So I’ve been doing a lot of thinking about how to adjust the Constitution to de-incentivize the 20th and 21st century American tendency toward global military empire. And I came up with three broad goals:

1) Create institutional incentives that dissuade the President from deploying troops without congressional consent;

2) Create institutional incentives that dissuade Congress from granting that consent;

3) Create institutional incentives that dissuade the average citizen from supporting wars of choice.

Now, that’s the easy part. The hard part is coming up with such institutional incentives, and creating them in such a way as to not make a mockery of the whole thing or give rise to silly unintended consequences. An example of such a debacle would be something like a requirement that no money could be expended from the Treasury in support of U.S. military personnel if Congress had not passed a declaration of war. Absent some institutional disincentive toward declaring war, that policy would simply serve to put us in a permanent “declaration of war,” much like the permanent states of emergency in banana republic dictatorships. War declarations would cease to mean anything.

We need something with teeth, something that would make it painful for the President and/or the legislators to simply shirk the spirit of the amendment while fulfilling the terms of it.

So what would dissuade the President from deploying troops without congressional consent? Let’s do a thought experiment. One possibility would be to take away a different constitutional power of the president in any case where he did deploy troops without consent. For instance, how about the following amendment:

In the case of any offensive combat death of a U.S. soldier at a time when no congressional declaration of war is in effect for the combat being undertaken by the solider, or the combat death of any enemy soldier killed by the offensive actions of the U.S. military at a time when no congressional declaration of war is in effect for the combat being undertaken that led to the enemy death, the president shall not have the power to veto congressional legislation for the following 60 days.  Any bill passed by both the House and Senate in identical form shall become law automatically.

Hey, that’s not half bad!

Still, there are huge problems. First, we’d have a lot of definition to deal with: most importantly, how would we define “combat death,” and who would judge it? That’s not the kind of thing you really want in the Constitution. Same with “offensive.” We couldn’t just say “any death” because that would make for some strange incentives for people interested in affecting domestic politics (i.e. blow up the Marine barracks in Lebanon, strip Reagan of his veto power). But it’s hard to judge a defensive vs. offensive situation, from the outside.

Another objection people might have is, “What if World War III started? Do we really want to hamstring the President like this? To which I say: please. No president is going to not defend the U.S. mainland simply to keep the veto power. In fact, I’m pretty sure that if the U.S. was invaded, I’d want the veto power suspended. It would make the President more obviously the agent of the Congress.

Still, the two biggest weaknesses of this amendment are (1) it wouldn’t really hurt the President unless there was divided government; and (2) it would give Congress an incentive to never declare war and to just hope that someone dies and the President loses the veto power. So it appears that the second tenet from above needs some rethinking; we need to not only dissuade Congress from declaring war willy-nilly, but we also need to ensure that they won’t just never declare war, for the purpose of removing the vote power. A vexing problem.

And one which I will take up in another post later this week.