A Thought Exercise

Here’s a question for you to ponder:

If there had been a Constitutional amendment that said that any war undertaken by the United States, in which the US was the aggressor, had to be financed with current federal revenues (i.e., by taxes levied today, not by borrowing), would the War in Iraq have been approved — or even considered?

Does your answer suggest to you that a Constitutional amendment like this might be useful in the future?

37 Comments on “A Thought Exercise”

  1. I’d guess you could find fifteen lawyers in any sinkhole that could argue, under any conditions, that the United States was never the aggressor.

  2. You can get a lawyer to argue anything if it helps his or her client’s case. However, given that there was no real evidence that Iraq was at any time planning to mount a military attack on the United States, we can assume for this thought exercise that the War in Iraq was a war of choice, not necessity.

    For the record, I don’t think our War in Afghanistan was a war of choice — the country was home to the group that attacked on American soil.

  3. First, I agree with Oliver– there’s no doubt in my mind that lawyers could have successfully argued that the current Iraq war was an attack against a country that harbored terrorists that were involved with 9/11, and were working on WMD. Hell, the flim-flammed the media, I’m sure the courts aren’t that much harder.

    That said, I’d also worry about how it might tie our hands in a case like the interventions in Bosnia. I mean, we weren’t the aggressors there, but neither were we the attacked. How would that play out?

  4. Wasn’t that fought by NATO? And how would the amendment play out if it were fought with organizations like that?

  5. “There’s no doubt in my mind that lawyers could have successfully argued that the current Iraq war was an attack against a country that harbored terrorists that were involved with 9/11, and were working on WMD.”

    Gaaaaah. And lawyers could have equally argued the opposite. Let’s leave the lawyers out of it and look for clear and unambiguous signs of attack, the sort that even Johnny Cochran couldn’t obfuscate. We knew within days who was directly responsible for 9/11, and it certainly wasn’t Saddam or Iraq (whom it appears nearly certain were not even indirectly responsible).

    As I said, for this thought exercise, we can assume invading Iraq was a war of choice.

  6. Considering that advocates of the war thought we’d be in and out for around $10 billion, I think that the war probably would have made it. It was because of the poor planning before we invaded that we’re having such difficulties now. On top of that, it would give more credence to the idea of starving the government of funding to shut down social programs, an idea that many conservative politicians favor because it’s easier than trying to directly destroy the social safety net programs that they despise so much.

    I think that the idea of raising taxes would cause less political damage to the advocates of the war than the actual war has generated for them, even in losing. To this day people who demand that America act like a moral superpower as well as a military super power are routinely denounced as anti-American, and there are a whole range of pundits who reinforce that idea to anybody who listens to them.

  7. I think that financing a war isn’t a topic that’s very sexy, and it’s not going to get much play, media-wise. Without that, it’s just not going to pass in any sort of reasonable time. Then again, the 27th Amendment took over 200 years to pass…

    I pulled this out of the Constitution, Section 8, regarding Congress.

    To declare War, grant Letters of Marque and Reprisal, and make Rules concerning
    Captures on Land and Water;

    To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

    So, I ask you if an amendment is necessary? Already the Congress alone has the right to declare war and appropriates funding for it. WMD and Al Qaeda weren’t in question and the funding was granted by Congress.

    Let me give you a not-so-hypothetical question. Should the US intervene in Rwanda and the Sudan to prevent the continued genocide of people? We would be the aggressors, but we would be going in to save millions of lives. How would your amendment play out?

  8. Cassie says:

    “So, I ask you if an amendment is necessary?”

    “Necessary” is not on point; I said “useful.” Also, of course, the Amendment would supercede what’s currently in the Constitution: It wouldn’t speak to Congress’ ability to declare war, and it would dictate how to pay for said war only in the cases where the US had not been attacked by an aggressor or had another state declare war first. Even then, I would still imagine congress would have latitude to decide how to levy any required taxes.

    I don’t think “sexy” is necessarily a condition of having an Amendment approved; the most recent approved Amendment was about the salaries of Congresspeople, after all.

    Re: Rwanda: I don’t know how the Amendment would play out — it’s an interesting question. I suppose it would depend on whether there is a formal declaration of way by Congress, wouldn’t it.

    Bear in mind, incidentally, that by me posting this thought exercise, one should not automatically assume I am for amending the Constitution in the manner I mention: Personally speaking I have a tendency to wish to leave the Constitution alone unless absolutely necessary (and it is almost never absolutely necessary). I am interested in whether people see something like this as useful or not.

