S. Navy veteran Lawrence, he explained, “never got a trial. He never got to talk about his side. He never got to tell his story and” talking to Carpenter “was his chance finally to tell his story when he knew he was in poor health and would not live long.”


No sex, please

The most startling finding from Carpenter’s research was that, contrary to the long-assumed facts of the case, Lawrence and Garner were not having sex when they were arrested on September 17, 1998 – a date, Carpenter pointed out, that Americans mark as Constitution Day.

Though they were not having sex, Carpenter said, “the police nevertheless arrested them and hauled them off to jail.”

That arrest set off a chain of events that eventually led to the Supreme Court’s historic decision, written by Justice Anthony Kennedy with a strong dissent by Justice Anton Scalia and another, extremely brief dissent by Justice Clarence Thomas, who pronounced the law “silly” and said if he were a legislator, he would vote to repeal it.

That Lawrence and Garner were not engaged in a sex act – and thus violating the Texas “Homosexual Conduct Law” – “was not widely known anywhere” and that information was first revealed by Carpenter in his 2004 Michigan Law Review article but, he noted modestly, “it is becoming more widely known now because of the book.”

The law that Lawrence was arrested under enabled police officials – in this particular case, the Harris County sheriff’s department – “to use their authority in an abusive and arbitrary way,” and, by overturning the Texas sodomy law and other, similar laws on the books in other states, the Supreme Court limited that form of police misconduct.

“The larger impact” of the Lawrence ruling, Carpenter explained, “ was getting rid of a precedent that wreaked havoc in the lives of gay men and lesbians in every area of life from family law to the military to relationship recognition, denying them their children, housing, employment, and everything else that we expect” as American citizens.

“The other legacy of this case,” he added, “may be yet to come in the form of more formal recognition of same-sex relationships and protection for families headed by same-sex couples. “

That, he concluded, “we’ll have to see.”

Adapted from an earlier article on Examiner.com.

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Virginia Festival of the Book 2014 - First Amendment & Free Speech

At the 2014 Virginia Festival of the Book in Charlottesville, there was a panel discussion about freedom of speech sponsored by the Thomas Jefferson Center for the Protection of Free Expression and moderated by the center's director, Josh Wheeler. The panelists were authors Floyd Abrams and Ronald K.L. Collins, who talked about free speech and the First Amendment, and how protecting freedom of speech sometimes comes in conflict with other values of a liberal society.

Attorney Floyd Abrams is a partner with the law firm of Cahill Gordon & Reindel LLP and the author of a recent book, Friend of the Court: On the Front Lines with the First Amendment.

Ron Collins teaches law at the University of Washington and is the author of a book about Abrams, Nuanced Absolutism: Floyd Abrams & the First Amendment.

Here is video of the full discussion, recorded in the Charlottesville City Council Chambers on March 22, 2014:

To read my interview with Abrams conducted immediately after the panel discussion, visit Examiner.com. To hear the full audio interview with Abrams and another interview with Josh Wheeler about the Virginia Festival of the Book event as well as the annual Muzzle Awards, visit Bearing Drift's March 29 podcast on "The Score."

For more posts about the Virginia Festival of the Book, look here.

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Author Interview: John W. Whitehead on 'A Government of Wolves'

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John W. Whitehead

After 40 years of practicing law, Rutherford Institute founder John Whitehead says he is “creeped out” by the decline in respect for civil liberties in the United States.

Whitehead, author of the 2013 book, A Government of Wolves: The Emerging American Police State, spoke to me last June at the Barracks Road Barnes & Noble just before delivering a talk about his fears of increasing authoritarianism in the United States.

A longtime civil-liberties attorney who once represented Paula Jones in her lawsuit against President Bill Clinton, he is also the author of The Freedom Wars, The Second American Revolution, and The Change Manifesto, in addition to a memoir, Slaying Dragons.

Whitehead offered his assessment of the 2012-13 U.S. Supreme Court term that had ended just days before our interview with a pair of rulings about gay marriage.

