The intent here is not necessarily to give a word by word rebuttal of the Heritage report and Kyl’s speech, but instead – to address the overarching themes of his speech.

The Heritage report is prefaced with an abstract, featuring Thomas Jefferson’s declaration that “the price of liberty is eternal vigilance…” This idea, misapplied, forms the foundation of Kyl’s thesis, as vigilance, much like the word defense, is stretched to mean overseas intervention and military budgets of grotesque proportions.

A quick note on terminology is important here. Kyl states early in his talk that “liberals and progressives have never been supportive of the imperative to preserve American sovereignty…” While the term sovereignty is sometimes used in a foreign policy context to denote independence, Kyl seems to use it as a synonym for the word security. He goes on to list three ways in which American “sovereignty” is put at risk, and each relates not to independence from international governmental organizations, but to issues commonly related to national security. They are: cuts to so-called defense, opposition to foreign intervention, and privacy concerns (he didn’t give details on this last item, citing too little time).

Before moving into Kyl’s full argument, it is important to point out the false dichotomy he presents for the audience. There is no fundamental difference in the foreign policy ideologies of conservative and progressive politicians, as judged by their actions. Practically speaking, the Obama foreign policy is the same as Bush’s, which is the same as Clinton’s, which is just like that of Bush before him, and so on. To be sure, progressive politicians often speak in more humble terms, but their actions – escalating drone strikes, tripling troop levels in Afghanistan, ignoring due process, and launching new wars – belie this rhetoric.

In his lecture, Kyl does not aim his criticism at liberals, but instead directs it at other Republicans. He warns of a “creeping sentiment within certain Republican circles that America is indeed in a period of decline, mostly due to runaway spending, and that we cannot, therefore, afford the kind of military we had in the past and should disengage from many areas of the world.” This is to say that these Republicans are beginning to reject the neoconservative dogma that has dominated U.S. policy for decades. Kyl laments this – but it’s a good thing.

Intervention is not conservative and it is not consistent with “America’s founding principles,” nor is intervention conducive to a “strong national defense,” in its true sense. For the United States, the 20^th Century marked the rise of foreign intervention, and it was ushered in by progressives, notably Theodore Roosevelt and Woodrow Wilson, neither of whom was very conservative. Consider also that Franklin Roosevelt, Harry Truman, and Lyndon Johnson – all progressives – were proponents of foreign military involvement. By and large, the foreign policy of the U.S. during its first century was far more humble, mirroring the advice from the likes of Thomas Jefferson and George Washington.

Foreign entanglements, of the kind Kyl advocates, degrade the actual defense of the country in three ways. With troops stationed all over the planet they are more vulnerable to attack and, cannot adequately defend the U.S. The bombing of naval ships and foreign barracks provide examples of the former; and the fact that the U.S. military was better prepared to defend South Korea, Saudi Arabia, or Germany on 9/11 explains the latter. But the last, and most fundamental reason of all, is that intervention begets intervention by way of blowback. When the U.S. intervenes in the affairs of another country it necessarily creates enemies by choosing sides and killing civilians – even accidentally. Thus begins a cycle where the victims’ resentment builds, they retaliate, are attacked again, and still more seeds of blowback are sewn.

This is to say nothing of the economic price tag for what amounts to an empire. Kyl brings up the perennial argument over entitlements versus military spending, and suggests that cutting “defense” spending to accommodate entitlement funding would be “devastating to national security.” Reducing defense spending would likely be detrimental to security, but so much of the pentagon’s budget is dedicated not to actual defense, but instead is offensive in nature. Not a single one of the many wars now being fought is truly defensive, nor do the inhabitants of the targeted countries pose any credible threat to the U.S. mainland.

Kyl admits that “the fastest-growing part of the budget is in personnel costs, especially for health care.” This is all due to the very policies which he promotes. Personnel costs are higher and the price of healthcare continues to rise directly because the military is spread across the globe waging wars with no end in sight. Tens of thousands of wounded veterans, many of them burn victims and amputees, the hundreds of thousands suffering from traumatic brain injury, and the more than one hundred thousand on psychiatric drugs all cause spending to rise dramatically.

Like all good advocates of the state, Kyl uses the Orwellian term “interests” to supplement his argument. U.S. foreign policy has evolved significantly, perhaps beginning with Thomas Jefferson’s authorization to deploy troops to Tripoli in 1801. But with a military presence now in some 130 countries, virtually anything could be construed as part of “our national interest” and used to justify intervention. We must get away from this mentality – that everything that happens in the world deserves an immediate response from the U.S. military. It’s destructive, it’s unconstitutional, and it’s immoral.

