Yet there is a sense in which there is an essential “small-c” conservative element to civic and classical education, as there must be in all liberal learning (the appropriate term for such education). As Michael Oakeshott once put it, “Every human being is born as an heir to an inheritance to which he can succeed only in a process of learning.” According to Oakeshott’s attractive philosophy of education, the business of the teacher is to release students from servitude to the current dominant feelings and ideas, not by inventing new ones which may be preferable, but by making available to students something approximating their entire inheritance. In the United States, this includes the rich cultural heritage of Western civilization.

For Oakeshott, liberal learning has a strong historical dimension; it is liberal because it liberates us from the stranglehold of the present. It is an education in imagination, an invitation into the art of conversation in which we learn how to recognize the voices of the past—to listen to the conversations in which human beings have forever sought to understand themselves—to distinguish between them, and to acquire the intellectual habits of participating in them.

However, liberal learning, and civic education rightly understood, cannot simply be conservative. It must also be classically liberal, prioritizing interpretation and understanding, and valuing intellectual diversity and freedom of thought as an alternative to conformity and the tyranny of current trends. But how does civic and classical education relate to the intellectual tradition of classical liberalism? The rest of this essay will engage with this question, focusing on the role of the state, which can be a sticking point for some friends of liberty.

Classical Liberalism, Education, and the State

Natural equality is one of the founding ideals of American civilization. It must also be considered as one of the fundamental principles underlying the eclectic yet recognizable tradition that we call classical liberalism (I use this contested term here for the “classical” period of liberalism in the nineteenth century, and its Enlightenment progenitors).

Against Platonic elitism and Aristotelian naturalism, many in the classical liberal tradition have subscribed to at least a version of John Locke’s rejection of innate ideas and accepted the view that the mind comes into the world, more or less, as a tabula rasa (a blank slate). Accordingly, they tend to attribute most significant human differences to education and environment. Adam Smith wrote that “the difference between the most dissimilar characters, between a philosopher and a common street porter, seems to arise not so much from nature as from habit, custom, and education.”

Unsurprisingly, many classical liberals have therefore taken a particular interest in education. John Stuart Mill even explained the writing of his Autobiography in part because it could demonstrate the power of education. Of course, the idea is not to turn everyone into a philosopher, or to suggest that this is even possible, but to give everyone approximate equality of opportunity to maximize their potential. The classical liberal support for popular education stood in sharp contrast to an earlier literature, exemplified by Bernard Mandeville, according to which it would be dangerous to empower the wider populace through education.

It is true that some in the classical liberal tradition have been suspicious of state-sponsored education. Joseph Priestley, for example, in opposition to John Brown’s plan to revive a form of “Spartan” education in eighteenth-century Britain, wanted “to show the inconvenience of establishing, by law, any plan of education whatever.”

Priestley agreed with Brown about the importance of education, and he himself taught what he called “liberal education”—history, literature, and modern languages—at the famous Dissenting academy in Warrington. For Priestley, liberal education had an evident civic function. The study of history, he wrote, helped “form[] the able statesman, and the intelligent and useful citizen.” Agreeing with Bolingbroke that everyone needed to study politics in free countries, Priestley argued that even a daily newspaper would be “unintelligible” to the reader without a thorough knowledge of the history of one’s native country.

But for Priestley, in education, as in any art, success depended on the “opportunity of making the most experiments and trials, and in which there are the greatest number and variety of persons employed in making them.” Homogenization through state involvement could hardly lead to better educational standards. Mill would later agree, writing in On Liberty (1859)that “A general state education is a mere contrivance for moulding people to be exactly like one another.”

For the utilitarian Mill, state education could only exist as an alternative to private education for the sake of diversity and competition. But for Priestley, educational freedom was a matter of right, and the state deciding over the education of someone’s children would be as wrong as the state selecting their spouse. “If there be any natural rights which ought not to be sacrificed to the ends of civil society,” Priestley wrote, “it is even more natural to look for these rights among those which respect a man’s children, than among those which respect himself; because nature has generally made them dearer to him than himself.”

However, some of Priestley’s proto-liberal contemporaries started to make the argument that the government must play a role in education. One of them was Adam Smith, whom Priestley greatly admired. We know of Smith as the great philosopher of freedom. But he was also, and relatedly, a powerful analyst of state capacity.

According to Smith, the state had three primary functions: first, national defense; second, the administration of justice; and third, “the duty of erecting and maintaining certain public works and certain public institutions, which it can never be for the interest of any individual, or small number of individuals, to erect and maintain; because the profit could never repay the expense to any individual or small number of individuals, though it may frequently do much more than repay it to a great society.” Among such public institutions Smith included popular education.

