On September 17, 1787, 39 men ratified the United States Constitution. Years later, to commemorate the creation of this momentous document, Senator Robert Byrd proposed a day of federal observance, and in 2004, September 17 officially became “Constitution Day.”

In honor of this special day, Colgate’s Institute for Philosophy, Politics and Economics and The Center for Freedom and Western Civilization held a special debate between two renowned scholars this past Wednesday in the Persson Hall Auditorium on the topic of “Rules of Engagement: Executive Power During the War on Terror.” Coordinated by the Institute’s director, Professor of Political Science Stanley C. Brubaker, the men focused on executive war powers as defined by the Constitution and its amendments.

Glenn Sulmasy, Professor of Law at the United States Coast Guard Academy, posited that the topic of executive power was controversial and would remain so regardless of who won the presidential election. Sulmasy stated that the war with Al Qaeda could be viewed as either a “law enforcement action” or a “law of armed conflict.” While conceding that neither definition adequately captures the sambiguity of the current war, Sulmasy addressed the issue as more of an “armed conflict.”

Having defined the issue at hand, Sulmasy went on to discuss the Constitutional drafters’ original intentions for Executive power. Both Alexander Hamilton and “liberal” Thomas Jefferson, Sulmasy said, supported executive power and sought to correct the problems of the weak Articles of Confederation.

Professor Sulmasy named Montesquieu and Blackstone, in addition to Locke, as being two of the most influential sources for the Constitution, citing the men’s contention that the Executive control war and peace. George Washington, he said, set a precedent for expanding the powers of the Executive to encompass foreign diplomacy.

Having outlined the history of the Constitution, Sulmasy then addressed the legislature’s “power of the purse,” arguing that Congress did still have power in the proceedings and reminding us that indeed it was our elected Congress that passed the Patriot Act. He also felt that the four to eight year limit on a President’s term made it extremely “hyperbolic” to refer to a president’s reign of “tyranny.” Citing a need for “speed, flexibility and dispatch”, the professor closed by asking, “Is it really the Executive, or it is Congress who is not fulfilling their role to check the executive?”

Steven T. Wax ’70, the debate’s second speaker and an Oregon State Public Defender, opened by saying that he felt the “need to discuss the extent to which the Executive was limited by the Bill of Rights.” He cited that it is within the “power of the Executive to ignore the rule of law in name of national defense” and also reminded us that the Founding Fathers warned of a strong Executive’s resemblence to tyranny.

After a quick discussion of checks and balances, Wax moved on finally to the issue of habeas corpus, addressing the controversy over Guantanamo Bay. Wax explained that the judiciary branch is supposed to review the President’s decisions and tell him what he is not allowed to do, as they have done twice in the case of Guantanamo Bay.

The debators’ rebuttals focused a great deal on habeas corpus as well, referencing the Geneva Convention and concerns over non-citizens’ access to our federal courts. Sulmasy said that what is happening at Guantanamo is wrong and suggested the creation of a special terrorist court system. Wax countered that fewer than 5% of Guantanamo inmates are actually field soldiers and that they will therefore are not afforded rights of habeas corpus. Wax also said that by Bush’s declaring the Taliban a failed state, the Geneva Convention would be rendered inapplicable, thus allowing for the use and redefinition of torture.

After the initial debate, the audience raised many interesting questions, including the unclear application of the laws of war and the definition of a battlefield. Both speakers were free to discuss their viewpoints and what they feel should be done in this age in which terrorism is a threat and proper intelligence is crucial.

The two speakers were not polarized on issues, and more than a few times they managed to identify areas of common ground. The individual speeches and audience questions were delivered with articulate, level passion, providing an excellent instance of a civil discussion of pressing issues.

The Annual Colgate Constitution Day Debate is in its second year. Last year’s speakers were William Allen (Michigan State University Professor of Political Science and former Chair of the United States Commission on Civil Rights) and Randall Kennedy (Michael R. Klein Professor at Harvard Law School). They discussed the topic of “Racial Equality Under the Constitution.”