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.
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Original: Huffington Post
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