In Smithian economics, the division of labor is central to development. He was, however, clear-eyed about its darker sides. Let’s look at his famous description of the negative effects of the division of labor in commercial society:

In the progress of the division of labour, the employment of the far greater part of those who live by labour, that is, of the great body of the people, comes to be confined to a few very simple operations; frequently to one or two. But the understandings of the greater part of men are necessarily formed by their ordinary employments. The man whose whole life is spent in performing a few simple operations, of which the effects too are, perhaps, always the same, or very nearly the same, has no occasion to exert his understanding, or to exercise his invention in finding out expedients for removing difficulties which never occur. He naturally loses, therefore, the habit of such exertion, and generally becomes as stupid and ignorant as is possible for a human creature to become. The torpor of his mind renders him, not only incapable of relishing or bearing a part in any rational conversation, but of conceiving any generous, noble, or tender sentiment, and consequently of forming any just judgment concerning many even of the ordinary duties of private life. Of the great and extensive interests of his country, he is altogether incapable of judging; and unless very particular pains have been taken to render him otherwise, he is equally incapable of defending his country in war. The uniformity of his stationary life naturally corrupts the courage of his mind, and makes him regard with abhorrence the irregular, uncertain, and adventurous life of a soldier. … But in every improved and civilized society this is the state into which the labouring poor, that is, the great body of the people, must necessarily fall, unless government takes some pains to prevent it. (My emphasis.)

In summary, Smith thought that the lifestyle of the general worker means that he (or she) risks becoming “altogether incapable of judging” “the great and extensive interests of his country,” and “equally incapable of defending his country in war,” “unless government takes some pains to prevent it.”

What can government do? The answer for Smith appears to involve education. Reading, writing, and accounting, he thought, were so essential that “For a very small expense the public can facilitate, can encourage, and can even impose upon the whole body of the people, the necessity of acquiring these most essential parts of education.” By contrast, Mandeville had contended that “Reading, Writing and Arithmetic are very necessary to those whose Business require such Qualifications, but where People’s livelihood has no dependence on these Arts, they are very pernicious to the Poor, who are forced to get their Daily Bread by their Daily Labour.”

Though Smith saw a role for the government in a way that Priestley did not, Smith wanted families to share the payment with the state, to ensure the accountability of teachers. But affordability was key; Smith wrote in the Wealth of Nations that the state “by establishing in every parish or district a little school where children may be taught for a reward so moderate that even a common labourer may afford it; the master being partly, but not wholly, paid by the public; because if he were wholly or principally paid by it, he would soon learn to neglect his business.”

It is fair to assume that Smith did not think that education was important for economic gain alone, but to enable the virtues of citizenship and prevent the negative effects of the division of labor, which he so eloquently described.

Smith was himself a professor at Glasgow University between 1751 and 1764, which he later said he regarded as by far “the most useful,” “happiest” and “most honorable” period of his life. In his correspondence, he wrote that “I have come under no engagement which I look upon as so sacred as those by which I am bound as a member of this University to do every[thing] in my Power to serve the young people who are sent here to study, such especially as are particularly recommended to my care.”

Though he was professor of moral philosophy (initially, logic, but he switched chairs in 1752), his teaching covered jurisprudence, politics, constitutional theory, history, rhetoric and literature, political economy, and natural theology; in short, much of what we would call “Western Civ.” He took his job as a teacher very seriously; Ryan Patrick Hanley has recently argued that we should understand Smith’s professorial career “in terms of concepts that are central to his own moral philosophy”—utility, happiness, and honor—enabling us to connect Smith’s life with the principles he promoted in his books.

Liberalizing Oxbridge

When education, at school and university levels, expanded in the nineteenth century, classical liberals played leading roles.

In Prussia, though the young Wilhelm von Humboldt had expressed opposition to state-led education in The Limits of State Action (1791–92), he was convinced that incapacity for freedom was a direct result of insufficient “intellectual power,” and that it was the duty of the statesman to make people “ripe for increased freedom by every possible means.” The mature Humboldt became one of the great advocates of state-sponsored education in Germany, and he was one of the founders of the University of Berlin, which, since 1949, bears his and his brother Alexander’s name: Humboldt-Universität zu Berlin. Humboldt favored an open and liberal education, steeped in Greek and Latin, that did not restrict life choices.

