Bruce Fein
Constitutional Lawyer and Author

The United States was born 240 years ago with a shield that proclaimed, “Peace, Independence, Liberty.”
It marked an inflection point in the human narrative. For thousands of years, mankind had exalted warriors and nations who turned children into orphans, wives into widows, and had fathers bury sons rather than sons bury fathers in chronic wars for the sake of power, riches and the adolescent thrill of domination.
Our forefathers, in contrast, risked their lives, their fortunes, and their sacred honor to give birth to a nation whose glory was liberty and whose march was the march of the mind. The ultimate goal of the United States would not be power, domination, or conquest; it would be a fair opportunity for citizens to develop their faculties and pursue their ambitions free from domestic or foreign predation. President Thomas Jefferson elaborated in his First Inaugural Address: “[P]eace, commerce, and honest friendship with all nations, entangling alliances with none.” Julius Caesar’s notorious, “I came, I saw, I conquered,” was sharply repudiated.
Through the singular genius of James Madison, the United States generally honored the sacrifices of Lexington and Concord for more than a century. The sage father of the Constitution entrusted to Congress alone (Article I, section 8, clause 11) responsibility for crossing the Rubicon from peace to war—a euphemism for legalizing murder. The legislative personality, he understood, was highly risk-averse, and would accept responsibility for the scourge of war only in self-defense. Confirming Madison’s wisdom, Congress has declared war but five times in 227 years, and only in cases of actual or perceived foreign aggression against the United States.
But for the last 70 years, we have crucified the Constitution on a cross of multi-trillion dollar gratuitous presidential wars that have crippled liberty; empowered the President to assassinate citizens at will based on secret evidence; impoverished the people; turned genius from production to destruction; and, awakened enemies who would otherwise self-destruct in internecine warfare. At present, we are engaged in nine (9) presidential wars in Libya, Somalia, Yemen, Syria, Iraq, Afghanistan, Pakistan and against ISIS and Al-Qaeda everywhere on the planet. Their collateral damage has included making children orphans, wives widows and fathers dig graves for their sons. President Dwight D. Eisenhower’s worst nightmare of a multi-trillion dollar military-industrial-counterterrorism complex occupying all the corridors of power has come true.
Mr. Madison did not foresee that his constitutional handiwork would not be self-correcting. He did not foresee a Congress controlled by craven, narcissistic, invertebrate, pygmies exhibiting a complacency in the face of constitutional peril indistinguishable from waltzing on the Titanic as the iceberg neared.
Only enlightened citizens can save the Republic from self-ruination. It will include wars with China and Russia and a plunge into bankruptcy precipitated by an unsustainable multi-trillion dollar national debt.
Citizens must first exercise the vote to exclude from Congress any candidate unpledged to impeach, convict, and remove from office any President who begins or continues war without a congressional declaration.
They must also inculcate a cultural repudiation of war except in self-defense. To borrow from Abraham Lincoln:
“Let opposition to war not in self-defense, be breathed by every American mother, to the lisping babe, that prattles on her lap—let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs;—let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let is become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its alter.”

We should not be starry-eyed. The probability of failure is as great as that faced by the unknown heroines who first denounced slavery and the subjugation of women thousands of years before their prohibition or amelioration. Although the heroines were instantly exterminated by slave owners or misogynists, they deserve votive offerings as saints. Where would we be now if they had not spoken truth to power?
The human condition improves when men and women honor the motto: “If it’s the right thing to do, do it.”


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More:Presidential Wars Declare War Clause War Only In Self-defense