“One of the worst” terms ever, he said sharply.

This year, he said, the Supreme Court “basically upheld policemen taking you into custody and not giving you your Miranda warnings.” The Court also, he explained, eroded the Fifth Amendment privilege against self-incrimination because “now by being silent it's evidence of guilt.”

The Court, he added “approved the strip searching of anybody. If you're arrested now you can be strip searched by police for minor offenses like running a stop sign.”

“What I'm seeing is a very statist Supreme Court,” Whitehead explained.

“Some people say it's a right-wing Supreme Court. Well, I'm not sure it's right-wing. I put it more in the statist camp.”

He said the voting rights decision (in Shelby County v. Holder) was made “as if racism's no longer in America. Well, what I'm seeing in America is, there is a lot of racism.”

He gave the example of how “90 percent of the people who are arrested for marijuana offenses in New York City are either African-American or Hispanic but all evidence shows that whites smoke marijuana at a much higher rate than people with brown skin.”

Justices of the Supreme Court, Whitehead cautioned, are “living in an ivory tower.”

Supreme Court members are “chauffeured about in limousines and they don't know what we have to go through out here, especially if we're people of color.”

On Fourth Amendment rights, Whitehead noted that “Justice [Antonin] Scalia, whom I've been critical of in the past, and the women on the Supreme Court have been great in their dissents.”

Four instance, he said, those four justices objected “to the forced taking of DNA from people now. If you're arrested for anything, they can go into your body and take your DNA.”

The DNA decision is part of what Whitehead calls “the new movement toward bodily probing.”

He explained that, “in large cities across the country, police are stopping men on the street and doing rectum searches, sometimes causing bleeding. This is without a warrant, without arresting them.”

He gave the example of how recently in Texas, “two women were pulled over for throwing a cigarette out of a car. The policeman accused them of smoking marijuana” but when he found no cannabis in the car, “he called for back up, [who] did vaginal and rectum searches on the women without changing their gloves.”

Those Texas police officers, he said, have “been sued for a million and a half – and they should have been sued.”

Offering advice to citizens, Whitehead warned, “I just say, be alert. Let's read the Bill of Rights again. Most people don't even know what's in the Bill of Rights. It's 462 words but most people have never read it. Can you believe that? 462 words, you can read it in less than five minutes.”

Because “we're not teaching [the Constitution] in school anymore, people don't know” what it says.

“If you're stopped on the street and they want to do a really weird search on you,” Whitehead advised, “assert your Fourth Amendment rights.” The police “have to have probable cause.” Before they begin a search, he said, citizens should ask, “Am I doing something illegal, officer?”

With regard to A Government of Wolves, which was released at just about the same time that Edward Snowden's leaks about the National Security Agency (NSA) began making worldwide headlines, Whitehead said the book includes an examination of the NSA's activities.

"I started studying them in the 1980s, when some evidence came up that they were actually already doing domestic snooping, which they're not supposed to do."

The book explores "what I call the electronic concentration camp, because we're all watched now. The FBI has admitted to downloading our phone calls. This is American citizens" they are spying on "without probable cause" and without "following the Fourth Amendment."

Whitehead said he wanted to respond to the frequent question, "If I'm not doing anything wrong, then why should I worry?"

People should worry, he said, "for a couple reasons."

The first is that "in America we believe in the rule of the law. We believe in the Fourth Amendment, our Constitution, the right to free speech."

He pointed out how the Rutherford Institute had "helped servicemen who have been arrested for doing Facebook posts critical of the government."

Those men, he said, "are asserting their rights, by the way, and that's good to see."

A second reason people should worry, Whitehead continued, is "the militarization of the police is a very scary thing. Eighty thousand SWAT team raids occur across the United States annually, up 30,000 from ten years ago. These are black-armed troopers going through doors of people's homes for something like an ounce of marijuana."

As a response to those who say "we have nothing to hide," he mentioned how he cites attorney Harvey Silverglate's book, Three Felonies a Day: How the Feds Target the Innocent, in his own book.