In England, classical liberals continued to champion popular education in the nineteenth century, notably through Nassau William Senior’s efforts. Jeremy Bentham included an education minister in his “cabinet” in the Constitutional Code. John Ramsay McCulloch could not have been clearer when he said, in the later editions of his Principles of Political Economy, that “An ignorant and under-educated people, though possessed of all the materials and powers necessary for the production of wealth, are uniformly sunk into poverty and barbarism.” The Manchester School liberals Richard Cobden and John Bright, often wrongly viewed as extreme laissez-faire supporters because of their advocacy of free trade, were jealous of Prussia’s superior popular education, and urged the British state to play a bigger role in providing education.

As Gregory Conti has recently pointed out, nineteenth-century liberals in England took a particular interest in reforming the country’s medieval universities, Oxford and Cambridge, which remained confessional long after the state had divorced political rights from membership of the Church of England in a series of reforms in the 1820s. In short, Liberals sought to liberalize and modernize “Oxbridge,” and they were willing to use the legislative power of the state to make the English universities “less exclusive, less sectarian, more secular, more meritocratic.” As Conti puts it, the Liberals, in opposition to the Conservative Party, “urged incessantly that the universities are part of the national patrimony and should not be treated as the property of a political-ecclesiastical party.” In 1871, religious tests were abolished.

Two reformist Victorian Liberals, George Goschen and William Edward Forster, argued that giving families of business from Dissenting backgrounds access to university education would not only increase social harmony; they also connected civic culture and classical learning in a way similar to the modern civics centers. Even though “classical education” had a stricter meaning for them, the parallels are informative. As Jonathan Parry has written, “Manufacturing philistinism … would be diminished by access to classical education that would teach Dissenters, as it traditionally taught landowners, the need to demonstrate civic responsibility in their own public sphere.” Goschen and Forster believed in a common cultural code because of, rather than in spite of, their liberalism.

As long as ample space is left for private initiatives and choice, education that is both state-sponsored and civic thus appears to be central to the classical liberal tradition, broadly construed. In today’s academic environment, many, far from all of whom are insiders, hold out civics centers to be a beacon of hope for the humanities. Positioned at public universities across the country, they have the ability to revive liberal learning, both through core teaching and their own majors, inviting students from different backgrounds to understand their inheritance in the form of Western civilization, and giving them a chance to eavesdrop on the great conversations of the past, as well as to participate in them, and to think freely.

The post Civic Education and Classical Liberalism appeared first on Law & Liberty.

One pocket of private prosecution, however, survives that settlement. “Qui tam” is a Latin shorthand for “one who brings an action for the king as well as for himself.” Under the False Claims Act’s qui tam provisions, a private plaintiff or “relator”—with no injury of her own, no office, and no constitutional oath—may sue in the name of the United States, litigate the government’s claim, and keep up to 30 percent of what she recovers. Last fiscal year, relators filed a record 1,297 such suits. Nearly half of what they recovered came in cases the Justice Department had declined to join.

The Act was born of wartime desperation. In 1863, with contractors selling the Union Army spavined mules and sawdust for gunpowder, Congress reached for an old English legal device and offered a bounty to anyone who would sue a fraudster in the government’s name. The Justice Department did not yet exist; the prosecutor’s office was thin and far from the front. As Senator Jacob Howard of Michigan put it at the time, they were “setting a rogue to catch a rogue.” Howard’s candor is worth remembering. The Act’s authors did not claim the relator was accountable. They claimed she was useful. Whether usefulness is a constitutional pedigree is the question.

The Eleventh Circuit recently gave us half an answer. Two years ago, a federal judge in Florida held that Clarissa Zafirov was an “Officer of the United States.” Zafirov was a physician suing her employer as a relator for Medicare fraud after the government declined to act on her allegations. Since no one had appointed her, the trial court held that her position violated the Appointments Clause of Article II of the Constitution. The court of appeals set that ruling aside. Relators, it held, occupy no “continuing position” established by law and so are not officers at all. It declined to decide whether the qui tam provisions violate the Vesting and Take Care Clauses and sent those questions back down. The ruling came nine weeks after Trump v. Slaughter, where the Supreme Court overruled Humphrey’s Executor and held that even Senate-confirmed commissioners serve at the president’s pleasure.

The Wrong Door

The Appointments Clause, standing alone, was always a weak basis for a constitutional challenge. Officers hold offices; a relator holds a lawsuit. Under Lucia v. SEC, an officer must exercise significant authority and occupy a continuing position, and a relator’s role ends when her case does. On its own terms, the Eleventh Circuit’s panel’s holding is sound. Zafirov did not hold any continuing position, and so the court never reached the first prong.