Original: Huffington Post

Bruce Fein
Constitutional Lawyer and Author

Contrary to conventional wisdom (which is invariably wrong), the United States Constitution is the nation’s strategy for greatness. The strategy entails invincible self-defense; peace, commerce, and honest friendship with all nations; and, entangling alliances with none.
At present, that strategy means returning our troops stationed abroad back to the United States to defend we the people, not foreigners whose loyalties lie elsewhere. It means repositioning all of our air and naval forces to defend we the people, not foreigners whose loyalties lie elsewhere. It means devoting our cyberwarfare capabilities to defending we the people, not foreigners whose loyalties lie elsewhere. And it means renouncing all of our treaty commitments to defend other nations militarily without congressional declarations of war.
Our national strategy of invincible self-defense; peace, commerce, and honest friendship with all nations; and, entangling alliances with none, finds expression not in the Constitution’s text, but in its dispersal of power among the three branches.
Institutions possess distinct personalities that transcend the personalities of the occupants of the offices. These institutional personalities determine policies within a very narrow range.
The Constitution as our national strategy follows inexorably from its assignment of the war power exclusively to Congress, i.e., its prohibition of presidential wars. Article I, section 8, clause 11 empowers only the legislative branch to declare war.
The Constitution’s profound authors knew that Congress would be a “talking shop.” It would be highly risk-averse, like a dog that retreats to its kennel when danger appears. Members of Congress would have little to gain but much to lose politically by initiating war. No obelisk or monument had ever been constructed to honor a legislator’s vote for war. Legislative powers diminished during belligerency. And if the war ended in defeat or a truce because of the President’s ineptitude as commander in chief or otherwise, Members would not be able to evade political responsibility.
The Constitution’s drafters knew to a virtual certainty that Congress would only declare war in response to actual or perceived aggression against the United States, i.e., only in self-defense. Indeed, during the drafting, debating, and ratification of the Constitution, no participant conceived that the war power would ever be exercised for preemptive, preventive, humanitarian, economic, democratizing or other non-self-defense objectives.
History has vindicated the Constitution’s conception of the congressional personality. In 227 years, Congress has declared war in only five conflicts, and only in response to actual or perceived aggression against the United States: the War of 1812; the Mexican-American War; the Spanish-American War; World War I; and, World War II. The Declare War Clause required Congress to decide whether to cross the Rubicon from peace to war. Congress could not escape its responsibility by delegating the decision to the President. The June 18, 1812 Declaration of War is exemplary. It provided:
“Be it enacted by the Senate and House of Representatives of the United States in Congress assembled, That war be and the same is hereby declared to exist between the United Kingdom of Great Britain and Ireland and the dependencies thereof, and the United States of America and their territories....”
The Constitution’s national strategy of wars only in self-defense and declared by Congress is vastly superior to all the alternatives that have ever been conceived or attempted. War diverts invaluable genius and resources from production to killing, which is an economic deadweight. War crushes liberty and silences the law. War breeds secrecy, which fathers fraud, waste, abuse, and crime. War subordinates civilian supremacy to tenuous claims of military necessity. War makes killings legal that would customarily be punished as first-degree murder. War makes children orphans and wives widows. War causes courageous soldiers to be slaughtered and maimed. It causes taxes to be raised or money to be borrowed to finance the war machine.
Abraham Lincoln elaborated:
“The provision of the Constitution giving the war making power to Congress was dictated...by the following reasons: kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.”
Lincoln was echoing James Madison, father of the Constitution, who had lettered Thomas Jefferson:
“The constitution supposes, what the History of all Govts demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl. But the Doctrines lately advanced strike at the root of all these provisions, and will deposit the peace of the Country in that Department which the Constitution distrusts as most ready without cause to renounce it.”
Mr. Jefferson agreed in a letter to Mr. Madison: “We have already given in example one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay.”
James Wilson, delegate to the constitutional convention and future Associate Justice of the United States Supreme Court, similarly understood that depositing the war power with Congress would be the death knell to gratuitous wars. He informed the Pennsylvania Ratification Convention:
“This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress, for the important power of declaring war is vested in the legislature at large;—this declaration must be made with the concurrence of the House of Representatives; from this circumstance we may draw a certain conclusion, that nothing but our national interest can draw us into a war.”
The United States generally followed the Constitution’s national strategy for a century. We astonished the world with our vertical climb in riches and prosperity by devoting our energies and talents to making money in lieu of making war. We proved the prescience of Adam Smith’s instruction:
“Little else is requisite to carry a state to the highest degree of opulence from the lowest barbarism, but peace, easy taxes, and a tolerable administration of justice: all the rest being brought about by the natural course of things.”

But after a century, we lost our way. We were misled by the intellectual delusions and messianic ambitions of Woodrow Wilson and the rebarbative apotheosis of war and killing by Theodore Roosevelt. The former coveted war to transform the world into Camelot. The latter barked that,”[i]f there is not the war, you don’t get the great general; if there is not a great occasion, you don’t get a great statesman; if Lincoln had lived in a time of peace, no one would have known his name.” As President and commander in chief, Roosevelt warred against Filipinos fighting for self-determination in the aftermath of the Spanish-American war by employing waterboarding and perpetrating mass atrocities. The United States Senate Investigating Committee on the Philippines meticulously documented the grisly war tactics that flourished under President Roosevelt.
We ignored the warning of Secretary of State John Quincy Adams on July 4, 1821, that we could become dictatress of the world, but if we did, our policy would degenerate from liberty to coercion and domination, and we would plunge from light to darkness.
We have come full circle from fighting the empire ambitions of British King George III to embracing them. We have become the chosen people of the Old Testament bent on destroying modern counterparts of the Kenites, the Kenizzites, the Kadmonites, the Hittites, the Rephaims, the Amorites, the Canaanites, the Girgashites, the Jebusites, the Perizzites, the Ammonites, the Amalekites, and the Philistines.
To recapture our former greatness and prosperity attained by a national strategy of invincible self-defense; peace, commerce, and honest friendship with all nations; and, entangling alliances with none, we need only to follow the Constitution’s entrustment of decisions on war or peace exclusively to Congress.
The Constitution’s authors were intellectual and philosophical giants that have never been equaled. In comparison, today’s leaders are pygmies.
Should we follow the giants or the pygmies?

