In 1787, amidst a sweltering Philadelphia summer and equally heated debates over the proposed constitution, James Madison warned his fellow delegates of the danger that giving the president the power to declare war would pose to liberty.  On June 29th of that year Madison took the floor and said, “Constant apprehension of war, has the…tendency to render the head too large for the body. A standing military force, with an overgrown Executive will not long be safe companions to liberty.”

With these words Madison stated what the founding generation knew: that military might is more often used for the aggrandizement of power of the few than the protection of liberties of the many.  For this reason the writers of the Constitution placed the ability to declare war, in Madison’s words, “fully and exclusively…in the legislature.”

This was a departure from the British system in which, as Alexander Hamilton noted, the king had the authority of “the declaring of war and the raising and the regulating of fleets and armies.” Hamilton wrote that, under the Constitution, these responsibilities would “appertain to the legislature.” In divesting the executive of the power to declare war, the framers were saying that giving this power to one person would be irresponsible and likely to result in oppression.

Madison said as much in a letter to Thomas Jefferson in which he wrote, “the History of all Governments demonstrates that the Executive is the branch of power most interested in war, and most prone to it. (The Constitution) has accordingly with studied care vested the question of war in the Legislature.”

Despite the wisdom and warnings of the founders, the second half of the 20th century witnessed a precipitous decline in this principle, a trend that has only escalated in the 21st century.  A prime example of this is the recent revelation that the “War on Terror” will likely continue for “at least another 10-20 years” according to Assistant Secretary of Defense Michael Sheehan.  He made this statement in front of the Senate Armed Forces committee recently, apparently unable to grasp the irony of dictating the terms of military conflict to members of the branch that is constitutionally-tasked with determining the parameters of war.

Implicit in Sheehan’s statement is the claim that the 2001 Authorization to Use Military Force (AUMF) gives the president the ability to identify and wage war against enemies that he and his advisers identify without seeking approval from Congress.  The AUMF was passed to allow President Bush to pursue the people responsible for the September 11, 2001 terror attacks, but has been used as justification for military actions against anyone virtually anywhere in the world.  This, like all other excuses to expand federal power, was not part of the Founders’ design.  Rob Natelson writes in The Original Constitution:

During the Founding Era, offensive wars were classified as either “just” or “unjust.” The Constitution’s grant of power to Congress to “declare War” authorized just offensive war, since by international law a declaration of war had to be based on just cause.  Absent was authority to undertake military operations for purely aggressive purposes.  Charles Pinckney reflected the sentiment at the federal convention: “Conquest or superiority among other powers is not or ought not ever be the object of a republican system.” Certainly, however, the government could take foreign territory as a customary incident of just war and the Treaty Power.

The Constitution’s general scheme was that Congress would “provide for” (in the future-looking 18th century sense) military operations, and the President would carry them out.  Only Congress could declare war – a step then seen as morally required of every nation embarking on hostilities, unless that nation already had been attacked.  To be sure, congressional support could be in the form of a statute or other measure not actually entitled “declaration of war.”  But the formal support of both houses of Congress was necessary; the President was not to make war on his responsibility alone.

While some people point to the AUMF as a constitutional exercise of congressional war powers, it was actually nothing of the sort.  This is because in passing the AUMF, Congress actually transferred their constitutional-power to the executive branch.  They delegated, to the President, the authority of identifying who could be attacked and for what reasons.  It reads, in part:

the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. [emphasis added]

As we have seen, the constitutional duty of determining the parameters of war were delegated to Congress. Nowhere does it say that if the Congress doesn’t want to be bothered with those duties, they can turn them over to another branch of government.  In addition, the new targets identified by Sheehan today (not to mention 10-20 years from now) presumably had no role in the 2001 terror attacks and are not covered by the 2001 AUMF in the first place.

Some will defend the president’s claim to war powers by pointing to the fact that he is the “commander-in-chief.”  While this is a constitutional role, it is confined to directing the armed forces within the parameters determined by Congress.  Alexander Hamilton confirmed this in Federalist 69 in which he stated that the president’s war powers amounted to “nothing more than the supreme command and direction of the military and naval forces.”  In The Original Constitution Natelson explains in more detail:

The first specifically executive presidential power found in the Constitution was to serve as “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”  As noted elsewhere, this power was constrained by congressional decision making.  It was Congress that could declare war, establish rules for the governance of the armed forces, set the terms under which the militia was to be called up, and “provide for organizing, arming, and disciplining, the Militia, and for government such Part of them as may be employed in the Service of the United State.”  Similarly, it was Congress, not the executive, that could establish the rules for governing federal military installations.

Other people say that the AUMF is valid because the War Powers Resolution of 1973 legally gave the president war making authority.  However, war powers expert Lou Fisher has explained that the War Powers Resolution was intended at the time to reduce the ability of a president to unilaterally take military action, not enhance it.  Coming towards the end of the Vietnam War, the resolution was an attempt by the legislative branch to assert some control over an executive that had been actively ignoring Congress in starting wars since the end of World War II.

The War Powers Resolution ended up being ineffective and confusing, and subsequent presidents have twisted its intention to claim even more autonomy in making these decisions.  What presidents and their lawyers won’t tell you is that even if the War Powers Resolution had somehow given the president more authority to make war, it would be an unconstitutional law.

Congress can pass all of the resolutions they want, but they cannot constitutionally abdicate the duties delegated to them in the Constitution, nor can they transfer them to another branch.  To do this would require an amendment to the Constitution.  This was as true in 1800 as it was in 1973, or 2001 and today.  It is Congress and Congress alone that has the duty of deciding when and where the country will be engaged militarily.  It is then the duty of the Executive to carry out that military engagement once the representatives of the People tell him he must do so.

At the Philadelphia convention, James Madison warned that “the means of defense against foreign danger have been always the instruments of tyranny at home.” Today we see this coming true, as the effects our country’s unconstitutional foreign policy bleed over into domestic issues.  The same powers used to justify the continual expansion of foreign wars have also been cited as support for the kidnapping and indefinite detention of American citizens and even for the authority of the president to drone bomb citizens who are suspected of being “dangerous.”  Due Process is no longer necessary, they argue, because the 2001 AUMF gives them the power to do whatever they determine is necessary in the war on terror.

Become a member and support the TAC!

Additionally, the scandals that have been revealed in recent weeks are really only an extension of the war powers problem.  After all, if the president doesn’t have to follow the Constitution in waging war, will he really feel compelled to respect the constitutionally-protected rights of his fellow citizens?  We see this truth and yet we still resist Madison’s warning.

Some people want to believe that we can fight for the Constitution in some areas while ignoring the founders’ vision in others, but this is impossible. Our forefathers understood that all our liberties are interdependent and that the centralization of power, especially in the hands of the executive, would endanger them all.

Politicians today are all too willing to let us forget this and they will happily seize as much power as we let them get away with.  If we want to live free of the oppression that past generations have warned us of, we need to reject the rhetoric of any president who claims the authority to make war on his own accord, and restrict liberties in the name of security.

Ben Lewis is a blogger for the Tenth Amendment Center. He also writes at thegreatfiction.com

Concordia res parvae crescunt
Small things grow great by concord...

Tenth Amendment Center




"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."



FOLLOW US

Get in Touch

3 + 3 =

MAIL:
PO BOX 13458
Los Angeles, CA 90013

PHONE:
213.935.0553