  9. Useful? No.

    I agree with you regarding amending the Constitution. In reading it this year, it struck me again what an inconvenient government we have and it was made deliberately so.

    As to something being attention getting enough (aka sexy) to the media: recent days have shown us journalists at their worst and ocassionally their best. IF the main stream media took the issue on as a part of their agenda, then it might get the states’ votes. But as a topic by itself, I don’t see the Congress voting away its perogatives in funding mechanisms by proposing such an amendment. It would have to be grassroots effort, such as Prohibition was.

    I have some friends who believe that the OPEC nations’ ability to threaten our lifestyle is reason enough to intervene in the Mideast. I don’t ascribe to that theory myself, but I wonder how such an amendment would play to them.

  10. Hm.

    Here’s my meta-question: Would a Constitutional amendment of the form “Any spending on x must be financed with current federal revenues (i.e. by taxes levied today or by cutting other parts of the budget)” be useful for any x?

    My hunch is the answer is “no”, as x can be spent out of current revenues while everything else can be funded by an IOU mill, assuming the cost of x is a sufficiently small chunk of the revenue base—that is, less than all of it.

    Given that, I don’t think this sort of amendment is useful for enforcing any kind of “no spending on x unless Congress thinks it’s a really good idea and is willing to sacrifice other things for it” norm.

    On an unrelated note, the commenter here doesn’t like <var> elements, and strips them out.

  11. Remember the US was involved in only one war in Iraq, not two — it lasted from 1990 to 2003 with a long ceasefire in the middle. And the US was on the defensive side, since Iraq started it by attacking Kuwait, which then requested military assistance.

  12. Another interesting way to look at this is to ask the same question, but replace “iraq war” with “world war 2”. I highly doubt that it would have been funded either.

  13. Quote
    “but replace “iraq” war with “World War 2″. I highly doubt that it would have been funded either”

    Why? As I recall the attack on Pearl Harbor was the major catalyst for the US involvement in WW2. So how would that make you the aggressor?

  14. A War of Agression is forbidden by the UN Charter as a crime against international peace.

    Is any US President going to stand before Congress and declare that any particular action is an aggressive war? Or allow Congress to argue that it is? It would be tantamount to the admission of a war crime.

  15. Chris:

    “A War of Aggression is forbidden by the UN Charter as a crime against international peace.”

    Well, and of course, look how well the UN has done enforcing this particular portion of its charter. I expect the UN to charge G. Bush with a war crime any day now. From its headquarters in New York.

    Not mocking you, Chris, because you do raise an excellent point. But I think it’s abundantly clear that if a US president decides to make war on another country, the fear of what the UN thinks is not going to be a serious issue for him.

  16. I think Nathan Sharfi has got the answer. You can always rejiggle it so we’re paying for, say, highways with deficit spending and paying for “defense” in real-time. Unless you ban deficit spending entirely, this amendment has no teeth.

  17. It’s not that the US president would care about the UN response, but for the Amendment to have any effect at all someone would have to stand up and accuse the President of planning to undertake an international war crime.

    I suspect that you’re not going to have many politicians willing to do that even if they really hate the president.

  18. Okay, John, without considering legal angles, and given that there’s language in the amendment to prevent the sort of nefarious budget-swapping proposed by Mr. Sharfi, yes, it could be useful. But I believe impractical.

    I’m in favor of anything that would help to keep the United States from being a bully. But I think that it would set in motion a kind of unilateral arms race, where every president, of any party, fearing that he might need an awfully big standing army “someday”, funds the military industrial complex even more feverishly than we do currently. And with the Henny Penny’s of the world vocally damning anyone that even briefly considers a reduction in defense spending as “tying our hands” and “anti-american”, who would blame them?

  19. John, we’ve been ignoring the Constitution with respect to war since after WWII.

    Just look at this bit, and see if it jives with the administrations detention policies:

    To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

    The Executive Branch Bush has completely usurped that power.

  20. Wow there was some bad typing in that post.

    And you answered your own question:

    But I think it’s abundantly clear that if a US president decides to make war on another country, the fear of what the UN thinks is not going to be a serious issue for him.

    Just insert “Congress” for “UN”, or “what the Constitution says” for that whole phrase.

  21. in which the US was the aggressor…would the War in Iraq have been approved — or even considered?

    Given that the invasion of Iraq was framed (rather aggressively, as it turned out) as ‘pre-emptive defense’, I don’t see that such an amendment would have made any difference.