But as things stand today, even ancillary issues are used to justify inserting the U.S. government into the affairs of other nations. Kyl laments the decision of several members of the Senate Foreign Relations Committee to reject a “resolution in support of the besieged Syrian people.” The resolution would have established as U.S. policy that “the legitimate aspirations of the Syrian people cannot be realized so long as Bashar al-Assad remains in power and that he must step aside.” The reason it was rejected by those Republicans, he surmises, was because such a policy “might ultimately lead to taking some kind of action.”

In fact, the resolution would have only codified existing U.S. policy, as the U.S. State Department had already promised to fund the rebellion and provide communications equipment as a month prior to the aforementioned resolution. And, it is widely understood that many of the previous military conflicts began with resolutions and so-called “non-lethal aid.” Rarely is an all-out military invasion something that happens overnight. In practically all cases it stems from another Orwellian term: “diplomacy.”

In the twisted definition now used by war Hawks, “diplomacy” is no longer negotiations and attempts at non-violent solutions. It has now morphed into an aggressive process that involves sanctions, threats, blockades, and the deployment of troops, naval ships, and aircraft to further isolate and coerce the targeted parties into compliance. That so many Republicans refused to participate in this endeavor is to be celebrated, as most often it is not the political and military leaders that suffer from such “diplomacy,” but the people of the country who have no say in the matter.

In his final segment, Kyl invokes Jesse Helms, urging Americans to “demonstrate not only to ourselves, but to the world that as a nation we stand by American values—freedom, rule of law, sovereignty—both at home and abroad.” If this advice is to be taken seriously, and not meant merely as a platitude, Americans should reject the foreign policy shared by neoconservatives and progressives now being applied. It is indeed anathema to freedom and the rule of law, as the Patriot Act (also known as the “repeal the 4^th Amendment act”), certain provisions in the NDAA, and everything the TSA has done in the last decade attest.

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In the end, Kyl asks: “How do we determine the appropriate American leadership role?” Of course a rudimentary approach involves looking to the constitution. That document is very clear on how war is to be declared. That is the legal means, but it’s vague as to why it may be declared, or the moral reason. For the answer to this we must look to the principle of non-aggression for moral guidance. Murray Rothbard defined the non-aggression principle thusly: “No one may threaten or commit violence (‘aggress’) against another man’s person or property. Violence may be employed only against the man who commits such violence; that is, only defensively against the aggressive violence of another.”  

In essence, this is the Golden Rule, and it should guide foreign policy; not some bastardized definition of “defense,” “interests,” or any other manipulated term to sterilize unjustified military force.

Up until about a month ago, a couple lived in our neighborhood, and I’m relatively certain they dealt drugs out of their home. We saw many tell-tale signs, including people coming and going at odd hours. They didn’t keep the house up very well, and some unsavory looking characters tended to hang around.  Then there was the occasional police activity. Needless to say, we didn’t consider those folks our best neighbors. And on more than one occasion, I considered the possibility that they could pose a danger to my property, or even my family. You just never know what might happen with those elements in the neighborhood.

So one night, I went over to the house and shot them both_.

Call it a preemptive strike.

OK, I didn’t really go next door and shoot them. I just broke all of the windows out of their house and firebombed their car as a warning.

OK, obviously I didn’t do that either, evidenced by fact that I’m not typing this with the shadow of bars cutting across my desk.

Now a question: does the fact that I never shot my neighbors, or destroyed their property, make me a hermit?

Clearly not.

In fact, I was relatively friendly with my neighbors, in a neighborly sort of way. I said hello when I walked by. I brought their puppy back when it got loose. I offered to help them when their car was broken down.  And despite my suspicions, I never personally experienced any problems relating to these particular neighbors. I maintained a vigilant, but friendly relationship with them, and we never had any issues. Basically, I treated them the same way I expected them to treat me.

Now let me be clear; had these folks threatened me in any way, I would have taken swift decisive action. If one of them attempted to break into my house uninvited, and threatened me or my family, I wouldn’t have hesitated to shoot to kill. But never encountering any actual threat, I pretty much left them alone. I didn’t bother them, and they apparently found no reason to bother me. I figured maintaining a level of friendliness couldn’t hurt either. I mean, if they viewed us as nice folks, it seemed less likely that they would bring any trouble to our doorstep.

Makes perfect sense, doesn’t it? Yet when applied at the foreign policy level, many Americans suddenly get all antsy and call it “isolationist.” Again, that’s a little  like calling me a hermit because I didn’t go blow up my neighbor’s car.  I did, in fact, interact with my neighbors. I just didn’t intervene unnecessarily in their affairs.

Non-interventionist seems a more appropriate term.