"That's a great book," he said, in part because it demonstrates "the over-criminalization of America."

Citing examples from the Rutherford Institute's portfolio, Whitehead explained that he and his colleagues have "defended people who want to sell goat – no, excuse me, not sell, but give -- goat cheese away to their friends. These are farmers" who have been prosecuted for trading in foods unapproved by the government.

In another case, he said, "we defended a lady down in Arizona who, on Saturday mornings, would go to the grocery stores and get all their unused food. She had one little bookcase she'd set on her driveway for her neighbors" where they could select food items for themselves.

Some of those people, he said, "didn't have jobs" and had trouble making ends meet, yet "the police came out and tried to stop that. We threatened to sue and the police backed off but, believe it or not, they actually did surveillance on [that woman] for a couple weeks, watching her and filming her, with her little bookcase at the end of the driveway for poor people."

That's the kind of thing, Whitehead said scornfully, that "we're seeing all over the country."

(A shorter version of this interview previously appeared on Examiner.com. Video of John Whitehead's remarks following the interview are available to see on YouTube.)

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Author Interview: Richard Epstein on his new book, ‘Design for Liberty’

Already well-known for such works as Principles For A Free Society: Reconciling Individual Liberty With The Common Good, How Progressives Rewrote the Constitution, and a widely used legal textbook on torts, New York University law professor Richard A. Epstein has just published Design for Liberty: Private Property, Public Administration, and the Rule of Law (Harvard University Press, 2011).

At a recent Cato Institute event, Professor Epstein spoke to me about his new book and his next project, a book about classical liberalism and constitutional law.

Design for Liberty, he said, differs from his previous books in that “it’s a little bit more philosophical. It spends much more time talking directly about public administration, which I have not talked about much in previous books.”

Moreover, Epstein added, it reflects his “newfound interest in public administrative law, which is usually missing from the earlier works, and of course, it has material which I could never have covered earlier because things like the Dodd-Frank [banking] statute and the current health-care bill are creatures of the last year or so and therefore I never spoke about them before.”

First and second order rules
Digging further beneath the surface, Epstein pointed out that his new book contains “a fairly detailed explanation of first and second order rules, a sort of technical subject,” which involves the question of “when is it that you have to have to resort to reasonableness rules?”

Richard Epstein

That happens, he said, when “it turns out that hard-line rules don’t work and what you have to do in order to make the rule of law work is to understand that the mere fact that there’s a reasonableness in some legal system doesn’t disqualify from the rule of the law.”

“On the other hand,” he argued, “you can’t let reasonableness determinations overwhelm the whole system, so I try to develop protocols to how it is that you separate those things.”

Epstein’s next project will be what he describes as “a very long book” with the working title “The Classical Liberal Constitution.”

That book, he said, is “about 90 percent done.”

Progressive vs. classical liberal
In it, Epstein “takes the fundamental insights that I’ve developed over the years and basically gives a comprehensive analysis of every major constitutional area with a hell of a lot of compression, but it starts with basic theories of constitutional interpretation. It talks about the conflict between the progressive and the classical liberal visions. Those,” he said, “are things I’ve talked about before.”

Epstein’s forthcoming book “goes through systematically the judicial, the executive, and legislative branches, and then does all the various threads of individual rights, each getting a chapter.”

Unlike Design for Liberty, “which is slim,” The Classical Liberal Constitution “will be fat,” he said, with a likely publication date in late 2012 or early 2013.

“It’s been a book that’s been in the making for many years now,” Epstein explained. “It’s an effort to give a comprehensive way in which, if you take the positions that I do, various cases and various issues have to come out.”

The Classical Liberal Constitution will have “some stuff on takings, but that’s not the main focus on it. It has things on freedom of religion and executive power and foreign affairs and so forth.”

Epstein concedes that his “knowledge base is not uniform across all these areas but what makes it possible to do this project is that the Supreme Court doctrine generally tends to be comprised in a relatively few key cases.”

Consequently, “if you have a strong theory, and you pick the right cases to read, you can write the kind of book that I’m talking about.”