Follow Bruce Fein on Twitter: www.twitter.com/brucefeinesq

Huffington Post

Bruce Fein
Constitutional Lawyer and Author

Limitless executive power has wounded the Constitution and the rule of law. The wounds may soon compound.
In a November 20, 2016 interview on CBS’ “Face the Nation,” Vice President-elect Mike Pence declared that waterboarding, i.e., torture, assassinating family members of suspected terrorists, or any other tactic might be employed by President-elect Donald Trump to defeat “radical Islamic terrorism.” He refused to rule out any barbarity.
During his presidential campaign, Mr. Trump applauded “torture” and vowed to “bring back a hell of a lot worse than waterboarding” to oppose international terrorists. He asserted that he would kill their family members. When confronted with the illegality of both tactics by Fox News’ Bret Bair, Mr. Trump changed the subject.
The President-elect has seemingly embraced President Richard Nixon’s extra-constitutional conviction that, “[W]hen the President does it, that means it is not illegal.”
Mr. Nixon forgot that King George III lost to General George Washington in the Revolutionary War, and that the President is not an elected King. He paid the price with Articles of Impeachment voted by the House Judiciary Committee and forced resignation in the face of certain conviction for high crimes and misdemeanors by the Senate.
The foremost role of the Attorney General (akin to Horatius at the Bridge) is to protect the Constitution from presidential vandalizing.
President-elect Trump has nominated Alabama Senator Jeff Sessions, which is subject to Senate confirmation under the Constitution’s Appointments Clause.
The Senate Judiciary Committee and the Senate are saddled with the solemn responsibility of insuring that the nominee is qualified to prevent President-elect Trump from vandalizing the Constitution. Meticulous and fair public hearings on Mr. Sessions’ nomination are imperative.
A multi-pronged litmus test should be applied.
The nominee should be required to affirm that the Declare War Clause of Article I, section 8, clause 11 prohibits our nine ongoing presidential wars in Libya, Somalia, Yemen, Syria, Iraq, Afghanistan, and Pakistan, and against Al Qaeda and ISIS everywhere in the world. The Declare War Clause meaning—like the meaning of the word “is”—is crystal clear. James Madison, father of the Constitution and Bill of Rights, Member of the Virginia Ratification Convention, chief author of The Federalist Papers, Member of Congress, twice Secretary of State, and twice President of the United States, is the definitive expositor of the Constitution. He elaborated in a letter to Thomas Jefferson the universal understanding of the Declare War Clause and its cornerstone importance:
“The constitution supposes, what the History of all governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has, accordingly, with studied care, vested the question of war in the Legislature. But the doctrines lately advanced strike at the root of all these provisions, and will deposit the peace of the Country in that Department which the Constitution distrusts as most ready, without cause, to renounce it.”
The nominee should also be required to affirm that constitutional due process categorically prohibits the President from playing prosecutor, judge, jury, and executioner to kill any American citizen he decrees is an imminent danger to national security or otherwise based on secret, unsubstantiated information. That God-like power is vastly more tyrannical than anything laid at the feet of King George III in the Declaration of Independence.
The nominee should be required to affirm that the President may not conduct electronic surveillance against American citizens except as authorized by statute—a limitation imposed by the Foreign Intelligence Surveillance Act, 50 U.S.C. 1809 (a) (1). That means Executive Order 12333 cannot justify surveillance of American citizens for foreign intelligence purposes.
The nominee should be required to affirm that the President may not circumvent the Treaty Clause of the Constitution with executive agreements like the Joint Comprehensive Plan of Action intended to restrain Iran’s nuclear ambitions. He should be required to affirm that an agreement or contract between two sovereigns constitutes a treaty requiring Senate ratification by a two-thirds majority. Accordingly, he should be required to affirm that the JCPOA is of no force or effect until and unless ratified by the Senate as a treaty.
The nominee should be required to affirm that torture under any circumstances violates the Eighth Amendment, federal criminal law, and the Convention Against Torture. He should be further required to affirm that waterboarding or worse constitutes torture, and that he would prosecute those crimes.
The nominee should be required to affirm that the intentional killing of family members of suspected terrorists constitutes a prosecutable war crime under the War Crimes Act.
The nominee should be required to affirm that the President is constitutionally forbidden to circumvent the congressional power of the purse by soliciting funds from foreign governments to fight wars that Congress has not declared or funded as President George H.W. Bush did in conducting the 1991 Kuwait War.
The nominee should be required to affirm that any presidential violation of the these constitutional or statutory limits on executive power would constitute an impeachable high crime and misdemeanor warranting conviction and removal from office under Article II, section 4.
This multi-pronged litmus test asks only that the Attorney General honor his required oath to “support and defend the Constitution of the United States...without any mental reservation or purpose of evasion....”
The Senate should never forget the warning of Supreme Court Justice Louis D. Brandeis in Olmstead v. United States (1928): “Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”
The constitutional litmus test I have proposed for the Senate regarding Mr. Sessions’ nomination would admittedly constitute a double standard. For several decades, both Democratic and Republican presidents have routinely flouted constitutional limits on executive power with the approval or tacit support of Democratic and Republican Attorneys General without provoking congressional resistance.
But presidential lawlessness does not become lawful by repetition. We have fallen into a constitutional abyss through a combination of executive boldness and congressional cravenness over the course of 70 years. If we refuse to climb out to avoid a double standard our ruination is inescapable.
In sum, it is not that we love Mr. Sessions less, but that we love the Constitution more that he should be subjected to the proposed multi-pronged litmus test for confirmation.