My relationship with these neighbors looked a lot like a small-scale version of the foreign policy advocated by Thomas Jefferson and George Washington.  In his farewell address, Washington advised, “Observe good faith and justice towards all nations; cultivate peace and harmony with all.”

In his 1801 inaugural address, Jefferson echoed the ideas of the first president.  “Peace, commerce, and honest friendship with all nations — entangling alliances with none.”

That was the approach I took toward my neighbors. Treat them as I hoped they would treat me. Interact to our mutual benefit when possible, and remain vigilant and prepared for any attack on my family or property.

Now, had I followed the current U.S. foreign policy model, I would have marked them as a threat and insisted that they quit selling drugs (even if I couldn’t really prove that they were). Then I would have blocked their driveway so they couldn’t leave to go to the grocery until they agreed to stop being “bad” neighbors. And if they still failed to conform to my standards, I would have enlisted the aid of some other neighbors and headed over to force them out physically – or perhaps just to lob a few molotov cocktails through their windows to encourage better behavior. And they would have resented me, probably retaliated, and we likely would have ended up in a full-fledged neighborhood war.

Non-intervention seems like a much better plan when you reduce it down to the personal level, doesn’t it?

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Sure, it isn’t a prefect analogy. Relations between nations encompass different dynamics and added complexities. But do the basic concepts differ that much? Does the Golden Rule – treat others as you’d like to be treated – suddenly become invalid when applied on a larger scale?

I don’t think so.

And these things matter. Because the interventionist foreign policy the United States currently follows spirals us deeper into debt and expands government power. And when government power expands, liberties and freedoms contract.  “Conservatives” who talk about shrinking government must come to grips with a basic reality. Smaller, less intrusive government will NEVER happen as long as the U.S. persists in playing world policeman and behaving like an imperial power.

James Madison understood the danger of this type of foreign policy and the accompanying never-ending state of war that goes along with it.

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. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could preserve its freedom in the midst of continual warfare.

Perhaps it’s time for the U.S. to think about how it can become a good neighbor instead of an aggressive busybody throwing its weight around. After all, a little Golden Rule goes a long way.

“Do unto others as you would have them do unto you.”

Apparently Rick Santorum is cut from the same fabric as Barack Obama when it comes to congressional declarations of war, as required by the Constitution.

On Jan. 9, Republican presidential hopeful Rick Santorum spoke outside MaryAnn’s Café in Manchester, N.H. Once inside, the former Pennsylvania senator told one customer that he would use a strategic military strike against Iran, claiming that this strike would not be considered an act of war. When the customer asked Santorum if he would ask for authorization from Congress to initiate a military strike, Santorum said he would consult Congress, but didn’t need to ask permission because Obama didn’t need permission to strike Libya.

Santorum engages in some “fuzzy math.” He apparently thinks two wrongs somehow make a right. Santorum sounds more like a third-grader justifying his position to little Jonnie regarding the rules in the playground. Only this is about American soldiers’ lives and Americas’ future. And the last time we checked a “strategic military strike” was an act of war.

Article I, section 8, clause 11 of the United States Constitution says, “The Congress shall have power…To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Nothing in our Constitution gives the president the power to unilaterally order a strategic military strike the way we’ve seen in recent years.

A good offense might make a good defense, but the Constitution is the Constitution, and a good offense requires a declaration of war from Congress.

The War Powers Act of 1973 states in section 2, paragraph (a), “It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.” Paragraph (c) states; “The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

The first question that immediately comes to mind here is: if the War Powers Act was really passed with the intent stated – “It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States” – then why even bother with the Act? Just follow the Constitution. If The War Powers Act is the document that Obama and Santorum argue justifies their actions, then why do they violate, or in Santorums’ case advocate violating, paragraph (c) numbers one and three?

Obama defiantly violated the Constitution when he initiated offensive military action against Libya without a declaration of war. Santorum clearly intends to follow the same path with Iran. After all, it must be OK. Obama did it. This raises the question: what difference exists between Obama and Santorum.

Answer: none.

Two peas in a war  pod.

A look at Obamas’ and Santorums’ voting records reveals a fundamental similarity between these two supposed antagonists. They both repeatedly violated the Constitution.

The “fourth branch of government,” aka the establishment media (in this case the NY Times and here and here) justifies their actions, declaring that “more power has lodged in the white house than on capitol Hill.” Funny thing, this was clearly not the intention of the framers.

James Madison expressed his distrust of the executive branch, especially in the realm of war powers, many times. In a letter to Thomas Jefferson, Madison wrote.

“The constitution supposes, what the History of all Governments demonstrates, that the Executive 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 Legislature.”