Eminent domain
Epstein also spoke with me about an issue in the news – eminent domain reform.

Across the country over the past few years, state legislatures have been considering and passing laws in reaction to the Supreme Court’s decision in Kelo v. City of New London (2005), which stated that governments could use eminent domain to take property from one private owner and give it to another private owner, if the transfer of property results in a “public purpose” such as more jobs or more tax revenues.

In a scathing dissent in that case, Justice Clarence Thomas memorably wrote:

“Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.”

Fourteen years earlier, there had been a striking moment in then-Judge Thomas’s confirmation hearings when then-Senator Joseph Biden held up a book called Takings: Private Property and the Power of Eminent Domain, which Epstein wrote, and asked Thomas, essentially, if he believed what was in it.

That dramatic moment thrust legal scholar Richard Epstein into the public consciousness as the pre-eminent legal advocate for protecting private property against the intrusions of government. That is why asked him about the legal environment in the post-Kelo years and the affect that might have on future legislative attempts to protect against eminent domain abuse.

“No one is satisfied,” he said, with how the reactions to Kelo have played out over the past six years.

“This is the basic breakdown,” Epstein explained. “There are a few states which have fairly severe changes, some of them judicially, some otherwise. Michigan and Ohio, for example, are two.”

In addition, “many states have cosmetic changes, which require administrators to think more deeply before they do terrible things,” he pointed out, “and some states have relatively nominal requirements.”

Among these various regimes, he explained further, “the real difference turns out not to be in the law, it turns out to be in the practice.”

The reason is, he said, is that “once the Kelo situation came down, it raised the political cost to anybody who now wants to engage in taking of private property, particularly if it turns out to be a residential home.”

Epstein recalled a 1984 Supreme Court decision, Hawaii Housing Authority v. Midkiff, with a majority opinion written by Justice Sandra Day O’Connor, who also wrote the principal dissent in Kelo.

Midkiff, Epstein explained, “was hugely capacious, but it didn’t raise any hackles, because what was being condemned was a non-possessory interest.” It involved a “landlord’s interest in property” rented to tenants “and people, frankly, didn’t care [because] ‘these guys are landlords; they’re interested in money; we’ll give them a different stream of money.’”

Unlike Midkiff, he noted, “Kelo threw people off their property. And it threw them off their property for no reason at all.”

A person doesn’t “have to be a genius,” Professor Epstein said, “to figure out that when somebody’s thrown out of their house, which is ripped down by a pitchfork, you’d better have a very powerful justification for doing that.”

In Kelo, the justification was “real estate development, which is a sort of a bad end anyhow, but worse than that,” he continued, “there was no real estate development that required the use of that land.”

Consequently, Kelo “was an exercise in a dubious end and a crazy set of means. The two of those things together turned out to be really explosive and so now, both on the ends chosen and the means used to achieve it, there’s more scrutiny, which takes place as sort of an automatic administrative matter.”

Whether this sort of political scrutiny of local administrators is a sufficient brake on eminent domain abuse and a substitute for statutory or constitutional guarantees is a question that legislators will continue to ask.

(This article is adapted from two previous pieces that appeared on Examiner.com.)

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Books and Authors at CPAC 2010

Last weekend I covered the annual Conservative Political Action Conference (CPAC) in Washington, D.C., for The Metro Herald and for my two blogs, Rick Sincere News and Thoughts and the one you are reading.

Over the two days I was there, I had several opportunities to speak with authors who were selling and inscribing their books for the 10,000 or so attendees from around the United States.

I asked each author to give me an "elevator speech": introduce himself (they all turned out to be male, but that was not by design), describe the book, and explain why a viewer or listener will want to buy the book.

Among the authors I recorded were the chairman of the Cato Institute, Robert Levy; the president of Americans for Tax Reform, Grover Norquist; former White House speech writer Matt Latimer; and 14-year-old wunderkind Jonathan Krohn. You'll see the others in the list below, in alphabetical order.


