For Constitution Day I was asked by the editors of the Washington Times to contribute an article on Senator Byrd and the Constitution. This was included along with other articles as a feature on the Washington Times new Pocket Constitution App, which debuted on Sept. 17. It will be available soon at the App Store or it can be downloaded right now from your browser at: constitution.washingtontimes.com for $4.99. Here is my contribution to the new app.
The power in Robert Byrd’s shirt pocket
Senator Byrd’s main concern over a long career, during which he served “not under but with” 11 U.S. presidents, was that the powers of Congress were steadily eroding during the 20th century and into the 21st. The presidency had become in the minds of most Americans more powerful than the other two branches of government, even though they are co-equal in the Constitution, each with powers to check the others.
Nothing was more important to Byrd than the power of the purse, which resided with Congress. He despised the line-item veto, which gave presidents the power to strike from appropriations bills specific items that did not meet the president’s approval. In his autobiography Byrd wrote that during Senate debate on the line item veto in 1995 “I pulled out of my shirt pocket my dog-eared copy of the Constitution, noting that the Founding Fathers never would have approved such a proposal. Congress, I said, had been seized by a ‘collective madness.’ A power-hungry president would be able to punish a senator and his constituents, I cautioned.”
As part of his three-year struggle against this bill, Sen. Byrd became a master of the history of the Senate of the Roman Republic. He saw strong parallels with the ancient Roman Senate and the U.S. Senate. The Roman Senate was the solid foundation of Rome’s authority but when its powers were eroded over time by giving up authority to the executive, including the power of the purse; it led toward dictatorship and ruin. The Roman Senate declined — and so did the republic of Rome.
Despite Sen. Byrd’s herculean efforts, Congress passed the line-item veto bill in 1996. President Bill Clinton was the first (and only) president to use it in 1997. Byrd’s efforts against it did not stop. He and five other members of Congress filed a federal suit against the Clinton administration (Raines v. Byrd, 1997) on the grounds that the line-item veto was unconstitutional. The Supreme Court threw the case out because the senators and congressman had no standing in the case as they were not personally harmed by the law. But the following year in Clinton v. City of New York, the high court declared the line-item veto to be unconstitutional because it violated the clear language of the Constitution that both houses of Congress must pass an appropriations bill and the president has only two choices, to sign it into law or to veto it. Nothing in the Constitution gave the president the option of tinkering with it after passage by Congress. Byrd raised his pocket version over his head at the press conference held when the Supreme Court made its ruling and shouted “God save this honorable court!”
Byrd was a hawk during the war in Vietnam but he became known internationally for his principled stance against going to war in Iraq following the tragedy of September 11. It was, again, a matter of the Constitution, which clearly states that only Congress can declare war. Yet Congress has allowed its war power to be eroded in various ways, going back to the Korean Conflict. The War Powers Act of 1973 gave presidents the power to act first and report back to Congress after the fact. In the Iraq War Resolution of 2002, Congress expanded the president’s power to include waging wars not just against hostile nations but organizations or even individuals engaged in anti-U.S. acts of terror anywhere in the world.
Byrd saw the dangerous precedent in the Iraq War Resolution as the concept of pre-emption. Wars against terrorists have emphasized the idea that we needed to attack before we are attacked even if a particular nation is not an immediate threat but might become one.
Sen. Byrd stood on the floor of the Senate on the eve of the war in Iraq and said, “We stand passively mute in the United States Senate, paralyzed by our own uncertainty, seemingly stunned by the sheer turmoil of events.” The Constitution does not say how Congress should go about the process of declaring war. Senator Byrd assumed that the Senate and the House would do their duty to be deliberative bodies that debate issues before the nation and pass laws that reflect the public will.
If there is a Constitution Day moral to these two stories about Sen. Byrd’s defense of the Constitution and the prerogatives of the Senate, it could be that we ignore our duties and responsibilities under the Constitution at the peril of the nation. Terrorists cannot destroy us, but we can destroy our government, our country and our Constitution by standing passively mute, by not standing up for the constitutional authority of all three branches of government, and by not paying attention to the nation’s business.
Sen. Byrd wanted the whole country to reflect on the Constitution each Sept. 17, the day the Constitution was adopted by the delegates assembled at Philadelphia in 1787. There is much to reflect about in these current troubling times. Sen. Byrd saw the fall of Rome as a real event in history that had meaning for us in our own time.
- Ray Smock is director of the Robert C. Byrd Center for Legislative Studies at Shepherd University in Shepherdstown, W.V. He served as the first official historian of the U.S. House of Representatives from 1983 to 1995.