5 Myths About The Constitution’s War Powers Propagated By The ‘New York Times’ And The ‘Washington Post’
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.
Follow Bruce Fein on Twitter: www.twitter.com/brucefeinesq
Original: Huffington Post