While most criticisms of nonoriginalism focus on the creation of constitutional rights that do not exist in the document, the failure to follow the original meaning concerning the separation of powers should receive more attention. In particular, the failure of the courts and, in areas where the courts do not typically decide matters, the political branches to enforce the original meaning has had serious harm.
Consider the requirement under the Constitution’s original meaning that Congress authorize American wars (except where the U.S. is attacked). There is a strong case to be made that Constitution’s original meaning imposes this rule. Despite claims of presidents who seek to engage in hostilities without congressional authorization, the Constitution’s original meaning would work well. By contrast, under our existing “constitutional practice,” presidents are usually able to engage in war without congressional authorization, as President Obama did in Libya. And this not only allows presidents to fight wars that the country is not behind, but also undermines the entire system of responsibility that the Constitution establishes in this area.
With a view towards President Obama’s military actions against ISIS, Mike Ramsey has a good post on whether the significant limits imposed by the Constitution’s original meaning on the President’s power to initiate hostilities operate to place inconvenient constraints on the US’s ability to take desirable actions. Mike concludes that the original meaning’s constraints, while considerable, would still allow the US significant ability to take action.
Mike writes that the President: “has independent power to respond to attacks . . . on the United States”; to “deply troops to defensive positions in support of an ally” (and to respond if those troops are attacked); and to “transfer weapons and supplies to allied forces” (which in my opinion should have been done a long time ago).