As with all unconstitutional acts, executive orders and provisions buried in lengthy legislation, designed to circumvent the Constitution, sponsors and supporters of these bills seek a ruling in their favor from the Supreme Court of the United States to justify their position. Further, when the Supreme Court rules in favor of these unconstitutional Acts, all three branches of government are in violation of our Constitution.

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So much for balance of power.

Pundits constantly play up the supposed conflict between the two parties, portraying them as polar opposites. But when it comes to violating the Constitutional delegation of war powers, they generally draw up their strategy from the same playbook. Obama and Santorum illustrate this reality.

Two peas in a war pod.

Doug Berge [send him email] is the state chapter coordinator for the Rhode Island Tenth Amendment Center.

NOTE: Recorded at the close of Tenther Radio Episode 24, the following is a special message from Michael Boldin about next week’s show on Pearl Harbor Day, covering war powers and the Constitution..
The show airs live online every Wednesday at 5pm Pacific Time here. Find us on iTunes at this link.

I want to close the show tonight by – well – inviting you to tune in to next week’s show, at 5pm Pacific time on Wednesday December 7, 2011.

This is not your normal “tune in next week…” message. December 7 being the anniversary of the Pearl Harbor tragedy in 1941, we’re going to spend most of our time on something that’s not discussed enough in constitutional circles – war powers and the constitution.

We’ll be joined for nearly 40 minutes by someone who is probably the nation’s leading expert on war powers, Dr. Louis Fisher – who spent four decades working at the Library of Congress as Senior Specialist in Separation of Powers, and is currently Scholar in Residence at the Constitution Project.

Dr. Fisher has been invited to testify before Congress about 50 times on such issues as war powers, state secrets privilege, NSA surveillance, CIA whistleblowing, covert spending, presidential impoundment powers, and plenty more. When it comes to an understanding from the perspective of the founders – he’s got few equals.

This week, Tenth Amendment Center national communications director, Mike Maharrey, started this conversation with an extremely important article entitled “I love George Washington. Except for his Foreign Policy.” In it, he points out what I consider to be a troubling, and very glaring inconsistency in the views of many self-professed supporters of the Founders’ Constitution today – their views on the constitution and foreign policy.

Mike tells a personal story of his own views on foreign policy. He writes:

“Over the last year or so, I’ve been struggling to redefine my views on foreign policy. As a former neo-conservative, I enthusiastically embraced the invasion of Iraq in 2003. I readily accepted the notion that military force serves as a legitimate tool for nation-building.”

He continues…

But it doesn’t take a doctorate in foreign relations to understand that U.S. policy has forged a tangled mess of contradictory alliances and obligations, and created a much more dangerous world. I’ve gradually come to accept that military intervention in foreign affairs typically causes more damage than good and that the whole concept rests on morally dubious grounds. Who am I to point a gun at another man’s head and demand he practice “democracy”?

Mike goes on to explain how he used to, like many others still do today, consider such foreign policy views, which are most commonly put forth by Ron Paul, to be quackery. But, in his study of the founding generation, he recognized that such views line up pretty closely with the stated positions of a president that’s actually revered by most Americans – George Washington.

Here’s a little of what Washington had to say about foreign policy in his 1796 farewell speech:

“The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible.”

He continued…

“It is our true policy to steer clear of permanent alliances with any portion of the foreign world…”

Now, Washington, like all other humans, certainly had his flaws, and had flaws as a president too. But, how often do you hear people admonishing Washington’s foreign policy views? I never do.

So, while we hear many people today – especially conservatives – say that they really like the constitutional viewpoints of a person like Ron Paul, they’ll commonly turn around and say, well, “except for his foreign policy.” But the fact of the matter is this – virtually all of the founders held this kind of foreign policy viewpoint, and because of that alone, it should never be called quackery…unless you consider the founding fathers a bunch of quacks.

Thomas Jefferson summed it up perfectly in his 1801 inaugural address: “Peace, commerce, and honest friendship with all nations — entangling alliances with none.”

James Madison, father of the constitution, put is this way – “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.”

Jefferson, Madison, Washington – they strongly opposed foreign policy interventionism. They all opposed wars that did anything but repel invasions here in America, and they also advised against the kind of favored-nation status that is used so often in American foreign policy today.. That should be convincing enough, but they were far from alone, and this was the highly prevalent view of foreign policy from the founding fathers.

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Do conservatives today – who often say that they want to return to the constitution, to the vision of the founders…do they really mean it? Or, do they actually mean – “We need to get back to what the founders set up – domestically only.” Well maybe it’s just that the government-run school system in this country has done its job – hiding the true history and principles that made up the American Revolution. That makes sense to me, because I can’t think of any other reason why people who profess to revere the founders so much would find their foreign policy views to be…well, so foreign.