But the holding also establishes perverse, if unintended, incentives. The more freelance and intermittent the prosecutor, the less the Appointments Clause has to say about her. Unaccountability becomes a safe harbor. That inverts the Clause’s purpose. Appointment is a means, not an end: it ensures that anyone wielding significant federal authority traces her commission to someone the people elected. The panel treated the absence of the means as the absence of the problem. That is why the questions it remanded matter more than the one it decided.

The Vesting Clause

Article II’s Vesting Clause is a different story. Article I gives Congress only the legislative powers “herein granted.” Article III splits the judicial power between one Supreme Court and whatever inferior courts Congress creates. Article II, by contrast, qualifies nothing. Hamilton, writing as “Pacificus” in 1793, treated it as a general grant of the whole executive power, subject only to the Constitution’s express exceptions. In Seila Law, the Supreme Court read it the same way. The executive power belongs to one elected president so that the people know whom to hold responsible.

Law enforcement is the core of that power, and the line between public and private rights marks its edge. A plaintiff who sues over her own concrete injury exercises no executive power. She vindicates a private right. But the undifferentiated public interest in seeing the laws obeyed belongs to the Executive, a rule that traces to the Founding. A relator suffers no injury. She sues “in the name of the Government,” and most of what she wins goes to the Treasury. Her bounty is not a remedy but a fee for her enforcement efforts.

The Framers wrote exactly one authorization for private persons to wield the sovereign’s coercive power: Congress may grant letters of marque and reprisal. That clause sits among the war powers, and it armed ships, not plaintiffs. There is no domestic qui tam clause. The Framers knew how to loose privateers on the nation’s enemies, but they said nothing about loosing them on the nation’s contractors.

Vested executive power, in practice, includes the discretion to decline to prosecute. In 1793, for instance, President Washington directed the federal prosecutor in Philadelphia to drop a riot indictment against two Pennsylvanians he believed were innocent. The relator’s discretion runs counter to this constitutional framework, allowing a private party to press on when the chief executive has decided to walk away from a case.

The Take Care Clause

James Madison defended the separation of powers in Federalist #47 as the guarantee of liberty. Then-Judge Brett Kavanaugh explained in In re Aiken County why prosecutorial discretion is part of that guarantee: the power to decline enforcement shields individuals from oppressive application of the law. Washington’s Whiskey Rebellion pardons were that discretion in action.

The False Claims Act does not abolish executive control, but it does attenuate it significantly. The government receives a relator’s complaint under seal and has sixty days to intervene. If it wishes to intervene after that window has closed, it must show “good cause.” If it intervenes, the relator stays in the case as a party with rights of her own. If it declines, she litigates the government’s claim on her own judgment. Last fiscal year 43 percent of all qui tam dollars awarded were in cases brought by the relator alone. In Polansky, the Supreme Court had to decide whether the government may dismiss its own case over the relator’s objection. That the question needed a Supreme Court opinion tells you how far the Executive’s control has slipped. Slaughter stated the accountability principle fairly plainly: The people must know whom to thank, whom to blame, and whom to fire. Yet no one hires or fires the relator, and only a court can remove her.

The History Objection

The best defense of the qui tam provisions is historical. The First Congress enacted qui tam statutes, and Slaughter itself rests partly on the Decision of 1789, a debate by the very first Congress over the proper limits of the president’s oversight. An argument that invokes Slaughter cannot wave away Founding practice, and it should not try. But neither should it treat that history as a trump card.

And the Founding statutes are different. They imposed no seal, no intervention window, no good-cause bar, and no guaranteed seat for the relator once the government stepped in. Those statutes fell into disuse as the Executive built its own enforcement capacity. Even the mother country thought better of the practice. Britain abolished the common informer in 1951.

Congress can reward informants without deputizing them. The SEC, the IRS, and Medicare all pay whistleblowers who report fraud and then step aside. What Congress cannot do is pursue even a worthy aim by privatizing the presidency. Fraud on the Treasury is a public wrong. Its prosecution belongs to the one officer the people can hold to account.

The post Private Prosecutors appeared first on Law & Liberty.

Passed in 1973 during the Vietnam War after the override of President Richard Nixon’s veto, the War Powers Resolution was enacted when Congress sought to restore a constitutional balance of power after being bypassed by presidential actions in Vietnam and Cambodia. Yet every presidential administration since the War Powers Resolution’s enactment has treated its strict 60-day withdrawal clock and unilateral deployment restrictions as an unconstitutional infringement on executive authority. Whatever its merits or demerits, the War Powers Resolution has proven ineffective.

