10/16/2012 01:42 pm ET Updated Dec 16, 2012

Republican Peace?

Promoting democracy has become justification for military intervention. In a previous article, I wrote about the democratic peace theory and the questionable empirical evidence cited to support it. In this article I focus on how the framers codified the theory in the U.S. Constitution and how those checks on the use of force have been subverted over time.

The theory's commonly stated thesis is that democracies don't war against each other and, therefore, the use of force to spread democracy is justified. The argument explains the thesis by saying that democracies share common values, typically including things like freedom of speech, freedom of assembly, freedom of worship, equality under the law, access to information (freedom of the press and government transparency), and accountability through election.

The notion that republican democracies could form a pacific union was well known to the framers of the Constitution. Rather than the abbreviated version, there is a well developed theory about why the spread of republican democracy would lead to peace, and the theory is specific about how republican governments should behave and be organized. It was the talk of Enlightenment thinkers in European salons before it was articulated in a book by Immanuel Kant (1784) and later in the more recognized essay (1795), "Perpetual Peace." The framers put theory into practice in the new Constitution (1787).

Perpetual Peace: "The Civil Constitution of Every State Should Be Republican." Kant asserted that democracy was necessarily a despotism with the majority exerting a tyranny over minorities. In contrast, republicanism dissipated power and demanded a separation of power between those legislators who would decide the direction of the country and those administrators who would execute those decisions. Enlightenment thinkers believed that the executive was more prone to war than the people who bear the burdens of war. Therefore, power to declare war should be in the people's branch of government -- the legislature. French Enlightenment thinker Montesquieu added the need for a third branch, an independent judiciary, to implement the necessary checks and balances.

The word "democracy" does not appear in the Constitution. It does, however, guarantee every citizen a "republican form of government" and it stipulates co-equal legislative, executive, and judicial branches of government. It places the decision to war clearly with the legislature and places command in war with the executive.

Now, presidents claim the authority to initiate the use of force under their authority as commander in chief. Congress acquiesces and the courts refuse to adjudicate. Truman and Clinton provide stark examples. Truman took the U.S. into the Korean War without a congressional declaration of war or authorization to use force. And Clinton's use of force in Kosovo marked the first time in American history that a president waged war after Congress considered but failed to authorize the use of force. Other presidents are notorious for receiving open-ended authorizations from Congress for the use of force based on contrived incidents.

Perpetual Peace: "No State Shall by Force Interfere With the Constitution or Government of Another State." Kant understood that republics would find reasons for war. But he advanced the principle of nonintervention requiring the troubled state to resolve its own problems. War exhaustion would bring political leaders to the negotiating table to find a mutually agreeable solution that no foreign power could impose.

For many of the Constitution's framers, setting an enviable example of peace, liberty, and prosperity was the preferred way to spread democracy. While secretary of state in the Monroe administration, John Quincy Adams (1821) echoed the sentiment saying "Americans should not go abroad to slay dragons they do not understand in the name of spreading democracy." Instead we should provide "moral support rather than armed intervention in independence movements."

Now, intervention is common. In addition to the constitutional checks on the use of force, the possibility of direct confrontation with the Soviet Union provided a powerful extra-constitutional check. Since the end of the Cold War, intervention has been on the rise, often in the name of humanitarian assistance and the spread of democracy.

Perpetual Peace: "No State Shall, during War, Permit Such Acts of Hostility Which Would Make Mutual Confidence in the Subsequent Peace Impossible: Such Are the Employment of Assassins, Poisoners, Breach of Capitulation, and Incitement to Treason in the Opposing State." Kant's position aligns closely with the Just War tradition and with the international law that follows.

During the Cold War, covert "incitement to treason" became a staple of U.S. statecraft encouraging coups and insurgencies in the third world. In a more recent break with tradition and international law, torture is now tolerated, and many today view targeted killing as assassination.

Perpetual Peace: "Standing Armies Shall in Time Be Totally Abolished." Kant argues against standing armies because they tend to arms races, offensive war, and preventive war. Kant distinguishes preventive and offensive wars by standing armies from defensive wars as "the periodic and voluntary military exercise of citizens who thereby secure themselves and their country against foreign aggression."