So please tune in next week – as we’ll dig far deeper into not only these personal policy views of the founders, but just how they intended our constitutional framework to be set up in regards to war and foreign policy. The future of liberty in this country just may depend on us learning about it.

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 Congressauthority 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.

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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.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See http://constitution.i2i.org/about/.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute. Visit his blog there at http://constitution.i2i.org/

With military action taking place in Libya right now, the essential question must be asked: Is it even Constitutional? For those of you who don’t want to read more than a sentence or two, here’s the short answer. Absolutely not.

DELEGATED POWERS

The ninth and tenth amendments, while they didn’t add anything new, defined the Constitution. In short, they tell us that the federal government is only authorized to exercise those powers delegated to it in the Constitution…and nothing more. Everything else is either prohibited or retained by the states or people themselves.

What does this have to do with Libya? Well, whenever the federal government does anything, the first question should always be, “where in the Constitution is the authority to do this?” What follows here is an answer regarding American bombs being dropped on Libya.

WHO DECIDES?

Ever since the Korean War, Article II, Section 2 of the Constitution has been regularly cited as justification for the President to act with a seemingly free reign in the realm of foreign policy – including the initiation of foreign wars. But, it is Article I, Section 8 of the Constitution that lists the power to declare war, and this power is placed solely in the hands of Congress.

Article II, Section 2, on the other hand, refers to the President as the “commander-in-chief of the army and navy of the United States.” What the founders meant by this clause was that once war was declared, it would then be the responsibility of the President, as the commander-in-chief, to direct the war.

Alexander Hamilton clarified this when he said that the President, while lacking the power to declare war, would have “the direction of war when authorized.”

Thomas Jefferson reaffirmed this quite eloquently when, in 1801, he said that, as President, he was “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.”

In Federalist #69, Alexander Hamilton explained that the President’s 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 warned us that the power of declaring war must be kept away from the executive branch when he wrote to Thomas 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.”

WORDS HAVE MEANING

If, like any legal document, the words of the Constitution mean today just what they meant the moment it was signed, we must first look for the 18th Century meaning of the words used. Here’s a few common 18th-century definitions of the important words:

War: The exercise of violence against withstanders under a foreign command.
Declare: Expressing something before it is promised, decreed, or acted upon.
Invade: To attack a country; to make a hostile entrance

What does this all mean? Unless the country is being invaded, if congress does not declare war against another country, the president is constitutionally barred from waging it, no matter how much he desires to do so. Pre-emptive strikes and undeclared offensive military expeditions are not powers delegated to the federal government in the Constitution, and are, therefore, unlawful.

HOW IT APPLIES TODAY

Here’s the quick overview of how this all plays out:

• In Constitutional terms, the United States is currently at war with Libya.
• Libya is not invading the United States, nor has it threatened to do so.
• Congress has not declared war. Barack Obama did.

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Some would claim, and news articles are already reporting on it, that the 1973 war powers resolution authorizes the President to start a war as long as it’s reported to Congress within 48 hours. Then, Congress would have 60 days to authorize the action, or extend it.

The only question you should have to ask for this would be – “where in the Constitution is congress given the authority to change the constitution by resolution?”

It doesn’t. And that resolution, in and of itself, is a Constitutional violation. More on that in a future article, of course.

James Madison had something to say about such a plan when he wrote:

“The executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.” [emphasis added]

War Powers resolution or no war powers resolution – without a Congressional declaration, the president is not authorized to start an offensive military campaign. Period.

The bottom line? By using US Military to begin hostilities with a foreign nation without a Congressional declaration of war, Barack Obama has committed a serious violation of the Constitution. While he certainly is not the first to do so in regards to war powers, it’s high time that he becomes the last.

As I’ve grown older, learned more, and experience takes a toll on my philosophy, I have come to trust government less and less. I’m distrustful of all government, but particularly, I’m distrustful of the federal government of the United States because it is the most difficult to control. The government of the United States has become the distant, detached, self-important entity that the founders had hoped to avoid when writing the Constitution. Today, the government is a being in and of itself – in national security planning, steps are taken to ensure that the government is preserved. Elected officials and unelected bureaucrats take the position that it’s their job to do what they think is in America’s best interest whether the American people agree or not.

It is this type of behavior on the part of government that has led us into fighting two wars simultaneously that drain our national resources. It was this philosophy of governance that created the financial environment that led to our current economic crisis. In the current administration, nothing has changed, really. The political goals may be different, but the underlying philosophy of government remains – a philosophy that holds that government can ignore the electorate and disregard the Constitution if they feel doing so is “in the best interest of America.”

I couldn’t disagree more.