  22. I would say no, it’s not a useful idea. Once entered into a war everything resonably possible should be done to win it quickly. The possible hamstringing of the effort financially doesn’t strike me as wise. Perhaps bonds could be issued as in WWII, but I’d lean against the idea.

    This is all hypothetically speaking, of course, as there’s no way in hell Congress would ever allow such an ammendment. It would pave the way for another ammendment that would prevent Congress from overspending on anything.

  23. Issuign bonds is exactly how the government borrows money, so that would be out in this hypothetical scenario.

    I think if the idea is to restrict our role as aggressors, the easiest way to achieve it is to revamp the war powers act. As it stands today, the executive branch can get us into any conflict without a declaration of war. The problem with that is once we’re engaged in battle it’s impossible to get congress to say no (we have to support the troops, after all).

    Basically, the war powers act is nothing more than an abdication of responsibility by congress, and a usurpation of power by the executive branch.

  24. Oddly enough, the late Senator Paul Simon wrote in some detail on that very suggestion in what I think was his last book. I don’t know that he actually wanted to make it a constitutional amendment, and he specifically wanted to raise taxes, not just “pay for it”, which I think is what you were getting at. His argument was that unless a war is accompanied by a tax increase, we just aren’t going to pay for it, and we aren’t going to go to any great lengths to avoid it, either. I’ll note he did not distinguish between wars of choice (or aggression), if I recall correctly; he felt that any war needed to be accompanied by a tax increase.

    Of course, as Steve Brady implies, the only way to make such a provision work is if it is linked to the disused but exclusive Congressional power to declare war. That is, we would have to essentially scrap the War Powers Act, and go back to having the Executive Branch go hat in hand to the Congress if it wants to invade another country. I don’t think that’s going to happen, much as I might like it.
    As a matter of curiousity, what do you think would happen if a prominent Democratic Senator brought to the floor now a proposal to declare war against Iraq’s former Ba’ath government and its current representatives, the Sunni insurgency? Would there be a debate on it?


  25. Would such an amendment be useful? Yes, and that’s one of the strongest arguments against it because you must also ask: useful for what and for whom? Useful is not the standard for amending the Constitution; needful is. Needful is required for the survival of the Republic. Useful is a political tool to further undermine the nation and place the citizens at each others throats. The Constitution should NEVER be amended for “useful”. In fact, a large number of legal and Constitutional scholars believe that “useful” should not even be sufficient to pass routine regulation. It would be useful to me if there were a Constitutional amendment that said publishers had to pay all authors at least ten cents a word but I don’t think it should become the law of the land.


  26. Not useful because it’s indirect.

    Your goal is to require responsible use of military power, but your proposal merely requires that irresponsible invasions be fiscally sound. There are too many ways to meet or pretend to meet the fiscal requirement – see many of the previous posts and add the oil-state invasion that pays for itself.

    An indirect amendment won’t work. If the goal is to prevent aggressive war, the proposed amendment should prevent aggressive war.

  27. I think John H and Vardibidian are misunderstanding the War Powers act. Presidents already had the ability to launch a war without consulting Congress, as in Korea and Vietnam. The War Powers act was an attempt to limit that ability.

  28. I don’t think that amendment would be enough (I assume your goal is deter needless aggressive wars).

    I have long thought that democracies shouldn’t have drafts or they aren’t really democracies. If the populace isn’t gung ho enough to pick up the guns on their own, then it isn’t really supported. I know this is impractical, etc etc, I still think it’s largely true.

    I think an amendment that required the US to somehow raise money separate and above the rest of the budget would be more to the point. War bonds, a new tax, personal donations, etc.

  29. Quoth Elizabeth:

    I think an amendment that required the US to somehow raise money separate and above the rest of the budget would be more to the point. War bonds, a new tax, personal donations, etc.

    I thought we already had one; it was authorized by the never-yet-repealed 16th Amendment… ;)

  30. Sarcasm aside…

    The 16th amendment was ratified to pay for WWI, and I’m under the impression that the drafters considered putting in a cap at 10%, but decided against that as it would have been absurdly high and didn’t want to give anyone any ideas…or something.

    The trouble with forcing tax hikes is that the tax hikes might either be permanent or get reduced only partway, leading to a, er, “positive” feedback loop in the pork department as the federal government manufactures all sorts of extra things to do in peacetime.

  31. Sorry I’m late – can’t step away for a single day without missing an interesting conversation…

    First: The ammendment implies that aggressive war is OK when the country is wealthy enough to pay for it, and is not OK in any other case. I don’t think we should be deciding to go to war based on what we have in our wallets right now.