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More:Attornery General Nominee Constitutional Oath

Original: Huffington Post

Bruce Fein
Constitutional Lawyer and Author

War is the greatest scourge of mankind. Unsentimental Civil War General William Tecumseh Sherman remarked: “I am tired and sick of war. Its glory is all moonshine. It is only those who have neither fired a shot nor heard the shrieks and groans of the wounded who cry aloud for blood, for vengeance, for desolation. War is hell.”
 
War not only kills and maims on an industrial scale, it also destroys liberty by creating an Executive Leviathan. James Madison presciently taught:
 
“War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasures are to be unlocked; and it is the executive hand which is to dispense them. In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered; and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace.
 
Hence it has grown into an axiom that the executive is the department of power most distinguished by its propensity to war: hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence.”
 
Since war is hell, the United States Constitution champions peace except in self-defense. It does so by exclusively entrusting Congress with decisions to cross the Rubicon from peace to war. Thus, Article I, section 8, clause 11 gives Congress power “to declare war.” Its authors knew the congressional personality would be highly risk-averse or timid, which would deter declarations except in cases of actual or perceived aggression against the United States itself. James Wilson, delegate to the constitutional convention and future Justice of the Supreme Court, elaborated to the Pennsylvania ratification convention:
 
“This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress, for the important power of declaring war is vested in the legislature at large;—this declaration must be made with the concurrence of the House of Representatives....[which is elected every two years by the people]”
 
The Constitution prohibits congressional evasion of its responsibility for war and peace by delegation to the Executive Branch. It would condemn a statute authorizing the President to initiate war whenever the White House believes the public interest requires it. The Constitution’s separation of powers is intended to safeguard liberty irrespective of the willingness of one branch to surrender its powers to another. Chief Justice John Roberts explained in Wellness Int’l Network Ltd v. Sharif (dissenting): “[W]e have emphasized that the values of liberty and accountability protected by the separation of powers belong not to any branch of the Government but to the Nation as a whole. A branch’s consent to a diminution of its constitutional powers therefore does not mitigate the harm or cure the wrong.”
 
More than 225 years of experience under the Constitution have vindicated its expectation that Congress will declare war only in self-defense. Congress has done so on but five (5) occasions, and each was a response to actual or perceived aggression against the United States itself.
 
1.      War of 1812. Congress declared war against Great Britain after receiving a war message from President James Madison. It asserted, among other things, that the British had committed acts of war against the United States; had kidnapped thousands of American sailors from American flagged ships sailing on the high seas in violation of international law; had plundered neutral American merchant ships; had spilt the blood of American citizens within our territorial jurisdiction; and, had provoked Native American Indian savagery against American civilians.
 
2.      1846-48 Mexican-American War. Congress declared war against Mexico after receiving a war message from President James K. Polk claiming that the Mexican military had declared war against the United States, had killed or wounded 16 American soldiers on American soil, and had taken scores of others prisoner. (In fact, American soldiers had not been killed on American soil, but Congress acted on the assumption that they had).
 
3.      1898 Spanish-American War. Congress declared war on Spain after receiving a war message from President William McKinley claiming that hostilities between Spain and Cuba were causing American deaths and the destruction of American property. The President also insinuated that Spain was responsible for the explosion of the Maine in Havana harbor and the consequent deaths of hundreds of American sailors and marines. He amplified:
 
“The destruction of that noble vessel has filled the national heart with inexpressible horror. Two hundred and fifty-eight brave sailors and marines and two officers of our Navy, reposing in the fancied security of a friendly harbor, have been hurled to death, grief and want brought to their homes, and sorrow to the nation.
 
