by Rob Natelson
You can sympathize with the humanitarian motives of our Libyan intervention while still doubting its constitutionality.
The Constitution prescribes the rules about how the United States is to enter a war, and the Obama administration has violated those rules.
The administration argues that the hostilities, because limited, do not rise to the level of “war,” as the Constitution uses that word. But that position is almost surely wrong: Founding-Era dictionaries and other sources, both legal and lay, tell us that when the Constitution was approved, “war” consisted of any hostilities initiated by a sovereign over opposition. A very typical dictionary definition was, “the exercise of violence under sovereign command against such as oppose.” (Barlow, 1772-73). I have found no suggestion in any contemporaneous source that operations of the kind the U.S. is conducting were anything but “war.”
The Founders’ favorite authority on international law, Vattel, divided wars into three principal categories: defensive wars, offensive just wars, and offensive unjust wars. A nation fought a defensive war when it responded to an invasion. It fought a just offensive war when it responded to an infringement of its rights short of invasion. It fought an unjust offensive war if it attacked another country even though that other country had not infringed its rights. Examples of unjust offensive wars were those fought for conquest or to limit an innocent neighbor’s power.
A defensive war did not require a declaration. A just offensive war did require one, although it might be called something other than “declaration of war.” The declaration triggered certain consequences under international law, but Vattel says its principal purpose was to give the other country a last chance to correct the injury it was inflicting. Because unjust wars were those launched by a country that had not suffered legal injury, it follows that “declarations of war” issued by an aggressor were at least partially defective.
Now: The federal government has only those powers the Constitution grants it. The Constitution grants the federal government authority to begin and wage a defensive war: “The United States shall . . . protect each [state] against Invasion” (IV-4). (Protection of U.S. territories is impliedly authorized as well: IV-3-2) But the Constitution grants only Congress authority to initiate a just offensive war – that is, an American attack to vindicate our legitimate rights: “The Congress shall have Power . . . To declare War.” (I-8-11). It can be inferred from the document that the government has no constitutional power to wage an unjust war.
The Constitution entrusts Congress with creating the means for waging war: “To raise and support Armies” (I-8-12), “To provide and maintain a Navy” (I-8-13), and “To provide for calling forth the Militia to . . . repel Invasions” (I-8-15). It grants the President authority to serve as Commander-in-Chief (II-2-1). Under the latter provision, the President can oppose an invader (engage in defensive war) without prior congressional authorization, since “The United States [not just Congress] shall . . . protect each [state] against Invasion” (IV-4). But there is no enumerated power authorizing the President to launch an offensive war without a congressional resolution that qualifies in substance as a declaration.
Many quotations from key Founders show that is was their understanding as well. For example, James Wilson, one of the greatest Founders, told the Pennsylvania ratifying 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. . . .”
(This quote is only one of several.)
Nevertheless, many well-meaning people have sought to find a presidential power to wage undeclared war. In part they rely on practice arising decades, even centuries, after the Founding. As I point out in The Original Constitution: What It Actually Said and Meant,such evidence is too remote to be a reliable source of original understanding. The fact that the President sometimes has acted unconstitutionally does not render those acts constitutional.
The most sophisticated presidential defenders make the following argument:
* What determines constitutional force is not how the ratifiers understood the document, but its objective “original public meaning” to the larger public;
* the Constitution grants the President the “executive Power” (II-1-1);
* although the Constitution does not mention undeclared wars, based on the practice of the British Crown the President’s “executive Power” included authority to initiate them.
Unfortunately for this argument, recent scholarship has largely destroyed the view that the phrase “the executive Power” conferred the King of England’s power on the President. The most comprehensive study of the subject is Curtis A. Bradley & Martin S. Flaherty’s article,Executive Power Essentialism and Foreign Affairs, 102 Mich. L. Rev. 545 (2004).
In addition,my own published investigation of Founding-Era legal drafting practices discovered that those practices were completely inconsistent with the conclusion that the phrase “executive Power” conferred any authority.
As for the claim that the Constitution’s “original public meaning” trumps what the ratifiers understood, to my knowledge no one has contested the conclusions of my excruciatingly-footnoted 2007 study of Founding-Era interpretative methods. It concluded that the Constitution was to be interpreted by the ratifiers’ understanding, with “original public meaning” being consulted only when a coherent understanding could not be found. In the case of the war power, though, the ratifiers’ understanding is pretty clear.
Although the Obama administration’s Libya operations probably qualify as a constitutionally-authorized “just war” (because it is designed to assist an oppressed people who have risen in rebellion), launching those operations without prior congressional consent violated the Constitution.