John Fund, on the revised and updated edition of his book, Stealing Elections: How Voter Fraud Threatens Our Democracy:

Colin Hanna, president of Let Freedom Ring, on his book Grandma's Not Shovel-Ready!, an illustrated account of the Tea Party 9/12 March on Washington in September 2009:

Jonathan Krohn, the loquacious teenaged author of Defining Conservatism: The Principles That Will Bring Our Country Back:

Former presidential speech writer Matt Latimer has written a memoir about his time in the George W. Bush administration called Speech-Less: Tales of a White House Survivor:

Bob Levy is co-author, with Chip Mellor, of The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom:

Political activist Grover Norquist has written a book about the "Leave Us Alone Coalition" entitled, naturally, Leave Us Alone: Getting the Government's Hands Off Our Money, Our Guns, Our Lives:

Finally, Heritage Foundation constitutional scholar Matthew Spalding is the author of We Still Hold These Truths: Rediscovering Our Principles, Reclaiming Our Future:

'Shattered Mirrors,' by Monroe Price

This book review first appeared in The Washington Times on Monday, September 25, 1989.

Can our civil rights survive AIDS?

SHATTERED MIRRORS: OUR SEARCH FOR IDENTITY AND COMMUNITY IN THE AIDS ERA
By Monroe Price
Harvard University Press
$19.95, l60 pages
REVIEWED BY RICHARD SINCERE

In “Shattered Mirrors: Our Search for Identity and Community in the AIDS Era,” Monroe Price, dean of the law school at Yeshiva University, takes an interdisciplinary approach to explore values and behavior during the AIDS years.

Though the topic is specifically AIDS, this slim volume actually contains a wide-ranging reflection upon the sources of contemporary American culture. It also focuses on the contradictory forces that influence our society and the paradoxes that ensue.

Mr. Price argues that AIDS has had an irreversible, if sometimes unapparent, impact upon our culture. To some this might seem to be an irrefutable assertion. Indeed, since millions of people may be carrying the AIDS virus (HIV) and many thousands of those are likely to become ill and die from the disease, the reverberations from AIDS are being felt widely and deeply However, Mr. Price’s argument rests upon an assumption that AIDS, either as an illness or as a social phenomenon, has been much more pervasive than is actually the case.

Because of this faulty assumption, one of the two main themes explored in” Shattered Mirrors” — whether the First Amendment can survive the health crisis — seems misguided. The other major theme, which, appropriately for a lawyer, focuses on the Constitution’s guarantees of equal protection (primarily under the 14th Amendment), travels on much firmer ground.

Mr. Price asserts that “the AIDS crisis has jolted our confidence” in the concept of the marketplace of ideas, which ‘gives the nod to the winner in ideology in cultural styles, and in advocacy of various modes of consumption” (that is, in political speech, artistic and literary speech, and commercial speech). Insofar as this marketplace of ideas is “unfettered, it has produced cultural ideas and habits that are a risk to the public’s health.”

Because the government has seen fit to offer advice and counsel on personal behavior during the AIDS crisis, and may in the future, if it has not already done so, join forces with organized religious groups in an effort to influence cultural norms, Mr. Price believes that First Amendment freedoms of speech and of the press are threatened.

This assertion deserves much scrutiny, Certainly, we already have seen some self-censorship in the media: James Bond has fewer ladies to love, condoms are used to comic effect in movies and on television, rock musicians sing about delaying sexual gratification. There has been, fortunately, no attempt by the state to coerce such censorship. It has been a marketing decision. If Hollywood believes that sex doesn’t sell as well as it used to, let it act on that belief. Hollywood could, after all, be entirely mistaken and too cautious.

The government’s entry into the AIDS debate, and into an educational role (aimed both at children and adults), is not significantly different from the government’s role in public discussions or education on other issues.

To support his assertions that AIDS poses a threat to traditional First Amendment values and protections, Mr. Price invokes an “AIDS-as-war” simile that simply does not wash. AIDS is not comparable to the Black Death, to the influenza epidemic of 1918, or to belligerent attacks by a foreign power. The disease is quite difficult to transmit, far less contagious than influenza or the bubonic plague.