It was this recognition, that government is not really what it pretends to be, that led me to self-identify as a libertarian, which eventually led to my involvement with the Tenth Amendment Center. And it is this same realization that causes me to applaud WikiLeaks and the sunshine it has brought to American government.

I grew up Christian with a very specific moral code which had very specific standards of behavior. Of course, being human and a child, I didn’t feel the need to always obey our standards of behavior. Sometimes, (okay, a lot of times), what I wanted to do didn’t align with what I was supposed to do. So my parents and religious leaders told me a story about how I was always being watched by God and I had a guardian angel following me around with a book. And in that book, my angel wrote down all the bad things and good things that I did, and it was up to me to make sure that there were more good things in that book than bad, because one day I would be judged and the contents of that book, my life’s record, would be laid bare for all to see.

The government of the United States was instituted by men who held government to a certain standard of behavior. It was their belief that government should be instituted to protect the liberty of individuals, but it was also their realization that all governments are a monopoly of force and will tend to disregard liberty in pursuit of their own ends. Sometimes, (okay, a lot of times), what government wants to do isn’t what government is supposed to do. Realizing this, our founders protected the freedoms of speech and press believing that an interested, knowledgeable populous would follow the goings-on in government, writing it all down with the intention that government’s record would be laid bare for all to see, and judge.

Sometimes, the mainstream press does its job well calling government to account for its misdeeds, misleads, or outright lies. Other times, the press itself seems to be fooled by, or in collusion with, a government that just does what it wants. This is why movements like the Tenth Amendment Center rise up and become successful – because there will always be a group of people who see the inherent evil in centralized government and do all they can to keep it in check. And because I am one of those people, a Tenther, a Constitutionalist, and a lover of liberty, I cannot help but support the mission of WikiLeaks, which, according to their website is to foster and promote the freedom of information in an effort to keep governments open and transparent.

On the page dedicated to WikiLeaks’ most recent document dump of American diplomatic cables, I find this quote:

This document release reveals the contradictions between the US’ public persona and what it says behind closed doors, and shows that if citizens in a democracy want their governments to reflect their wishes, they should ask to see what’s going on behind the scenes.

My sentiments exactly.

I’ve realized for some time now that the public persona of the United States is nothing like the closed door policy discussions. Our government talks openly of freedom, democracy and republican principles, but in reality, the United States is the largest sponsor of totalitarian regimes in the world. Our politicians pay homage to the Constitution and Bill of Rights, but ignore them when they pass legislation designed to infringe on the principles and protected rights in those documents. That there are others out there, like WikiLeaks, who see the same thing as me, keeps hope alive.

WikiLeaks can be a powerful tool for the Tenth Amendment movement. It gives us undeniable sources showing the hypocrisy of our federal government and provides impetus for local activism designed to rein in a federal leviathan that’s out of control. We, along with WikiLeaks and other pro-transparency movements, can be the federal government’s guardian angel – God knows it needs one – because it just keeps on doing whatever it wants.

Roger Prather [send him email] is the Communications Coordinator for the Massachusetts Tenth Amendment Center.

“The executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.”
- James Madison

A speech before the US House of Representatives on July 1, 2010

In January 1991, we went to war in the Middle East against Saddam Hussein, Iraq’s dictator who was our ally during the Iran-Iraq war. A border dispute between Kuwait and Iraq broke out after our State Department gave a green light for Hussein’s invasion.

After Iraq’s successful invasion of Kuwait we reacted with gusto and have been militarily involved in the entire region, six thousand miles from our shores, ever since. This has included Iraq, Afghanistan, Pakistan, Yemen, and Somalia. After twenty years of killing and a couple trillion dollars wasted, not only does the fighting continue with no end in sight, but our leaders threaten to spread our bombs of benevolence on Iran.

For most Americans, we are at war — at war against a tactic called terrorism, not a country.

This allows our military to go any place in the world without limits as to time or place.

But how can we be at war? Congress has not declared war as required by the Constitution.

That is true, but our presidents have and Congress and the people have not objected. Congress obediently provides all the money requested for the “war.”

People are dying, bombs are dropped, our soldiers are shot at and killed.

Our soldiers wear uniforms; our enemies do not. They are not part of any government. They have no planes, no tanks, no ships, no missiles, and no modern technology.

What kind of a war is this anyway? If it really is one. If it was a real war we would have won it by now.

Our stated goal since 9/11 has been to destroy al Qaeda. Was al Qaeda in Iraq? Not under Saddam Hussein. Our leaders lied us into invading Iraq and deceived us into occupying Afghanistan.

There’s still really no al Qaeda in Iraq and only a hundred or so in Afghanistan, yet there is no end in sight to the “war.” Could there have been other reasons for this war that is not a war?

Military victory in Afghanistan is illusive. Does anyone really know whom we are fighting and why?