Is there a path to rethinking and finally establishing what should be the norm in American constitutionalism: Congressional control of the use of force? One route could be originalism. The meaning of the power to declare war has been endlessly studied and debated, with thoughtful scholars on both sides of presidential and congressional control of war powers. We should question whether this issue can ever be resolved by text and legal judgment. But textual ambiguity need not lead to a formless constitutionalism. Our help might come from a different source: political constitutionalism which gives us old but still genuine constitutional ground to recover the power of the representative branches over the use of war powers. Political constitutionalism affirms that parties and leaders operating within representative institutions can chart a program and course for constitutional direction, one that aims at proper ends and purposes of a constitutional people.

The unilateral presidential use of force could work if prudence and thorough deliberation occur within the White House before striking the enemy. But to be a judge in your own cause is difficult for mortals, and as Madison, writing as Helvidius, affirmed, “Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from enacting laws.” Underlying Helvidius’s warnings is the principle that different wielders of power, in this case elected officials in Congress, are more able to employ their wisdom and authority to ensure that proper questions, deliberations, and answers are formulated before the decision to go to war is made. What happens if the right questions aren’t even asked and thus can’t be answered?

We have been left with a set of rather difficult consequences unfolding from the decision to attack Iran. Iran didn’t surrender, as Trump seems to have thought it would. How else to explain an opening decapitation strike on the regime? Our most sophisticated form of missile defense weapons and strategic missile stockpiles have declined to levels that may have led the military leadership to urge President Trump to pause the military campaign in April. Taking stock of our means and ends doesn’t seem to have occurred. Because Trump did not see fit to persuade or even disclose to most European allies that America was going to strike Iran, they remain largely indifferent to the war. Energy prices have increased to the consternation of many Americans who were unaware of the coming war, since the administration did little to justify the war in a public campaign of persuasion. Oil crunches are beginning in different parts of the world.

Good things have also happened: Iran’s defense and industrial sectors have been devastated. Its currency is a deflated mess, and its economy is much diminished. Much of its political leadership is dead. The Iranian Revolutionary Guard Corps now appears to lead the country, but for how long can a medley of fanatical warriors and regime cronies govern? Iran survives, but seems incapable of striking back except through its terror proxies, many of which have been brought to heel by Israel. Iran’s gambit to control the Strait of Hormuz failed, but it has still greatly reduced oil transit through it, although signs suggest oil is now resuming much of its pre-war flow through the Strait. Yet all this underscores that war-making, when it rests in one set of hands, is highly tenuous, even when key objectives such as eliminating Iran’s nuclear capacity are possible.

The Unbalanced War Power

For decades, Congress has largely acquiesced to the executive branch’s unilateral use of force, rarely contesting such decisions with its constitutional authority. At the same time, Congress has appropriated resources for an immense military while remaining largely content with how the president deploys it. Without congressional control, what constraints, if any, limit the president’s decision to go to war? The answer, it seems, is very few.

Harvard Law Professor Jack Goldsmith, who was assistant attorney general in the Office of Legal Counsel (OLC) from 2003 to 2004, and special counsel to the Department of Defense from 2002 to 2003, has argued that the dearth of congressional action in the use of war powers for over half a century has led to a situation where executive branch precedent now dominates constitutional discourse about presidential decisions to use force. Much of that precedent takes the form of OLC opinions, almost all of which favor the president’s decision to commence war in the name of national interests, self-defense, or inherent Article II powers.

Goldsmith’s analysis of these OLC opinions notes that none of them dismiss congressional authority to declare war, but they apply a single test: whether the use of force, based on its anticipated nature, scope, and duration, constitutes a war. Because they tend to conclude that America’s use of force doesn’t rise to the level of a certified war, Congress’s imprimatur isn’t needed.

The difficulty is how quickly almost any deployment of force to kill or damage another country’s forces can lead to war. Even the smallest intervention can potentially metastasize and draw America into an intractable conflict. The 2011 operations in Libya totaled more than $1 billion, featured thousands of air combat missions, and led to the removal of a foreign leader. But it was judged under the nature/scope/duration test to not constitute a war. Can disloyalty to reality serve as a basis for the constitutional use of war powers? Goldsmith summarizes our situation as follows:

Our country has—through presidential aggrandizement accompanied by congressional authorization, delegation, and acquiescence—given one person, the president, a sprawling military and enormous discretion to use it in ways that can easily lead to a massive war. That is our system: One person decides.

He further concludes, “This is not the system the framers had in mind, and it is a dangerous system for all the reasons the framers had in mind.”