The Constitution grants Congress, not the president, the authority "To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years." The authority to "Provide and maintain a navy" does not include a limit on appropriations. To ensure that the executive would not have a standing army, the preponderance of military force was in the hands of state governors. "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The federal army (and navy) would be capable of immediate defense and a cadre to raise the state militias to professional standards when needed. The president would have to persuade Congress, the people's branch, to raise an army for war and persuade the governors to provide their militias. Stand it up, use it, stand it down.

The War of 1812 provided an early test of these divided powers. Congress has the constitutional authority to "call forth the Militia to execute the Laws of the Union, suppress Insurrections and repel invasions." The chicken hawk Congress provided a declaration of war that the president did not request. President Madison ordered Massachusetts and Connecticut to deploy their militias. Both governors refused because "repel invasions" meant defensive war and the War of 1812 was an offensive war initiated against the British in Canada. Washington, Madison, Monroe, and Jackson all waited for Congress to authorize the use of offensive force.

Using commander-in-chief authorities, President James Polk ordered General Zachary Taylor into disputed territory between Mexico and the Republic of Texas, thus precipitating war, and then informed Congress of a war in progress. Representative Abraham Lincoln, Whig from Illinois, helped lead the congressional effort to censure the president. Critics claimed that existence of a standing army enabled the president to initiate an offensive war that ultimately led to seizing over one half of Mexico's territory.

Lincoln's blockade of Southern ports was challenged and adjudicated by the Supreme Court in the Prize Cases (1863). The Supreme Court determined that the president, as commander in chief, "has no power to initiate or declare war either against a foreign nation or a domestic state," but if invaded by a foreign nation or domestic state, the president has not only authority but is "bound to resist force by force ... without waiting for any special legislative authority." The president always has the authority to use defensive force to repel invasions.

Difficulties up to and including the Spanish-American War of 1898 led to major reforms in 1903 and 1916 that transformed the states' irregular militias into the National Guard with units organized and equipped like the federal army. Calling up the National Guard was once accompanied by a great deal of hand wringing and forethought. Lyndon Johnson consciously and explicitly did not call up the Guard because the act would weaken public support for the war. In the post-Cold War era, calling up the reserves has become commonplace. What was once a strategic reserve for once-in-a-generation mobilization and survival is now an operational reserve used regularly for discretionary war. The transition was not accompanied by legislative attention. Another check weakened.

The practice of conscription was a further check on the government's use of force. Congress was granted the constitutional authority to raise an army, and that included volunteerism and conscription (e.g., 1792, 1863, 1917, 1940). Government officials would have to maintain a popular consensus to war because conscription, when fairly implemented, draws a representative sample of the young male population. The all-volunteer force (1973), by definition self-selected, is not representative of the population at large. The aristocratic classes and the general population need not participate and, thus, are less likely to oppose the government's use of force. One commentator asserted that the all-volunteer force removed "the greatest inhibition on a President's decision to wage war." Another check weakened.

Historians chronicled President Roosevelt's assumption of the position of commander in chief as the Second World War loomed. The language of the time was interesting. Under extreme conditions, the president assumed the position of commander in chief of the armed forces, built a consensus to commitment, and waited for the right moment to ask Congress to declare war, raise an army, and grant the requisite powers to the president. But the Cold War had a standing army, and each sitting president was a standing commander in chief. The Cold War ended, but the president did not return the reins of power to Congress, and Congress did not take them back. The president is now accustomed to having a standing army. Another check weakened.

All of these checks, the things that put the democratic peace theory into practice, have been subverted. Still, the democratic peace theory is used to justify war, regime change, and the spread of democracy to assure peace.

As predicted by Kant and the framers, an executive with a standing army is inclined to use it. When presidents exceeded their authority, the courts refused to adjudicate the suits brought. The public seemed disinterested. The extraordinary condition of war is now ordinary. The only viable check on the use of force today appears to be presidential self discipline, and there's a great deal of variability among presidents. Whatever your views on the use of military force, when you vote for a president you vote for the person who will decide when and how to use military force, and when you vote for members of Congress, you vote for the people with the constitutional responsibility to check the president.