The Naval Court of Inquiry, which, it is needless to say, commands the unqualified confidence of the government, was unanimous in its conclusion that the destruction of the Maine was caused by an exterior explosion, that of a submarine mine. It did not assume to place the responsibility. That remains to be fixed.
 
In any event, the destruction of the Maine, by whatever exterior cause, is a patent and impressive proof of a state of things in Cuba that is intolerable. That condition is thus shown to be such that the Spanish government cannot assure safety and security to a vessel of the American Navy in the harbor of Havana on a mission of peace, and rightfully there. . . .”
 
4.      World War I. Congress declared war against Germany after receiving a war message from President Woodrow Wilson asserting that Germany had made war on the United States, and that “American ships have been sunk, American lives taken, in ways which it has stirred us very deeply.” He maintained that Germany had put us in a state of war, and was asking Congress to act defensively:
 
“I advise that the Congress declare the recent course of the Imperial German Government to be in fact nothing less than war against the Government and people of the United States; that it formally accept the status of belligerent which has thus been thrust upon it, and that it take immediate steps not only to put the country in a more thorough state of defense but also to exert all its power and employ all its resources to bring the Government of the German Empire to terms and end the war.”
 
5.      World War II. Congress declared war against Japan after receiving a war message from President Franklin D. Roosevelt advising that a state of war existed because of Japanese naval and air attacks against the United States.
 
Since World War II, no President has asked Congress for a declaration of war. The White House either initiates wars on its own, or asks Congress to authorize the President to decide whether and when to go to war through unconstitutional delegations of the war power.
 
Presidents have done so because they know Congress will not declare war against any foreign country or non-state actor except in response to war already commenced against the United States itself. None of our multiple wars since World War II has been in self-defense, and none has been declared by Congress, for example, Korea, Libya, Bosnia, Kosovo, Somalia, Iraq, Afghanistan, Syria, Al Qaeda, the Islamic State of Iraq and Syria. The 9/11 abominations were not acts of war by a non-state actor, but industrial scale murder. Accordingly, the 20th hijacker, Zacarias Moussaoui, was tried and convicted in a federal court of, among other things, conspiracy to commit acts of terrorism and conspiracy to murder. He was not accused of war crimes. The 2001 Authorization to Use Military Force (AUMF) declines to characterize the 9/11 crimes as a war of aggression against the United States. The text references “treacherous violence” and “grave acts of violence.”
 
Our multi-trillion dollar warfare state can be ended by following rather than flouting the Constitution’s allocation of war powers. We need presidential candidates who will sign “no presidential war” pledges, congressional candidates who will pledge to impeach a president for initiating presidential wars, and voters who will boycott presidential and congressional candidates who refuse to make these respective pledges. There are no better ways to avoid the scourge of war.

Follow Bruce Fein on Twitter: www.twitter.com/brucefeinesq

Original: Huffington Post

Bruce Fein
Constitutional Lawyer and Author

The Constitution’s architects unanimously agreed on the allocation of war powers. They unanimously agreed that only Congress should be entrusted with decisions to initiate war under Article I, section 8, clause 11. (The President would retain authority to “repel sudden attacks”).
The architects made Congress the exclusive steward of the war power because legislators have nothing to gain and everything to lose by gratuitous belligerency. No war monument has ever been erected to immortalize a legislator; and, the powers of Congress recede during wartime.
The opposite is true of the executive branch, whose personality salutes Mars and scorns Minerva. James Madison, father of the Constitution, elaborated:
In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man; not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasures are to be unlocked; and it is the executive hand which is to dispense them. In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle.The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace.
Future Chief Justice of the United States, John Jay, similarly remarked in Federalist 4:
[A]bsolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people.
The reasons advanced by Madison, Jay, and others against presidential wars did not pivot on the state of weapons technology or speed of travel, but on eternals of human nature, including the incorrigibility of the executive branch in craving war for the sake of war with ulterior motives pernicious to liberty.
In serving as megaphones for an extra-constitutional American Empire and multi-trillion dollar permanent global presidential wars, the New York Times and the Washington Post propagate myths about the war powers worth more than two carrier battle groups to the Pentagon.
Myth 1: Article II of the Constitution empowers the President unilaterally to initiate war—including nuclear war—without a legislative mandate enacted by Congress. 