Originalism and War Powers

What, then, do we make of the constitutional text that allocates to Congress, under Article I, Section 8, Clause 11, the power “To declare war”? Authorities are divided on this question. My Civitas Institute colleague John Yoo, one of the preeminent scholars of executive power, has argued persuasively in important law review articles and other publications that Congress’s power to declare war was never a causal power to fight a war. Rather, declaring war in its original textual meaning was a formal written declaration of a change in status between America and its enemy or enemies. The Constitutional Convention incorporated a standard of declaring war widely practiced by European states: informing one another and the wider world that they were now at war. In return, they invoked and received protections under the laws of war for enemy combatants.

Accordingly, the president, under “the executive Power” and as “Commander in Chief of the Army and Navy of the United States,” has the constitutional authority under Article II to commence hostilities. Yoo counsels that Congress’s power of the purse is the real check on this power because it can approve or deny the president the ability to wage war. As Yoo puts it, “When Congress maintains a large standing Army and Navy, the President can engage in hostilities, and Congress can use its power of the purse, oversight, impeachment, and the political process if it opposes him.” Congress can issue warnings of its plans to reduce or end appropriations. Of course, cutting resources to American soldiers in the field is fraught with difficulty and peril.

Many congressional scholars and originalists take the opposite position, arguing that the declare war clause allocates that power to Congress and denies it to the president. Legal scholar Michael D. Ramsey states that the eighteenth-century meaning of declaring war wasn’t limited to formal declarations but meant initiating a state of war by a public act, whether by formal declaration or by starting armed hostilities. Ramsey cites foundational legal authorities from the seventeenth and eighteenth centuries, including English philosopher John Locke, English jurist William Blackstone, and Jacques Necker, finance minister to Louis XVI, as arguing that “declare war” meant “wage war.”

Ramsey also offers quotations from major framers and interpreters of the Constitution who all affirmed the view that only Congress could take the nation to war. His list of notables includes Thomas Jefferson, Alexander Hamilton, James Madison, and John Adams, along with subsequent influential constitutional commentaries by American jurists Joseph Story and William Rawle, who served as chancellor of the Philadelphia Bar Association from 1827 to 1836, and St. George Tucker, one of the most influential jurists and legal scholars in the early years of the United States. Ramsey further contends that no evidence shows any member of the Constitutional Convention or the state ratifying conventions thought the declare-war power was only a formal declaration power.

The Political Constitution

But textualism isn’t the only way or the best way to decide this question. We wouldn’t want the federal judiciary to parse the text for a precise understanding in this context of war, and the judiciary’s non-committal stance reflects its recognition of this fact. We need to decide the question through political settlement, through an argument about the ends and goals of constitutional order. Moreover, if we’re in a contest for constitutional authority on a question that has become lopsided in one branch’s favor, we’ll need heavy resources to resituate it. For that, we need to look to what legendary University of Virginia political theorist James Ceaser called political constitutionalism. The Constitution, Ceaser says, is now known to us mostly as a legal document: “a set of rules that can decide policies or cases; these rules are of a sort that can offer definitive answers and that could be employed and enforced by courts.” This is mostly how we think about constitutionalism now, Ceaser adds, and it is a chief impediment to recovering the constitutionalism that Ceaser counsels. But there is a “second sense” which is richer and affords us the opportunity to be constitutional people in a fuller and more potent sense. That’s “political constitutionalism,” which “understands the Constitution as a document that fixes certain ends of government activity, delineates a structure and arrangement of powers, and encourages a certain tone to the operation of the institutions.” Political constitutionalism understands that “it falls mostly to political actors making political decisions to protect and promote constitutional goals.”

This account does not diminish or indict legalistic constitutionalism, which is important in its own right, however much it now overshadows this thicker sense of constitutional meaning. But we need to recover the form of constitutionalism best suited to tackling unrestrained government by putting forward the “accumulation of ordinary policies” made “in the political realm and by political means” that will “protect the Constitution” going “well beyond anything the courts could determine.” In this debate, we should recover the older constitutional and political wisdom for why Congress is the first mover in war powers.

Joseph Story, who served as an associate justice of the Supreme Court from 1811 to 1845, explains in his abridged commentaries that this power ought to belong to Congress, where all the states and all the people of the States are represented. War, Story notes, is “so dreadful” that the “Chief magistrate” should not be able to take the nation to war. The people, Story continues, bear the expenses and the burdens of war and “would have no direct voice in the matter.” But giving the House of Representatives the power of war means “harmony” because the voice of the people sustains that power. Joseph Story’s highly regarded constitutional writings uncover why we should give Congress the nod in debates over who controls war powers. Congress, not the president, represents the nation in its fullest diversity and does so through deliberation. And because war’s consequences pulsate through the country, impacting the economy, the culture, and families, it is Congress that should declare war.