Indeed, the numbers of people affected —at least in the United States, which is the sole focus of this study — are far narrower than such comparisons suppose. There has not been, and if Michael Fumento is correct, there will not be, the long-anticipated breakout of the disease into the larger population beyond the two groups that have been primarily affected, homosexual men and intravenous drug users.

Because of this, however, Mr. Price has a much stronger argument when he says that the AIDS crisis poses a threat to the Constitution’s equal-protection guarantees. Two groups of people, long marginalized by society turn out to be those most affected by a deadly disease. There are attempts by other citizens — including national leaders — to play upon archaic prejudices in order to isolate these groups even more.

Featuring Congressional Record screeds by Rep. William Dannemeyer of California and Sen. Jesse Helms of North Carolina, this movement takes special aim at homosexual men, mostly because — unlike intravenous drug users, who tend to come from the underclass and the politically irrelevant — the homosexual community is large, organized and affluent. To the New Right, the homosexual community and its allies pose a threat to hallowed values. Add to this the hysteria whipped up by political cult leader Lyndon LaRouche, and we have a recipe for a civil-liberties disaster.

These trends explain why, as Mr. Price argues, “one of the greatest dangers of AIDS to the national consciousness is the threat to the principle, so arduously achieved, that baseless discrimination should be officially condemned and that pnvate biases must not have public expression.”

In a passage that has relevance far beyond the realm of public-health concerns, Mr Price notes that “the constitutional notion of equal protection is complex, though the term is often invoked. We do not live in a system in which some constitutional talisman tells us the ‘right’ method of distributing wealth or health.

“Ours is, for better or for worse, s society that presumes, indeed thrives on, inequities that arise not out of the denial of opportunity itself but out of the differences in the way opportunity is seized. We know that the Constitution does not mean that every person will fare equally well, Yet, when we evaluate a course of government action — at least according to Constitutional traditions — we must ask whether a higher level of scrutiny ought to be exercised because of the very nature of the risk groups affected by the AIDS crisis.”

Citing Justice Harlan Stone, Mr. Price asserts that just as racial minorities can be identified if they are targets of discrimination. “those at risk of obtaining AIDS are subject to the kind of ‘prejudice against discrete and insular minorities’ that tends to affect the operation of political processes in a manner contrary to our basic values.” Mr. Price’s warning from all this: “We should be particularly suspicious when government approach disadvantages a group which, for longstanding reasons, those in control of the legislative process may seek to injure.”

As might be expected, Mr. Price praises the recommendation from the Watkins Commission — the President’s Commission on the Human Immunodeficiency Syndrome — that Congress should forbid discrimination against those who have AIDS or who are perceived to carry the AIDS virus. President Bush has endorsed this approach. It has become clear in recent years that AIDS-phobia has been used as a thin veil to justify anti-homosexual discrimination in areas where such discrimination is patently unjustified. (Indeed, one must wonder if it ever is justified.)

While these legal and constitutional issues make up the core of Monroe Price’s book, the author has collected many readable anecdotes, microportraits of our culture on the cusp of the l990s. Although some of his arguments fall short of expectations, Mr. Price raises a number of questions that deserve further exploration. In fact, one could read this book not as a definitive description of “identity and community in the AIDS era,” but as a memorandum of suggestions for future research.

Richard Sincere is a Washington-based issues analyst and writer.

'The War Powers Resolution: Its Implementation in Theory and Practice'

This book review appeared initially in the New York Tribune on Monday, September 3, 1983.

BOOK / RICHARD E. SINCERE JR.
The War Powers Resolution: a siege on presidential power
 
The War Powers Resolution: Its Implementation in Theory and Practice by Robert F. Turner, Philadelphia: Foreign Policy Research Institute, 1983, 147 pages, $4.95.