    Second: It implies that the variable factor is always going to war. What if, under the ammendment, we decide to go to war using current revenues, and the war takes longer/costs more than we expected? Should we then plunge the economy into depression by sending everyone a large tax bill? Or pull all the troops out in the middle of a war that we decided to fight in the first place? Wouldn’t we simply be telling our enemies that to defeat the United States, one must merely hang on long enough for the money to run out?

    Third: Whatever legal definition we used for “agressive war,” would almost certainly be suspect the very next time it was implied. Each situation is vastly different. Someone mentioned World War II above & Kevin responded that Pearl Harbor was our impetus for joining. Under the ammendment, couldn’t you argue that Pearl Harbor was justification for going to war with Japan, but not with Germany? Isn’t it a fairly similar argument to the Afghanistan/Iraq question of today? Was Germany ever an imminent threat to attack the US? Would the ammendment have applied to Korea? Vietnam? What about humanitarian missions (Rwanda, Sudan, etc.)? What about rescue missions? There are too many variables.

  32. Brian Greenberg wrote:

    “Under the ammendment, couldn’t you argue that Pearl Harbor was justification for going to war with Japan, but not with Germany?”

    Not really, as Germany declared war on the US before the US declared war on Germany. Indeed, if I remember my history correctly, there was some small hope that Germany might not declare war — thereby, the US would not then have to fight a two-front war (there was also some hope of the same on the German side). But I guess Hitler felt obliged to do so.

  33. I’m sympathetic to the intent but, no, I don’t think such an amendment would be useful. As others have pointed out, it’d be too easy to circumvent; in the current conflict, for instance, Saddam was clearly the aggressor, by virtue of possessing non-existent weapons.

    If we’re going to consider impractical ideas, I’d suggest that starting immediately, we stop electing packs of weasels to public office. There are good people in this country, and we could elect them if only we’d stop spurning them when they tell us hard truths.

  34. It’s preferable for amendments to make general, structural changes, given the effort it takes to make them. If you go down this road, why not an amendment like “The Executive, while the Senate deliberates for nominations to the Judiciary, shall make freely available any documents the Senate should deem necessary to make its decision”?

    The narrower an amendment is, the easier it will be to hit upon other, similar travesties, and therefore the less useful it will be to future generations. The many loopholes your narrowness creates (some, I see, mentioned above):

    -Money is fungible. If the war has to be funded with current revenue, the extra borrowing can be directed at domestic spending while making more current revenue available.
    -What a war of aggression actually is. You mention above you want to “leave the lawyers out of it,” and want to see “clear and unambiguous signs of attack,” but when push comes to shove it’s going to be in their hands. If the standards for judgment are clear and unambiguous, it’s going to be the Supreme Court that enshrines them.
    -For that matter, don’t forget we’ve had plenty of wars of aggression when the government didn’t borrow so heavily. (Spanish-American, for example.) If such an amendment existed, the President and gang could simply take this into account beforehand and whip up the country just sufficiently more.

    We generally agree it’s good that the Constitution is enforced so strictly on such matters as freedom of speech, with little chance of political interference. And now, because it’s occurred to you that today’s executive actions are reaching levels of stupidity almost as great as repressing those freedoms, you wonder, why can’t it be that simple here? wouldn’t it be better if we had an amendment and everyone knew it was out of the question?

    It’s a natural desire, but because of the nature of amendments I described above, I don’t think it’s sound. Our amendments should be more reflecting of a general will to tweak our polity at its foundations, not amend a contemporary failing. I think there are some things that deserve to be more in the realm of common sense, and amendments to ensure each of them would enshrine a deep lack of responsibility at most levels of government.

    That said, this is the second time reckless prodigality relating to a non-vital war is causing deep problems here and abroad, the first time being the late 60’s. It is conceivable some amendment on fiscal responsibility could help. But a balanced-budget amendment is horribly reactionary. On the whole I have trouble imagining how to cast such a thing other than as “vast borrowing isn’t allowed unless it’s for good purposes” (of which yours is a variation). Whether policy is good is not for judges to decide, mostly. It’s interesting to think about.

  35. Regarding the Iraq war: Not about the constitution, but I like your blog.

    This one is very grisly, but important. The mainstream press will not touch it. Please pass it on.

    Alternative press publishes the story of a Web site where American soldiers from Iraq exchange photos of mutilated dead Iraqis, in violation of Geneva Convention.

    The guy who shared this with me on chat says the site has been well known for months… but, not to decent people like me who don’t do what they are trading it for. He got it off dailyrotten.com which is a disgusting site.

    The link is on my blog:

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