But we also face the reality that, as the 2018 Syria OLC opinion (regarding targeted strikes by the United States against Syrian chemical weapons facilities) notes, “by the middle of the twentieth century, scholars had identified well over 100 instances of military deployments without prior congressional authorization.” As John Yoo notes, “Congress has not issued a formal declaration of war since 1942.” Constitutional practice is never finally settled, however, because the process of republican self-government never finally ends. How, then, do we begin the congressional reclamation of the declaration of war powers as it is meant in the Constitution? We first need to settle when a common practice amounts to a de facto constitutional settlement.

The accumulation of OLC opinions endlessly justifying presidential use of force do not establish a final constitutional decision. Such decisions can be revisited and resettled precisely because they result from the interplay of text, institutions, and the struggle between Congress and the executive branch over the allocation of power. A constitutional decision is a settlement reached through constitutional disputes, using legislation and other measures to establish a firm program of action to restore constitutional authority.

One response to this congressional view is that the constitutional requirement is better fulfilled when Congress creates the large expeditionary military and then allows the president to use it for war. This form of delegation in the foreign policy context has not been treated as unconstitutional. But the response points to the old constitutional wisdom Story uncovered. War can touch the entire nation in many ways, from hardship to annoyance and distress; it stands to reason that democratic norms and representation are best served when Congress authorizes an offensive war, matching reasons and appropriations in public debate. And if Congress now fields fewer statesmen or seems unfit for such constitutional duties, the same might be said of the Executive branch. We might also note that where governing muscles haven’t been used, they atrophy.

Past measures can’t be undone, nor can all future uses of war powers be seamlessly rationalized with the proposed program, but Congress can pass laws that firmly and transparently proclaim and bind future presidents’ actions regarding the use of force. The first measure should be Congress’s insistence that all military expenditures used to begin an offensive war receive Congress’s approval before the expenditure.

This recent adventure in Iran should focus our attention on Congress’s neglect of its own authority to declare war, and the president’s insistence that he can take the nation to war when he wants. No options are foolproof, though. Congress approved of our efforts in Afghanistan and Iraq, both at the outset and for years to come. Civilian leadership still made the wrong decisions. But the course remains open to members of Congress who would appeal to our written constitution and the authority it gives them over the powers of war and death.

The post The Political Constitution at War appeared first on Law & Liberty.

Almost no one thinks of Budapest.

Yet the Washington statue standing beside a quiet lake in Budapest’s picturesque City Park may be the most American of them all. Not because it is the oldest or the grandest, but because of who built it and why. 

Unlike the monuments in Paris and London—products of diplomacy between nations—the Washington statue in Budapest was commissioned, financed, and presented by foreign-born American patriots. Hungarian immigrants living in the United States raised the funds needed to erect a monument to America’s first president in the capital of the country they had left behind. That distinction matters.

As America debates immigration, assimilation, and national identity on the sesquicentennial of its birth as a nation, this forgotten story offers a striking reminder of what successful immigration once looked like—not merely economically, but civically. The story begins not in Budapest, but in Cleveland.

By the turn of the twentieth century, hundreds of thousands of Hungarians had crossed the Atlantic in search of opportunity. Drawn by America’s booming steel mills, coal mines, railroads, and factories, they settled in industrial cities stretching from Pennsylvania to Illinois. By 1910, more than 300,000 Hungarians lived in the United States. Cleveland alone was home to some 60,000 Hungarians, while large communities flourished in New York, Chicago, Pittsburgh, Bridgeport, Buffalo, Detroit, Toledo, and Trenton. 

Most arrived with little money. Many spoke almost no English.

Yet they encountered something many had never experienced under the Habsburg Monarchy: citizenship in a constitutional republic where political liberty rested not on imperial favor but on the rule of law.

In 1902, Cleveland’s Hungarian community erected a bronze statue of Lajos Kossuth, the “George Washington of Hungary,” the great champion of independence. The monument itself symbolized the remarkable success of Hungarian immigrants in America. But almost immediately another idea emerged: If America could honor Hungary’s greatest patriot, why shouldn’t Hungarian Americans honor America’s?

The proposal came from Tihamér Kohányi, editor of Cleveland’s Hungarian-language newspaper Szabadság. It spread rapidly through Hungarian-American churches, benevolent societies, newspapers, and civic organizations across the United States. Pastors and priests urged participation. Steelworkers, miners, machinists, merchants, and factory laborers contributed what they could. Donations arrived not only from immigrant communities across America but even from Hungary itself. Within a remarkably short time, the necessary funds—amounting to several thousand dollars, an enormous sum for working-class immigrants—had been raised. 

Their purpose was simple: They wanted to prove that Hungarian immigrants could become loyal Americans without ceasing to honor the country of their birth.

