In the first half of 2020, impeachment, COVID-19, Black Lives Matter, and the upcoming presidential election knocked forever wars even farther off our radar. According to Gallup’s “Most Important Problem” polling, over the past six months, national security, terrorism, and international affairs in general registered less than 0.5% of mentions in the national sample. And yet Sarah Burns’s new book is as relevant as it would have been if public opinion still cared about war as much as it did in the first decade of this century. Although this book, published in 2019, obviously could not include these timely 2020 subjects, it is indirectly relevant to them. When is the reckoning going to come for the dysfunctions of the modern presidency that simultaneously abuses and squanders power across various issues? When will Congress ever again embrace the fullness of its constitutional authority to stop executive branch actions that majorities decry and see to completion a different agenda that members ran on and won?
A recap of just a few facts about the longest-running military actions in US history shows that these questions are not mere handwringing exercises. Political science needs more books on war, from a variety of research approaches, to bring attention to the chasm between separation of powers theory and reality that has little to do with which party is in power.
The United States passed two Authorizations for the Use of Military Force (AUMFs) in 2001 and 2002. Although aimed at Afghanistan and Iraq, respectively, three presidents used these open-ended war authorizations in at least 14 countries. According to the Costs of War project at the Watson Institute for International and Public Affairs at Brown University, 7,000 US service members have died related to these wars, thousands more private contractors were killed, and the United States and its allies have caused at least 335,000 civilian deaths across Afghanistan, Iraq, Syria, Yemen, and Pakistan. Unrelenting war in the region has also created a refugee crisis counted at around 8.4 million, as well as an untold number of wounded civilians and combatants across all these countries, as well as the United States. Costs of War project director Professor Neta Crawford and her research team estimate that the United States has spent or obligated almost $6.5 trillion for the direct costs of these military operations—largely through issuing public debt. Yes, these facts matter for a variety of raging political and policy fires today that require federal dollars and competence.
Burns’s book does not squarely focus on these aspects of “politics” as much as on the crisis in our constitutional polity that has repeatedly undermined successful war policies. The book is grounded in constitutional theories of separation of powers, with an emphasis on John Locke and Baron Montesquieu. Burns aims to explain how executive branch institutional development on war and national security repeatedly “warps” founding theories by skewing to Locke, first intermittently and then eventually in a permanent way, which now permanently distorts constitutional values of deliberation and accountability on war. In effect, the “politics”-related insights of the book concern the bizarre lack of politics surrounding war. Burns shows that, no matter the partisan or electoral landscape of the past seven decades, unilateral decision-making to embark on new military actions is always in fashion at 1600 Pennsylvania Avenue; this is despite whatever positions or promises the presidential candidates may have made while running. Simultaneously, congressional majorities of all stripes are content with sometimes waving flags and other times wagging fingers. No serious effort to repeal or replace the two AUMFs have come to the floors of the US House and Senate.
Burns explains on the book’s first page that delving into constitutional theories of separation of powers is important because the founders wanted a stable constitutional order— not a country that hewed solely to one individual leader’s personality, background, interests, and the like. Executive branch domination on any policy front therefore undermines constitutional ideas of systemic “ballast” through shared power and constitutionally derived differences in the outlook of the branches. Burns dislikes the fact that executive unilateralism depends on individual character traits, but the electoral college was supposed to be an elaborate filtration system that would bring us far more George Washingtons than Donald Trumps. Even a casual reading of the Federalist Papers reveals the authors’ commitment to a virtuous office that sees the nation’s interest in a holistically superior way to the House and Senate. Congress was somehow supposed to maintain robust institutional ambition despite being cleaved into two chambers of independently elected or appointed members. The House and Senate were designed explicitly not to function as a cohesive body on a regular basis, but Congress held its own for a variety of complex reasons until the mid-twentieth century.
