A problem with the use of original understanding as a means of constitutional analysis is that times have changed. Thus, carrying out the basic principles addressed by the document cannot only be a matter of examining the thoughts and opinions of the era when the Constitution was written. For instance, political parties greatly affected how our government works, and not always the same way -- the institution has changed over the years. But, many Framers (surely not all -- some were more realistic or did not really think of the matter too much) were against political parties. They did think them not only necessary evils, but something we could avoid, especially in the sense of the two major political parties existing today. The idea that Congress and the President would basically be united in a major sense because of one party control would seem unconceivable to them.
Surely, original understanding still has value even in this context. You can even look upon it as addressing this very fact, even though a true party system was years away. For instance, James Madison spoke of "factions," which we would call interest groups. And, various checks and balances as well as separation of powers would help deal with such animals. But, factions are not major political parties. At some point, you are trying to ram a square peg in round hole, or at least some imperfect fit. Thus, the realistic way of applying constitutional principles takes original understanding into consideration, but realizes that applying the text to current times involves more than trying to time machine James Madison and his fellows into the 21st Century. Things change over time -- the words and principles are not set in stone. This is the nature of constitutional analysis.
Such is the case when dealing with executive power. The unitary executive was put in place because in some cases dividing power was deemed problematic. The ability to focus power into one person who would have more flexibility and the chance of immediacy of action was especially deemed important in military affairs. Nonetheless, even here, there were various checks. For instance, Congress declares war and has the power of the purse. Still, the President commanded the military, and had to deal with day to day concerns. Modern day realities supply him (the only "her" being fictional thus far) more power -- a bigger military to address bigger problems. But, communication and other restraints gave the President much flexibility in the 18th Century as well.
So we have the same theme: much has changed, but yes, some things have staid the same. History can serve as a guide. Robert Kennedy's account of the Cuban Missile Crisis (Thirteen Days) suggests as much. This is only proper since he notes that JFK himself looked toward history as a guide. Various guidelines are suggested by Thirteen Days:
Moral concerns arising from our values, including preventing unnecessary harm Diversity of viewpoints (and time to consider them): "The fact that we were able to talk, debate, argue, disagree, and then debate some more was essential in choosing our ultimate course. Such time is not always present, although, perhaps surprisingly, on most occasions of great crisis it is; but when it is, it should be utilized. ... Opinion, even fact itself, can best be judged by conflict, by debate. There is an important element missing when there is unanimity of viewpoint. ... His office creates such respect and awe that it has almost a cowering effect on men." Importance of balancing military views with civilian perspectives International legitimacy and assistance: "major psychological and practical effect on [our foes] and changed our position from that of an outlaw acting in violation of international law into a country acting in accordance with twenty allies legally protecting their position" Perspective: "What guided all his deliberations was an effort not to disgrace Krushchev, not to humiliate the Soviet Union, not to have them feel they would have to escalate their response because their national security or national interests so committed them." Importance of both "word and deed"
Though I want to make clear that original understanding cannot be used too strictly, it is important to note basic principles still hold true. The afterword to Thirteen Days (RFK was writing in 1967/68, the afterword in 1971) discussed how war matters in the post-WWII world centered more and more in the hands of the President alone. Various reasons could be raised to suggest why: secrecy, flexibility, uncertainty, complexity, time restraints and an overall resistance to admitting to that a "total" war was necessary.
Such wars by constitutional principle and statute give the President various "home front" powers including economic mobilization, public order and news management. But, it also gave more legitimacy and spread blame. And, not only to Congress, but to the public at large. Many have not that the President could have asked for more sacrifice from the pubic after 9/11 instead of telling us to go shopping and cutting taxes. But, the authorization of force in 9/01 and October Resolution in 2002 highlighted the limited nature of the conflict. This was not "war," even if the President and others selectively use such terminology when they want to aggrandize more power.
But, this is not somehow compelled, nor does it mean that basic constitutional principles have suddenly changed. As noted, 18th Century executives/commanders-in-chief required a certain flexibility of action as well. Modern realities surely brought changes, but not as much as some might think. Consider the Cuban Missile Crisis. Yes, Congress was only notified days after the missiles were first discovered and a blockade is actually an act of war. All the same, if he actually bombed the missile sites things surely would seem to be different. After all, the book is not called Two Days -- there was some time. [OTOH, the President clearly thought he did not need congressional authorization even for bombing, if it came to that.] And, the OAS (regional security body) used to supply legitimacy.
This might not be enough,* but it surely was more than achieved for the Second Gulf War. The difference in the current conflict also was the time factor; as JFK noted to his speech to the nation "clearly offensive weapons of sudden mass destruction -- constitutes an explicit threat to the peace and security of all Americans ... We no longer live in a world where only the actual firing of weapons represents a sufficient challenge to a nation's security to constitute maximum peril." Given current times, this can be deemed a "sudden attack" situation, and the President clearly was understood to have the right to repel sudden attacks. This was not so, bullshit aside, this time around.
Still checks should be in place. First, when immediate action is not necessary -- and this would work on a elevating scale so that bombing of a few military targets is on a different level than invasion -- the executive cannot act on its own. Also, even here, notification immediately (if not before, if possible) should be required -- this is in no way an unconstitutional demand. Likewise, the Congress should act immediately as well, determining if the warlike action (and a blockade, again, is an act of war) is legitimate. Inaction would be a delegation, an unconstitutional one, of their authority and responsibility.
And, overall, when trouble spots are likely to occur, some basic framework should be set forth to address them. Treaty arrangements can in various cases be deemed to silently authorize certain actions, but not war writ large: the Korean "War" could not be authorized merely by treaty -- at that level of action, congressional authorization is necessary. In fact, the U.N. treaty was ratified with that assumption -- our basic constitutional principles would not, really could not (legitimately), be overturned. The Cuban Missile Crisis set forth somewhat of a borderline case, perhaps, though bombing of a foreign state would seem to me to cross the line.
Congressional authorization would be necessary to bomb the Balkans, including guarding against human rights abuses. Treaty and moral obligations might be in place for Congress to address the matter, including having a clear vote. But, current realities as well as presidential control of the military does not suddenly give one person -- even given the inherent checks and balances involved in the executive department (the afterward to Thirteen Days reminds that each branch itself has internal checks, such as Congress being divided into two branches) -- freedom to act alone. It might give us an international role that would appall Washington and others. Executive flexibility over any number of matters (though notification, following executive directives in a non-arbitrary matter, etc. cabins it somewhat) also remains.
Many things change, but not everything. Original understanding still remains important, if not solely so.
---
* Certain leaders in Congress in fact wanted JFK to provide a more forceful response. They wanted it underlined that they were "informed" not "consulted." And, such "information" was only done right before the public as a whole was informed so seems on some level merely to have been an act of pragmatic comity. But, I think it should be required.
In fact, consultation should be required -- it is the reason why congressional authorization is required by the Constitution, and not only for full-fledged war. Ongoing events and so forth might require more independence of action, but this does not take away the basic principle. Such is the idea of the test suggested in the text.