President Barack Obama shares at least one thing in common with one of the lesser Founding Fathers. He and Pierce Butler, a South Carolina delegate at the Constitutional Convention, both flip-flopped on their interpretation of the Constitution's war power.
The difference between Obama's flip-flop and Butler's is that Butler's was defensible. In fact, it can now help contemporary Americans understand exactly where the Framers intended the war power to reside.
You see, Butler took the wrong position at the Constitutional Convention itself, during the actual debate on the war power -- before it and other elements of the document were finalized and sent to the states for ratification.
He then flipped to the correct position, before his state ratified the Constitution, when he took it upon himself in the South Carolina legislature to briefly explain how the Constitutional Convention had settled the war-power issue.
Obama, by contrast, unambiguously took the correct constitutional position when he was running for president -- almost 220 years after the Constitution was ratified -- then turned around and took an indefensible position two years into office as commander in chief.
Obama's convenient change in position now justifies his own actions that exceed the constitutional limits on presidential power.
"The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation," Obama told the Boston Globe in a Dec. 20, 2007, interview.
"As commander in chief," Obama continued, "the president does have a duty to protect and defend the United States. In instances of self-defense, the president would be within his constitutional authority to act before advising Congress or seeking its consent."
This is exactly the Framers' understanding of the war power.
As mentioned in this column last week, and clearly explained in Louis Fisher's book "Presidential War Power," the Constitutional Convention debated the war power on Aug. 17, 1787. The draft before the convention gave Congress the power "to make war."
South Carolina's Charles Pinckney wanted to narrow the power to just the Senate. "The Senate would be the best depositary, being more acquainted with foreign affairs, and most capable of proper resolutions," he said, according to James Madison's notes from that day.
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