Chapters 2–4 elaborate on the philosophical foundation and early debates that led to the creation of this second US Constitution. Chapter 2 delves into the arguments and influence of Montesquieu’s Spirit of the Laws, which advocates structural elements of “moderation” in modern states. Burns explores and eventually contrasts this main idea with that of Lockean executive “prerogative,” which can backfire on state stability when used mindlessly and continually. Chapter 3 explains how, in the wake of the American Revolution, leaders’ “limited knowledge of the separation of powers,” among other blind spots, “led to the creation of a structurally flawed confederacy” under the decentralized Articles of Confederation (p. 49). As Burns sees it, Madison understood Montesquieu and jousted with the more Lockean Hamilton even as both advocated together for more robust national government authority. Chapter 4 brings these points into a more molecular focus on the debates between the Federalists and Antifederalists that often centered on the latter group’s collective fear of unrestrained executive power, especially on war (which seems remarkably prescient when read now). This chapter delves into several Federalist Papers, but for some reason does not dwell on No. 69, in which Hamilton clashed with prominent Antifederalists, including the governor of New York, whom he chides for having more power to direct his state militia than the proposed presidential office, which would have to wait for legislative war authorization.
Chapters 5 and 6 then march through presidential war history from George Washington through William McKinley, with reference to a combination of secondary accounts and original primary sources, to label various presidents as hewing closer to the Locke or Montesquieu side of the power spectrum. This approach matters because “the Lockean system relies more heavily than the Montesquieuan or American system on the virtues of those in power and of the citizens” (p. 94). Chapter 5 also reminds all of us who research and teach on war powers to reread the “Neutrality Proclamation” debates and history to ponder the fact that the same men who participated in writing the Constitution disagreed on the actual nature of presidential powers. Throughout these chapters, when presidents see Congress as an optional partner or hindering nuisance, they are on Team Locke (surprisingly including Jefferson, but less surprisingly including Polk). If presidents welcome and engage constitutional principles through the House and Senate, Burns places them on Team Montesquieu (Madison and McKinley). Of course, Burns also explains why some presidents, such as Washington, Lincoln, and both Roosevelts, deserve much more nuanced treatment—and those parts of the book are worth reading especially closely, because ambivalent (read Montesquieuan) war presidents seem to have weaker legacies.
Chapters 7 and 8 cover the birth of the modern presidency in the two world wars and the Cold War, and then chapters 9–11 explain why the implosion of the USSR did not change either party’s constitutional orientation to national security. Building on the work of other prominent institutional scholars on the separation of powers, Burns critiques the permanent Lockean model embraced by Harry Truman onward. She is especially insightful and original in her searing critique of the current war on terrorism, which lacked cultural literacy, military strategy, and deep, consistent congressional deliberation and oversight. These chapters are also tied together by the extraordinary (and little-known) power of the Office of Legal Counsel (OLC) in the Department of Justice. Presidents from FDR on have relied on this office of naked institutional partisanship that is “a tool for presidents when they hoped for a legal justification to circumvent congressional restraints” (p. 147). The final chapters on the current strategic military abyss forged by George W. Bush, Barack Obama, and Donald Trump bring home the dire and unintended consequences of military blunders forged under this narrow perspective.
Notwithstanding these numerous strengths, throughout the book—even when returning repeatedly to the real-world policy implications of separation-of-powers distortions—Burns neglects one-third of the constitutional ballast: federal courts. Louis Fisher explains in Supreme Court Expansion of Presidential Power: Unconstitutional Leanings (2017) that from the erroneous dicta of the infamous Curtiss-Wright decision through today, all three branches often have misunderstood their own and other branches’ powers. And as my most recent book argues, federal courts are a crucial piece of the constitutional war puzzle, both when they take up cases and when they demur through a variety of justiciability tools. If Congress pepped up, federal courts could do a bit more to bolster the constitutional distribution of war powers and find a way to support the misguided War Powers Resolution of 1973. Until then, Federalist 51 remains a modern-day fairy tale. Thus, one might ask what role Burns thinks the judicial branch has played—and ought to play—in redressing the problem of executive overreach with respect to the United States’ seemingly endless wars.