As one contemporary account explained, they wished to demonstrate that they were “not strangers, but citizens” of the United States. America was not merely “the country that gives bread,” but a constitutional republic whose ideals deserved gratitude, loyalty, and service. 

Their gratitude took the form of a monument, and Budapest enthusiastically accepted the gift.

The city council unanimously approved placing Washington among the capital’s public monuments. After considerable debate, officials selected a prominent site in Városliget (City Park), overlooking one of Budapest’s most picturesque landscapes. Washington would stand above a lake that becomes an ice rink each winter and a boating lake each summer, framed by the fairy-tale towers of Vajdahunyad Castle and, beyond them, Heroes’ Square.

The monument itself reflected extraordinary care.

Sculptor Gyula Bezerédi created a bronze figure just over nine feet tall, set atop a sixteen-foot granite pedestal. Determined to portray Washington faithfully, he studied every known contemporary portrait before ultimately modeling the face after Jean-Antoine Houdon’s celebrated life sculpture—the only likeness made from life and still regarded as the most authentic image of America’s first president. 

The dedication on September 16, 1906, became one of the largest Hungarian-American civic celebrations ever held in Europe. Nearly five hundred Hungarian Americans crossed the Atlantic to participate. Thousands of Budapest residents joined them.

The day began with church services. Catholics gathered in St. Stephen’s Basilica, where Bishop Ottokár Prohászka celebrated Mass. Protestants assembled at Calvin Square for worship before both congregations converged on City Park. Hungarian and American flags lined the route. Civic associations marched beneath forests of banners. Choirs sang the Hungarian national anthem while the crowd stood bareheaded. Contemporary observers repeatedly remarked not on loud celebration but on the remarkable solemnity of the occasion. “It was the celebration of an idea”—one newspaper wrote.

Among those in attendance was Count Albert Apponyi, the country’s most celebrated parliamentarian and orator, along with cabinet ministers, members of Parliament, Budapest’s Mayor István Bárczy, university rectors, clergy, and representatives of dozens of Hungarian and American organizations. Invitations had even been sent to governors across the United States, forty American newspapers, and numerous American mayors. Cleveland, Philadelphia, Cincinnati, and Trenton responded with especially warm letters comparing the friendship symbolized by Washington and Kossuth. 

One notable absence remained.

The United States government declined official representation.

The reason had little to do with hostility. Washington, DC, worried that official participation might appear to endorse dual political loyalties among naturalized Americans. During the commemorative banquet, Apponyi addressed the issue directly. Hungarian Americans, he explained, had become loyal citizens of the United States while naturally retaining affection for the land of their birth. That sentiment lay at the heart of the entire celebration.

Again and again, speakers praised Washington not primarily as the victorious commander of the Continental Army but as the citizen who voluntarily surrendered military power, rejected monarchy, and established constitutional government.

Jenő Rákosi, Hungary’s leading newspaper editor, captured the point beautifully: Washington’s greatness rested on “simplicity, justice, fidelity, and devotion to duty.” He reminded the audience that Washington could have become a king but chose instead to remain “the servant of his nation, not its master.” That, Rákosi argued, was the true source of America’s greatness. Budapest’s mayor emphasized the same lesson.

Contemporary accounts described Hungarian Americans walking Budapest’s streets with tears in their eyes as they revisited the homeland many had not seen for decades. Yet there was no resentment toward America—quite the opposite.

Again and again, the speakers spoke less of prosperity than of liberty. They thanked the United States for opening its doors and for preserving the constitutional freedoms they believed Europe had denied them. Kossuth embodied the Hungary they carried in their hearts. Washington embodied the America in which they had built new lives.

This was patriotism without bitterness, and assimilation without amnesia.

The builders of Budapest’s Washington monument believed the greatest debt they owed America was civic rather than financial. America had given them constitutional liberty. Their response was to honor the man who made that liberty possible.

That is why Budapest’s Washington statue differs from Europe’s other monuments.

Paris celebrates an alliance between nations. London commemorates Anglo-American friendship. Budapest commemorates something rarer: the transformation of immigrants into grateful citizens.

The Washington monument in City Park survived two world wars, fascism, communism, and every political upheaval of the twentieth century. It still stands quietly beside the lake where Hungarian Americans placed it nearly 120 years ago.

Most Americans have never heard its story. They should. As the United States celebrates its 250th anniversary, we rightly celebrate the men who founded the republic. But the anniversary should also remind us of those who chose America later—and loved its ideals enough to carry them back across the Atlantic.

The post The Most American Statue in Europe appeared first on Law & Liberty.