Article I, section 8, clause 11 of the Constitution unambiguously entrusts to Congress—not the President—exclusive responsibility for deciding to take the nation from a state of peace to a state of war. Every participant in the drafting, debating, and ratifying of the Constitution shared that understanding, including George Washington, Alexander Hamilton, James Madison, father of the Constitution, future Justice of the Supreme Court James Wilson, United States Chief Justice John Marshall, Thomas Jefferson, and John Adams. James Madison expressed the national consensus in a letter to Jefferson: “The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature.” That consensus was neither disturbed nor violated for 163 years. Beginning in 1802, for instance, Congress enacted ten statutes expressly authorizing military action by Presidents Jefferson and Madison against the Barbary States. That consensus also shipwrecked President Woodrow Wilson’s League of Nations’ treaty, which would have obligated the United States to defend the boundaries of other nations without congressional declarations of war. To obtain Senate ratification of the United Nations Treaty, Article 43, paragraph 3 specifically requires a congressional declaration of war before the President may use our armed forces to implement a U.N. Security Council resolution. From Potsdam, President Harry Truman cabled Senator Kenneth McKellar: “When any such agreement or agreements are negotiated [to use the United States Armed Forces under Article 43 of the United Nations Treaty] it will be my purpose to ask Congress for appropriate legislation to approve them.”
In sum, there is no intellectually respectable support for the theory that the Constitution authorizes presidential wars.
Myth 2: Treaties ratified by the United States Senate can constitutionally obligate the United States to conduct war on behalf of foreign nations without a congressional declaration of war.
Treaties are subordinate to the United States Constitution, including Article I, section 8, clause 11. Justice Hugo Black elaborated in Reid v. Covert (1956):
“Article VI, the Supremacy Clause of the Constitution, declares:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; . . .
There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates, as well as the history that surrounds the adoption of the treaty provision in Article VI, make it clear that the reason treaties were not limited to those made in “pursuance” of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution...to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions.
Accordingly, Article V of the 1949 North Atlantic Treaty Organization (NATO) which purports to require to the United States to defend all 28 NATO members from attack, including Estonia, Latvia, and Lithuania, is unconstitutional. The House of Representatives is excluded from the treaty process, and its concurrence is necessary for a congressional declaration of war. James Wilson, future Justice of the United States Supreme Court, underscored the importance of that requirement to the Pennsylvania ratification convention:
“This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress, for the important power of declaring war is vested in the legislature at large;—this declaration must be made with the concurrence of the House of Representatives; from this circumstance we may draw a certain conclusion, that nothing but our national interest can draw us into a war.”
Article V of NATO marked the first occasion in 163 years in which a treaty purported to require the United States to conduct war on behalf of other nations without congressional declarations.
Myth 3: Unconstitutional presidential wars have become constitutional by dint of longstanding practice beginning in 1950 with President Harry Truman’s war in Korea without a congressional declaration.
Constitutional transgressions are not excused because they have been repeated for long years. The United States Supreme Court held in Erie Railroad v. Tompkins (1936) that for a century since Swift v. Tyson (1842) federal courts had been unconstitutionally creating federal common law to govern lawsuits between citizens of different states. The Court similarly held unconstitutional the use of the legislative veto to invalidate executive action in INS v. Chadha (1983), notwithstanding hundreds of such provisions enacted during the previous 54 years with the consent of the President.
The Court explained in Myers v. United States (1926) that great weight is to be given to the practices and understandings of early administrations and Congresses populated by many who had participated in the 1787 constitutional convention. They were uniformly against presidential wars. President George Washington, who presided over the 1787 convention, voiced the standard view: “The Constitution vests the power of declaring war with Congress. Therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure.”
Myth 4: Presidential wars are constitutionally permissible because Congress repeatedly acquiesces.
It is true that presidential wars without congressional declarations have been chronic since 1950, including but not limited to: President Truman’s war in Korea; President Lyndon Johnson’s Vietnam War; the Secret War in Laos conducted by Presidents Johnson and Richard Nixon; President George H.W. Bush’s war in Panama; President William Clinton’s wars in Bosnia and Serbia; and, President Barack Obama’s wars against Libya and the Islamic State of Iraq and the Levant (ISIL) anywhere on the planet. And it is equally true that Congress has generally acquiesced in these usurpations because terrified of being held politically and morally accountable for matters of supreme significance to the nation and our armed forces. But the Supreme Court has held that the Constitution’s separation of powers does not permit one branch to surrender its powers to another branch, for instance, a line-item veto invalidated in Clinton v. New York (1998). Chief Justice John Roberts elaborated in Wellness International Network, Limited v. Sharif (2015): “[W]e have emphasized that the values of liberty and accountability protected by the separation of powers belong not to any branch of the Government but to the Nation as a whole. A branch’s consent to a diminution of its constitutional powers, therefore does not mitigate the harm or cure the wrong.”
Myth 5: The President is entitled to flout the Constitution’s allocation of war powers and conduct presidential wars because changes in technology and the obligation of the United States to exercise world leadership have made the Constitution obsolete in foreign affairs.
The Constitution’s authors were long-headed. They knew experience and unforeseeable changes in circumstances might dictate a need for constitutional alterations or adaptations. Thus, Article V was written to authorize amendments supported by two-thirds majorities in Congress and three-fourths of the state legislatures. The very first Congress proposed the Bill of Rights, which was ratified by the States. No amendment has ever been proposed, however, to disturb the Constitution’s assignment to Congress of exclusive responsibility for decisions to cross the Rubicon from peace to war.
Justice Black denied that the mushrooming United States role in international affairs since the Constitution was ratified in 1787, simpliciter, authorized the exercise of extra-constitutional powers in Reid v Covert:
If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it prescribes. But we have no authority, or inclination, to read exceptions into it which are not there.

