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Subject: The US Constitution Regarding Declaring and Waging War
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The Bigger Picture
4.4.02
The US Constitution Regarding Declaring and Waging War
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The Future of Freedom Foundation
http://www.fff.org/comment/com0204a.asp
Declaring and Waging War; The US Constitution
by Jacob G. Hornberger
Excuse me for asking an indelicate question in the midst of war, but
where does President Bush derive the power to send the United States
into war against another nation? The question becomes increasingly
important given that the president has indicated that once the Afghan
War has been brought to a conclusion, he intends to use U.S. military
forces to attack other sovereign nations.
It is important to keep in mind that our system of government was
designed to be unlike any other in history. First, the federal
government was brought into existence by the people through our
Constitution. Second, the Constitution is the supreme law of the land
that controls the actions of our public officials in all three branches
of the federal government. Third, the powers of the federal government
and its officials are not general but instead are limited to those
enumerated in the Constitution.
Fourth, the government is divided into three branches, each with its own
enumerated powers, and one branch cannot exercise the powers of another
branch. Fifth, the Constitution expressly constrains democratic,
majority rule. Sixth, public officials are not legally permitted to
ignore any constitutional constraint on their power but must instead
seek a constitutional amendment from the people to eliminate the constraint.
Why did the Founders implement such a weak, divided government? One big
reason: they clearly understood that historically the greatest threat to
the freedom and well-being of a people comes not from foreign enemies
but instead from their own government officials, even democratically
elected ones. And they understood that that threat to the citizenry was
always greatest during war.
Consider the words of James Madison, the father of our Constitution: "Of
all the enemies to public liberty war is, perhaps, the most to be
dreaded, because it comprises and develops the germ of every other. War
is the parent of armies; from these proceed debts and taxes; and armies,
and debts, and taxes are the known instruments for bringing the many
under the domination of the few."
What does our Constitution say about war? Our Founders divided war into
two separate powers: Congress was given the power to declare war and the
president was given the power to wage war. What that means is that under
our system of government, the president cannot legally wage war against
another nation in the absence of a declaration of war against that
nation from Congress.
Again, reflect on the words of Madison: "The Constitution expressly and
exclusively vests in the Legislature the power of declaring a state of
war [and] the power of raising armies. A delegation of such powers [to
the president] would have struck, not only at the fabric of our
Constitution, but at the foundation of all well organized and well
checked governments. The separation of the power of declaring war from
that of conducting it, is wisely contrived to exclude the danger of its
being declared for the sake of its being conducted."
Therefore, under our system of government although the president is
personally convinced that war against a certain nation is just and
morally right, he is nevertheless prohibited by our supreme law of the
land from waging it unless he first secures a declaration of war from
Congress. That was precisely why presidents Wilson and Roosevelt, who
both believed that U.S. intervention in World Wars I and II was right
and just, nevertheless had to wait for a congressional declaration of
war before entering the conflict. And the fact that later presidents
have violated the declaration-of-war requirement does not operate as a
grant of power for other presidents to do the same.
What about the congressional resolution that granted President Bush the
power to wage war against unnamed nations and organizations that the
president determines were linked to the September 11 attacks? Doesn't
that constitute a congressional declaration of war? No, it is instead a
congressional grant to the president of Caesar-like powers to wage war,
a grant that the Constitution does not authorize Congress to make.
Therefore, when a U.S. president wages what might otherwise be
considered a just war, if he has failed to secure a congressional
declaration of war, he is waging an illegal war -- illegal from the
standpoint of our own legal and governmental system. And when the
American people support any such war, no matter how just and right they
believe it is, they are standing not only against their own principles
and heritage, not only against their own system of government and laws,
but also against the only barrier standing between them and the tyranny
of their own government -- the Constitution.
Mr. Hornberger is founder and president of The Future of Freedom
Foundation in Fairfax, Va.
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