THE COURTROOM spoke in small ways of old familiar differences in style and viewpoint. The close shaves and the briefcases were in evidence on one side, the facial hair and the backpacks on the other, as Judge Harold H. Greene listened to arguments designed to lead him where no judge has gone before.
Even the name of the action speaks of deep divisions; Ronald V. Dellums et al. vs. Anna QuindlenGeorge Bush demands that the president of the United States be barred from going to war against Iraq without congressional approval.
I read the Constitution the way that any lay person raised beneath its umbrella does, and while I know that Article I, Section 8 has been a subject for debate and scholarship for many years, it seems rather clear to me. Congress declares war.
The men who built this tripartite system from scratch knew too much about governments in which all the power rested with a single individual. They spread it around. How far it should be spread has always been debatable, as it was this week in Greene's courtroom in Washington.
Poor George Bush, defendant. There has never been a more likely time for the people to take a rigorous, critical, unforgiving look at how this country gets itself into armed conflict with others. The hearings airing all the disagreements and all the recent regrets are being held day after day. The troops are in the desert, waiting.
The element of surprise is largely absent, unless Saddam Hussein is stupid as well as malevolent. And so if the president eschews the consent of the legislative branch, it will not be for lack of golden opportunity. It will be because he is either imperial or fearful, the actions of a president who believes he has unlimited rights or limited support.
It was only coincidence that arguments in the matter were heard the same week as the anniversary of Pearl Harbor, the day Japanese planes gave both the executive and the legislative branches of our government what amounted to an engraved invitation to enter World War II.
That's the last time Congress approved a formal declaration of war. It's probably surprising to some Americans that while we've used troops abroad more than 100 times, Congress has only formally declared war on five occasions.
If the time for combat comes, this should be the sixth.
There's not much of a premium for George Bush in that. If Congress does vote to declare war on Iraq, it will only temporarily lift the burden of responsibility from the president's shoulders. No one ever marched in front of the Capitol chanting, "Hey, Hey, House of Representatives, How many kids did you kill today?" despite congressional approval of the Tonkin Gulf resolution. A president carries his wars with him into history, like a heavy package he cannot put down.
But congressional approval might imply something that has been conspicuously missing from this conflict since summer turned into fall: an American consensus. In our messy, troublesome, grand system of checks and balances, the ultimate check -- the checkmate -- comes in the voting booth.
The usual suspects have brought this action against the president, 54 Democratic members of Congress who can be written off within the Oval Office largely as liberal partisan peacenik types. The president would be wrong to do this, because their action illuminates something within the electorate, some desire to have this war, if it is necessary, handled cleanly, with all the t's crossed and the i's dotted, so that we can live with ourselves when the coffins start to come home.
The lesson of recent months is that Americans are weary of sneaky wars, wars that pass themselves off as something less until it is too late, until we become so busy with the business of digging the graves that we cannot kid ourselves anymore.
We know a war in peacekeeping-force clothing when we see one. The lessons of the half-century since Congress last declared war can be read in the citations in Dellums vs. Bush: Mitchell vs. Laird. Holtzman vs. Schlesinger. Lowry vs. Reagan. The president, assuring us that there will not be another Vietnam here, knows we've learned these lessons.
That assurance is not enough. The defendant in the action brought by Ronald V. Dellums et al. could render the matter moot by asking for a declaration of war from Congress if he believes that war is essential.
If he is not confident of the votes, perhaps that should tell him something about the consent of the governed. That may be a phrase that experts have argued about for years. But it seems clear to me, and clear to me too that we haven't arrived at it yet.