All Empires create myths to conceal or expiate lawlessness, cruelties, or double standards. Thus, the Roman Empire turned enemy territories into wilderness and called it peace. The American Empire turns the Constitution’s war powers into a jumble of political calculations with ulterior motives and calls it law. The more things change, the more they stay the same.
 
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Original: Huffington Post

Bruce Fein
Constitutional Lawyer and Author

Democratic presidential nominee Hillary Clinton more threatens the Constitution’s separation of powers and celebration of liberty than does her vulgar Neanderthal opponent, Republican Party nominee Donald Trump.
Justice Louis D. Brandeis explained in Olmstead v .United States (1928): “Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.”
Mr. Trump is a would-be, evil-minded ruler. Among other things, he has embraced torture, the extermination of families of suspected terrorists, concentration camps for American Muslims and their demotions to second-class citizenship, punishment of Trump detractors, vigilante justice, warrantless military spying on American citizens, and bigotry towards Americans with Mexican heritage. But Trump’s notoriety has awakened a figurative Paul Revere against himself. If he is elected president, the media, Congress, the judiciary, and the public would be eagle-eyed watchdogs to frustrate Trump’s wish-list to further pulverize the Constitution.
Ms. Clinton is a woman of “zeal, well meaning but without understanding.” She would be more dangerous to liberty and the Constitution in the White House than Trump would be. The first woman President would provoke less scrutiny and media or political opposition to her counter-constitutional convictions and actions because she is less overtly feral than Trump and presumptively less ruthless or megalomaniacal because she is female.
During her acceptance speech in Philadelphia, the Democratic presidential nominee warned: “Remember: Our Founders fought a Revolution and wrote a Constitution so America would never be a nation where one person had all the power.”
True enough. But coming from Ms. Clinton, the statement was as risible as would have been Napoleon during his 1804 self-coronation as Emperor warning the audience against the French Bourbon dynasty because it lusted for too much power.
Clinton’s words and public actions for more than two decades as First Lady, United States Senator, Secretary of State, author of Hard Choices, and presidential candidate betray a conception of the presidency as an elected monarchy endowed with more unchecked authority than was exerted by King George III. It was that power that provoked the American Revolution which she purportedly celebrated.
Ms. Clinton champions multi-trillion dollar unconstitutional presidential wars or other offensive uses of the military without congressional declarations or authorizations required under Article I, section 8, clause 11. Examples include Bosnia, Haiti, Kosovo, Somalia, Libya, Afghanistan, Yemen, Iraq, Syria, Pakistan, and against Al Qaeda and the Islamic State of Iraq and the Levant (ISIL) everywhere on the planet. During her 2008 presidential candidacy, Ms. Clinton declared that if she were elected president she would unilaterally “obliterate” 80 million Iranians if Iran attacked Israel. 
She salutes unconstitutional United States treaty commitments to fight wars on behalf of scores of other nations without required congressional declarations.
Speaking through Justice Hugo Black, the Supreme Court declared in Reid v. Covert (1956) that treaties cannot override constitutional prescriptions: “There is nothing in this language [of the Supremacy Clause] which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result.” Justice Black added that if unforeseen developments in weapons technology or otherwise argued in favor of constitutional change, the remedy would be a constitutional amendment, not constitutional lawlessness: “If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it prescribes.”
The Constitution’s authors would have impeached Ms. Clinton as Secretary of State and removed her from office for complicity in high crimes and misdemeanors against the Constitution, which Lord Gladstone acclaimed as “the most wonderful work ever struck off at a given time by the brain and purpose of man.”
President George Washington, who presided over the constitutional convention, repudiated Clinton’s claim of presidential power to wage war without congressional authorization. He elaborated: “The Constitution vests the power of declaring war with Congress. Therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure.” Every delegate present at the creation of the Constitution agreed.
Alexander Hamilton, who was a delegate to the constitutional convention, underscored in Federalist 69 that the Constitution had denied the President power of a monarch: “The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.”
James Madison, renowned as the father of the Constitution and Bill of Rights, secretary of state, and twice President of the United States, explained in a letter to Thomas Jefferson: “”The constitution supposes, what the History of all Govts demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl.”
James Wilson, delegate to the constitutional convention and future Justice of the United States Supreme Court, emphasized to the Pennsylvania ratification convention that neither the President alone or in conjunction with treaties ratified only by the Senate could embroil the nation in war: “This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our interest can draw us into war.”
