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Constitutional Limits : Power Shifts in 200-Year Balancing Act

September 17, 1987|DAVID G. SAVAGE | Times Staff Writer

WASHINGTON — When James Madison placed his name on the Constitution exactly 200 years ago today, he thought the Constitutional Convention was making itself crystal clear on one key matter--the relative duties of Congress and the President.

Madison, one of the document's chief drafters, observed years later that he believed the Constitution invested Congress with the authority to make policy and the President with the duty of carrying it out.

Although the document drafted in Philadelphia by the 55 Founding Fathers has survived remarkably well for two centuries, it has not worked out exactly as Madison envisioned. In two most vital areas--foreign affairs and the power to make war--modern practice has turned Madison's formulation on its head. Now, it is the President who makes the policy, and Congress is often left with little more to do than criticize and complain.

North's View on President

The summer's Iran- contra hearings helped to demonstrate how far the locus of power has shifted. Lt. Col. Oliver L. North bluntly declared that the President had an inherent constitutional power to conduct foreign policy as he thought best, even if it meant carrying out secret operations in defiance of the will of Congress.

"This idea wasn't the invention of an obscure Marine colonel," said University of Wisconsin historian Stanley Kutler. "One of the worst cliches of modern constitutional history is the notion that the President was given absolute control over foreign policy . . . . There is nothing in the literature of the Constitution that sustains that proposition."

Yet, if a modern-day President can sometimes exercise almost total power on a de facto basis, the checks and balances built into the Constitution--as well as the nation's overall political system--continue to exert a restraining influence. Sooner or later, even the most assertive occupant of the Oval Office has felt compelled to seek public--in practice, congressional--support for his policies.

Sees Need for Consensus

"We still have a democratic tradition in foreign policy which says: If you want to undertake a major initiative, you need a democratic consensus," UCLA history professor Robert Dallek said. "The President can act, but, for his policy to endure, he has to have the support of Congress and the country."

Unquestionably, delegates to the Constitutional Convention wanted the new national government to have sufficient authority to carry out an effective foreign policy. "They wanted to make sure the government had the necessary power to defend itself," Georgetown University Prof. Walter Berns said.

During the Revolutionary War, the Continental Congress often could not pay its beleaguered troops because it lacked the power to collect taxes from the states. After the war, several states established what amounted to their own foreign policies by setting up special trading relationships with European nations or negotiating treaties with Indian nations.

It was apprehension about such paralysis and division that led the delegates of 1787 to seek a stronger national government.

Not Long on Specifics

They devoted much less time to a careful consideration of who would control the new powers--the Congress or the President, although no scholars today believe that the Founding Fathers meant to give exclusive, unfettered authority in the field of foreign affairs to the President.

On Aug. 17, 1787, for instance, during one of the few recorded debates on the war-making power, the delegates changed the wording of a draft that gave Congress the power to "make war" to a power to "declare war." This slight rephrasing, delegate Edmund Randolph of Virginia said, would allow the President the necessary power "to repel sudden attacks."

In anything other than extreme emergencies, it was assumed, Congress would set the policy, and the President would implement it.

"They conceived of Congress' being the dominant branch," said Charles Lofgren, a history professor at Claremont McKenna College. "In the area of war-making, they assigned the power to Congress in every case short of the President acting in obvious self-defense."

'Shared Responsibility'

"In the broader area of foreign relations, it is a more shared responsibility," Lofgren added. "The problem is that the line between the conduct of foreign policy (which is the President's responsibility) and the making of foreign policy becomes awfully indistinct."

In Article I of the Constitution, Congress was given "all legislative powers." Further, "Congress shall have the power to . . . provide for the common Defence; . . . to regulate Commerce with foreign Nations; . . . to declare War . . . and make rules concerning Captures on Land and Water; . . . to raise and support Armies; . . . to provide and maintain a Navy; . . . to make Rules for the Government and Regulation of the land and naval Forces; (and) to provide for calling forth the militia to execute the Laws of the Union, suppress Insurrections and repel Invasions."

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