When the President ordered the attack on Libya without Congressional authorization, he crossed a very bright Constitutional line that he himself recognized in 2007 when he told the Boston Globe “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

The reason the American Founders reserved the question of war to Congress was that they wanted to assure that so momentous a decision could not be made by a single individual. They had watched European kings plunge their nations into bloody and debilitating wars and wanted to avoid that fate for the American Republic.

The most fatal and consequential decision a nation can make is to go to war, and the American Founders wanted that decision made by all the representatives of the people after careful deliberation. Only when Congress has made that fateful decision does it fall to the President as Commander in Chief to command our armed forces in that war.

The authors of the Constitution were explicit on this point. In Federalist 69, Alexander Hamilton drew a sharp distinction between the American President’s authority as Commander in Chief, which he said “would amount to nothing more than the supreme command and direction of the military and naval forces” and that of the British king who could actually declare war.

To contend that the President has the legal authority to commit an act of war without Congressional approval requires ignoring every word the Constitution’s authors said on this subject – and they said quite a lot.

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Editors Note: This post is re-printed with permission from The Nation magazine, where it appears as the February 4, 2010 cover story. You can see a video interview with Professor Lessig about the piece here, or take action on issues raised in the piece by visiting FixCongressFirst.org.

We should remember what it felt like one year ago, as the ability to recall it emotionally will pass and it is an emotional memory as much as anything else. It was a moment rare in a democracy’s history. The feeling was palpable–to supporters and opponents alike–that something important had happened. America had elected, the young candidate promised, a transformational president. And wrapped in a campaign that had produced the biggest influx of new voters and small-dollar contributions in a generation, the claim seemed credible, almost intoxicating, and just in time.

Yet a year into the presidency of Barack Obama, it is already clear that this administration is an opportunity missed. Not because it is too conservative. Not because it is too liberal. But because it is too conventional. Obama has given up the rhetoric of his early campaign–a campaign that promised to “challenge the broken system in Washington” and to “fundamentally change the way Washington works.” Indeed, “fundamental change” is no longer even a hint.

Instead, we are now seeing the consequences of a decision made at the most vulnerable point of Obama’s campaign–just when it seemed that he might really have beaten the party’s presumed nominee. For at that moment, Obama handed the architecture of his new administration over to a team that thought what America needed most was another Bill Clinton. A team chosen by the brother of one of DC’s most powerful lobbyists, and a White House headed by the quintessential DC politician. A team that could envision nothing more than the ordinary politics of Washington–the kind of politics Obama had called “small.” A team whose imagination–politically–is tiny.

These tiny minds–brilliant though they may be in the conventional game of DC–have given up what distinguished Obama’s extraordinary campaign. Not the promise of healthcare reform or global warming legislation–Hillary Clinton had embraced both of those ideas, and every other substantive proposal that Obama advanced. Instead, the passion that Obama inspired grew from the recognition that something fundamental had gone wrong in the way our government functions, and his commitment to reform it.

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