Why has the war not ended? Nine years and it continues to spread. Some claim it is to keep America safe, that our soldiers are fighting and dying for our freedom, defending our Constitution. Are we being lied to in order to keep us in this spreading war, just as we were lied to in the 1960′s to keep us in Vietnam?

We own the Iraq government as we do Afghanistan’s. In Afghanistan we are fighting the Taliban-those dangerous people with guns, defending their homeland.

Once they were called the Mujahideen, our old allies, along with Osama bin Laden, in the fight to oust the Soviets from Afghanistan in the 1980′s.

In that effort our CIA funded radical jihad against those nasty foreign occupiers-the Russians.

What gratitude? Those same people now resent our benevolent occupation-with a little violence thrown in.

The resistance to our presence grows as our perseverance wanes.

Our people are waking up but our officials refuse to recognize the longer we stay the greater is the support for those dedicated to the principle that Afghanistan is for Afghans, who resent all foreign occupation.

The harder we fight a war that is not a war, the weaker we get and the stronger becomes our enemy.

When an enemy without weapons can resist an army of great strength, the most powerful of all history, one should ask, who has the moral high ground?

Military failure in Afghanistan is to be our destiny. Changing generals without changing our policies or our policy makers perpetuates our agony and delays the inevitable.

This is not a war that our generals have been trained for. Nation building, police work, social engineering is never a job for foreign occupiers and never an appropriate job for soldiers trained to win wars.

A military victory is no longer even a stated goal of our military leaders or our politicians, as they know that type of victory is impossible.

The sad story is:

This war is against ourselves, our values, our Constitution, our financial well being and common sense, and at the rate we are going, it is going to end badly. What we need are honest leaders with character and a new foreign policy.

Ron Paul is a Republican member of Congress from Texas

*******

When President Obama announced a new $50 billion stimulus plan Labor Day weekend, conservatives scoffed — and rightfully so.

Who does this guy think he’s fooling? After the $700 billion TARP bailout, the auto manufacturer bailout, and an $800 billion stimulus, does this president actually think a measly $50 billion is going to successfully turn around an economy where greater sums have failed? But the president and his party have a ready reply for such naysayers: “Imagine if we did nothing?” This open-ended question will undoubtedly continue to provide cover for stimulus-loving liberals, no matter how often conservatives insist that their government intervention simply doesn’t work.

When my commentary on the ninth anniversary of 9/11 was broadcast on WTMA, a number of callers were angry I suggested that our policy of foreign intervention does not work. No matter how much I explained how our incompetent government does more damage than good abroad, my critics sounded pretty much like Obama: “But Jack, imagine if we did nothing?”

So yes, let’s imagine these scenarios. What if the Federal Reserve had never artificially lowered interest rates and created a housing bubble? What if the Fed had not printed literally countless dollars out of thin air, further weakening our currency? What if we never had borrowed money from China to pay for bailouts and stimulus? Would we be worse off financially than if the government had never done any of these things? Any conservative worth his salt recognizes the absurdity of these arguments and also recognizes that such fear-mongering is typically used as an excuse for more statism.

But such fear-mongering is also used by those on the Right to support our equally statist foreign policy, particularly when they portray radical Islam as somehow a threat on par with the Soviet Union or talk radio’s favorite comparison, the Nazis. Although I agreed with some callers that there probably is a uniquely medieval aspect to Islam not present or as prominent in other major religions, I asked, “Why did Americans not have to worry about Islamic terrorism in the 1940s, ’50s, and ’60s? What has changed? Islam? Or our foreign policy?” The question answers itself in the sense that we don’t have to “imagine” what might happen if we “did nothing” in the Middle East today, precisely because when we did little to nothing decades ago, there was no terrorist threat to the United States.

A few of my critics immediately and predictably called me an “isolationist” in much the same way Obama now chides conservative Republicans as belonging to the “Party of No” for opposing every new government intervention the Democrats come up with. Government must do something, you see, and no doubt Obama would readily paint anti-stimulus Republicans as some sort of domestic, economic “isolationists” if such jargon came into fashion. Luckily for conservative hawks, such jargon is well-established but is no less absurd. Compared to how engaged we are today in the Middle East, did the U.S. have an “isolationist” policy toward that region in the first half of the 20th century? Is Switzerland asking for trouble due to their long history of neutrality or isolationism? Are 99 percent of nations “isolationist” for not mimicking the foreign policy of the U.S., arguably the most ambitious imperial power in world history?