Clement J. Zablocki, chairman of the House Foreign Affairs Committee, told The Milwaukee Journal on July 3: “The Wars Powers Resolution is uniquely crafted in that it accommodates to the reality of our modern, nuclear world. . . However, the distinctive virtue of the resolution is that it reserves to the Congress its constitutionally mandated responsibility of ultimately deciding the full legality of a presidential action. “In short,” said Zablocki, author of the 1973 law, “the War Powers Resolution is too fundamental in both its constitutional anchorage and its practical benefit to be dismantled” by the recent Supreme Court ruling that the so-called legislative veto is unconstitutional.


Inaccurate optimism
Zablocki’s assertions are wrong, according to attorney Robert F. Turner, formerly a legislative assistant to a member of the Senate Foreign Relations Committee.  Turner argues in “The War Powers Resolution: Its Implementation in Theory and Practice” that the law “is — in essence — unconstitutional, ineffective and unwise.”

Experience of the past decade demonstrates that the War Powers Resolution is not only ineffective, it is probably harmful. “Rather than fostering an atmosphere of cooperation partnership in decisions to commit U.S. forces to hostile situations, the War Powers Resolution has had the opposite effect: it pits the two branches against each other on essentially procedural grounds at the precise time that national unity is needed to deal with a potential crisis.”

The War Powers Resolution was doomed from its beginning. It was passed by a Congress that refused to acknowledge the congressional role in the conduct of the Vietnam War. Pretending that the near- unanimous vote in 1964 for the Tonkin Gulf Resolution (which granted sweeping discretionary powers to the president for prosecuting the war) never occurred, Congress gave the false impression that its constitutional responsibilities had been usurped by the president. So the law’s purpose was grounded in a historical fiction.

Nixon’s veto
Furthermore, the law’s effectiveness was immediately cast into doubt because it had to be passed over President Nixon’s veto. Sen. Jacob Javits, who co-sponsored the resolution, had hoped that Congress would work out a “methodology’’ for join presidential-congressional action in committing American troops abroad and that the president would then sign it — essentially making a compact between the president and Congress. That hope was not realized when the resolution was, for good reason, vetoed.

The War Powers Resolution requires, among other things, that 60 days after American forces are introduced into “situations where imminent involvement in hostilities is clearly indicated by the circumstances,” the president must terminate American involvement unless Congress explicity acts to continue it. Thus, vital American military aid to a nation under siege could legally be ended simply because the Congress cannot make up its mind! More important, an enemy aware of the president’s time limits could easily delay an offensive or refuse to negotiate peace terms until the 60 days of American military presence had ended.

Turner shows that the War Powers Resolution is unconstitutional for several independent reasons, including those cited by the Supreme Court in its recent Chadha decision. Among the others, Turner says, are the resolution’s provisions limiting the power of the Commander-in-Chief to “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces” [Section 2 (c)]. ‘Turner argues: “Any attempt to give legal effect to this provision would be patently unconstitutional.”

Critical omissions
The resolution fails to make the crucial distinction between the Congress’s constitutional power to declare war and the president’s powers to make war. Since after 60 days Congress must affirmatively act to authorize use of U.S. armed forces, the resolution deprives the president of "a fundamental expressed constitutional power,” something “incompatible with our system of separation of powers.”

Turner’s work is a valuable lesson in history and government. It will increase in value as President Reagan and Congress continue to dispute the presence of U.S. forces abroad, particularly in Central America, where fears of “another Vietnam” obscure the realities of the situation.

Congress and the public should take heed of Turner’s analysis, as Sen. John Tower already has, calling the War Powers Resolution “probably the most potentially damaging of the 1970s legislation” that altered the relationship between Congress and president. Tower most surely agrees with Robert Turner’s concluding recommendation:

“Now that its failure has been demonstrated and the acrimony resulting from Vietnam has receded, Congress should take a valuable first step in the direction of improved legislative-executive cooperation in this vital area — and in the process reaffirm its commitment to constitutional government — by repealing the War Powers Resolution.”

Richard E. Sincere, Jr., serves on the board of directors of the American Civil Defense Association and on the staff of the Ethics and Public Policy Center.