United States Chief Justice John Marshall, who served as a delegate to the Virginia ratification convention, Member of Congress, and as secretary of state, lectured in Talbot v. Seeman (1801): “The whole powers of war being, by the constitution of the United States, vested in Congress, the acts of that body alone can be resorted to as guides to this inquiry.”
Nothing Ms. Clinton has ever written or spoken is worthy of a semicolon in the writings or speeches of these constitutional giants. They brought forth a Miracle at Philadelphia, in the words of Catherine Drinker Bowen. We know Clinton is a constitutional ignoramus from her own testimony and past lawyering. Among other things, her reading list excludes not only Aristotle, Plato, Thucydides, Pericles, Cicero, Plutarch, Marcus Aurelius, Dante, Machiavelli, Erasmus, Locke, Gibbon, Voltaire, Hume, and Rousseau, but also James Otis, Benjamin Franklin, Samuel Adams, John Adams, Adam Smith, the Federalist Papers, and George Washington’s Farewell Address.
Additionally, Ms. Clinton wrote a brief as a House Judiciary Committee lawyer arguing that President Richard Nixon should be denied legal counsel to oppose articles of impeachment. She ignored or concealed the then-recent precedent regarding Supreme Court Justice William O. Douglas, who was permitted a lawyer during the impeachment attempt against him in 1970. The Committee’s chief Republican counsel, Franklin Polk, recalled, “Of course the Republicans went nuts. But so did some of the Democrats—some of the most liberal Democrats.” Jerry Zeifman, general counsel and chief of staff to the Judiciary Committee and lifelong Democrat, called Ms. Clinton a “liar” and an “unethical, dishonest lawyer.” He fired Clinton from the staff when the Watergate probe concluded.
Ms. Clinton champions the use of executive agreements in lieu of treaties to circumvent the constitutional requirement of a two-thirds Senate majority for ratification. A recent example was the Joint Comprehensive Plan of Action to contain Iran’s nuclear ambitions. It was fashioned as an executive agreement because, as Secretary of State John Kerry told the House Judiciary Committee, “you can’t pass a treaty anymore.” In other words, if the President can’t get his way by complying with the Constitution, then the Constitution must be tortured to accommodate the President, i.e., to borrow from President Nixon to David Frost, “When the President does it, that means it is not illegal.”
In flagrant violation of constitutional due process, Ms. Clinton also supports limitless presidential power to play prosecutor, judge, jury, and executioner to kill American citizens anywhere on the planet not engaged in hostilities that the president decrees based on secret, unsubstantiated information threatens national security. In exercising this awesome power, according to Clinton, the president is not accountable to any other person, branch of government, or to the public. But Justice Black explained in Reid v. Covert:
“[W]e reject the idea that, when the United States acts against citizens abroad, it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land.”
Candidate Clinton supports presidential use of the military to spy on American citizens in the United States without warrants to gather foreign intelligence under Executive Order 12333 in violation of the Fourth Amendment and the Foreign Intelligence Surveillance Act. She supports presidential authority to classify congressional documents and to prohibit their publication. She supports presidential signing statements tantamount to unconstitutional line-item vetoes according to the Supreme Court’s decision in Clinton v. New York. She supports presidential power to spend in violation of limits established in appropriations bills. She supports presidential invocations of state secrets to frustrate congressional oversight or judicial review of government assassinations, kidnappings, or torture. She supports presidential power to refuse to take care that the laws be faithfully executed to advance a political agenda not shared by Congress.
If elected president, Donald Trump might wish to better the instruction of Hillary Clinton’s past constitutional vandalisms and imperial convictions, but his chances of success would be remote. The media, Congress, and the public would be on high alert. A President Clinton, on the other hand, would confront little resistance to her constitutional transgressions. She would be our first female commander in chief, and thus detractors would risk stigmatization as misogynists. Further, she would have her lawlessness accompanied by disarming and dulcet string instruments rather than brass or percussion associated with Trump.
We have already witnessed this phenomenon. President Barack Obama took the constitutional abuses of President George W. Bush to new levels while the media, Congress, and the public slumbered. Mr. Obama was our first black president, he speaks eloquently, and his style is non-gladiatorial. Mr. Bush had none of this armor.
Two potential calamities for the United States are looming on the horizon: wars with China or Russia over spheres of influence in Asia and Europe thousands of miles away from our borders and irrelevant to the Constitution’s foreign policy of invincible self-defense.
The candidate most likely to embroil the United States in unconstitutional presidential wars against either or both is Hillary Clinton.

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Original: Huffington Post