When conservatives suggest that we should apply free market solutions to financial crises, liberals dismiss those who make such proposals as libertarian wackos who don’t realize that it was the lack of government regulation that led to such problems in the first place. This is similar to the claim many conservatives make concerning foreign policy: that if the U.S. does not drop bombs on certain Third World countries indefinitely, station troops in some Mideast sand pit for decades on end, and regulate the world stage, our refusal to do all this will somehow put Americans at risk.

It’s time for both sides to start imagining what they fear most: What if we did nothing? What if our federal government didn’t spend or borrow beyond its means or constantly meddle domestically? What if our federal government did not constantly intervene overseas, spending and borrowing well beyond its means to do so?

We used to have a Constitution which restricted our federal government from doing such damage, and if we could only return to that charter, this entire column would be a moot point. Yet the prevailing belief that government must always do something both domestically and abroad will not be discarded by the Left or Right anytime soon. Both sides have an enduring attachment to statism, born not only of their particular ideologies but political identities, and they will continue to create new problems using government intervention in the name of solving old ones, blind to the fact that the larger mess is almost entirely of their own making.

The “Southern Avenger” Jack Hunter is a conservative commentator (WTMA 1250 AM talk radio) and columnist (Charleston City Paper) living in Charleston, South Carolina. See his blog.

Copyright 2010, Charleston City Paper

Is the Immigration Bill Unconstitutional?

Many “progressive” opponents of the Arizona immigration law are arguing that the law is unconstitutional because foreign affairs is exclusively the province of the federal government.

That foreign affairs is exclusively the province of the federal government is commonly asserted. But it is a myth – at least if one respects the Constitution’s text and original understanding.

Before explaining why, I have to say that a claim that the Constitution reserves powers exclusively for one level of government is an unusual argument for “progressives” to make. In general, of course, the most vocal “progressives” could care less about what responsibilities the Constitution assigns to what levels of government.

It’s not just that they favor the federal government invading the sphere that the Constitution reserves to the states. It’s also that they have repeatedly urged state and local governments to invade the supposedly exclusive sphere of the federal government. Remember all those campaigns for state and local governments to adopt nuclear-freeze resolutions, South Africa boycotts, and nuclear-free zones?

Anyway, let’s move beyond the limitless subject of political hypocrisy to describe just how the Constitution does distribute foreign affairs authority.

First, the Constitution gives the federal government supreme authority over foreign policy. Congress and the President can pre-empt an issue by exercising one or more of their enumerated powers. If Congress dislikes a state action in that realm, Congress can pass a law overriding it.

If, however, Congress has not acted or acted incompletely, the states have certain reserved powers to act on their own. In other words, the Constitution acknowledges concurrent, although subordinate, state authority over foreign affairs – including immigration.

How do we know this? From both the constitutional text and from the record left by those who debated and ratified the Constitution. Here is the evidence:

* Instead of simply stating that states have no foreign affairs powers, the Constitution (Article I, Section 10) only lists a few specific foreign affairs powers denied to the states. For example, a state may not make a treaty or enter into a confederation with a foreign government.

* Under a rule of interpretation widely recognized by the Founders, the Constitution’s listing implies that all foreign affairs powers not denied remain with the states (subject to veto by federal law or treaty).

* In addition to prohibiting the states from exercising a few foreign affairs powers, the Constitution lists a few others subject to congressional pre-approval – such as the power to make non-treaty compacts with foreign governments. If foreign policy power were exclusively in the federal government, the Constitution would not recognize that states had any ability to enter compacts with foreign governments.

* Nowhere does the Constitution include language such as “all state authority over foreign relations is hereby abolished.” On the contrary, at several points the document assumes some state authority over the subject is retained. For example, the Constitution explicitly acknowledges state power to tax foreign goods to fund inspection programs. It elsewhere assumes that if Congress chooses not to adopt a “uniform Rule of Naturalization,” the states may adopt their own laws.

* The historical record confirms what the text suggests. For example, the records of the Constitutional Convention tell us that the delegates considered whether states could impose embargoes on foreign goods, and deliberately decided to leave that power with the states. A committee of the First Federal Congress recognized this power also.

The doubt about the judicial fate of Arizona’s law arises only because of the Supreme Court’s occasional practice of striking down state laws that Congress has decided to leave alone. This occurs primarily in the area of commerce and foreign affairs, and appears to be driven in part by the historically-false claim that federal power in those areas is exclusive.

On the other hand, the Supreme Court also sometimes lets such enactments stand. So what the Court would do with the Arizona law is anybody’s guess.

Rob Natelson is Professor of Constitutional Law at the University of Montana and a nationally-known expert on the American Founding. After a quarter of a century in academia, he is leaving this year to fight full-time for freedom as a Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Golden, Colorado. His constitutional publications can be found at www.umt.edu/law/faculty/natelson.htm. The views expressed here are his own, not to be attributed to any organization or institution.