Is the Iraq War Constitutional?
I promised Mac in another thread to provide justification for my claim that the Iraq War is unconstitutional. More than a few others have expressed similar doubts., so I am sure others will find this interesting, as well. However, my post on the subject is too long to post here, so I will simply direct those interested to my personal blog. Here’s a teaser:
…In the ongoing debate over the present Iraq War, I have stood opposed since before we first attacked on March 19, 2003. I opposed the war on prudential grounds, believing it to be both unwarranted and counterproductive to the War on Terror. And I opposed it because it is unconstitutional, lacking the congressional Declaration of War required by the Constitution for sustained offensive actions against another sovereign nation. It is this last objection that supporters of the war seem to resent the most. To them, this is all semantics, as they readily point to the resolution Congress passed authorizing the use of force in Iraq.
But is it just semantics?
READ THE POST
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(Eric Langborgh is the author of Borg Blog and the director of development for the American Civil Rights Union (ACRU). His views and comments expressed at the Control Congress blog are his own, and do not necessarily represent those of the ACRU, unless so specified.)
Interesting post Eric, but I still think you are picking nits with semantics.
And since we are going to pick nits, let me begin by noting the H.J. Res denotes a resolution of significant importance because it is a JOINT effort as opposed to every other one you reference which are known as ’simple resolutions’ defined as — simple resolution – Designated “S. Res.,” simple resolutions are used to express nonbinding positions of the Senate or to deal with the Senate’s internal affairs, such as the creation of a special committee. They do not require action by the House of Representatives.
Joint resolutions defined as — joint resolution – A legislative measure, designated “S (or H). J. Res.” and numbered consecutively upon introduction, which requires the approval of both chambers and, with one exception, is submitted (just as a bill) to the President for possible signature into law. The one exception is that joint resolutions (and not bills) are used to propose constitutional amendments. These resolutions require a two-thirds affirmative vote in each house but are not submitted to the President; they become effective when ratified by three-quarters of the States.
If you search thomas.gov, you will notice the binding importance of joint vs. simple resolutions.
Thus while you may declare the war in Iraq as unconsitutional if you like, but it is a war authorized by Congress under the War Powers Act (Joint Resolution) of 1973 (http://tinyurl.com/2tyzj) which clearly states: “Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces.”
According to the War Powers Resolution of 1973, this is absolutely a constitutional war as authorized by a JOINT resolution of both houses of Congress.
Eric
Your points are well taken, but there are holes in your arguement.
1. The Joint Resolution I mentioned in the other thread became law. It is the expressed duty of Congress to make law. They did just that.
2. If we follow your reasoning, Korea, Viet Nam, Kuwait, Bosnia and every other military action we’ve taken since 1945 should be considered illegal and clearly, they’re not.
3. Your point about the United Nations is a good one. However, I’d argue that’s one of the reasons there was no declaration of war. It was a military action determined necessary by the international community, not just the U.S.
While I agree that our Constitution should rule our actions, I would argue once more that the Constitution allows the action because the resolution became public law.
4. I agree that declaring war would have been more “tidy” in Constitutional terms, but either way, the President still commands the armed forces with the approval of the congress.
On a personal note, I think the idea of anybody actually declaring war is something of a hot potato. It’s the sort of thing weak-kneed politicians shy away from because of the political fallout that inevitably follows. The “Greatest Generation” had no problem with things like this, but since the 1960s, that’s all changed.
I don’t know how old you are, but I can tell you first-hand that the 1960s changed a whole lot about our Country. Some things good, many, many more, not so good. I actually watched AMERICAN CITIZENS spit on returning Viet Nam vaterans simply because they had the courage of their convictions and did what the Nation asked them to do. All this while burning the flag so many died for protecting their right to free speech.
Sorry – I was getting off track. I think you have valid points, but there is more than one way to skin a cat. Congress opted for option B, that certainly doesn’t make it illegal.
Bart Brannon for U.S. Senate – It’s time for some fiscal accountability!
BB,
That’s a fair point re: joint vs. simple resolutions. I’ll look at that some more.
Either way, I conceded in my post that this was a relatively minor point and what came after in the post was where the rubber meets the road on this question. The Iraq war resolution clearly violated the intent of the Founders, and is qualitatively and substantively a world apart from what a congressional Declaration of War actually does., as I show.
RE: the War Powers Act, I contend that that itself was unconstitutional, and has provided even more cover for those in Congress who want to shirk their constitutional authority re: making war. So, just because the resolution is authorized under the War Powers Act does not make it constitutional. The Act itself is taken to effectively amend the Constitution – and without a constitutional amendment, which is required.
BTW, BB, you really need to make use of http://www.tinyurl.com. It is a great resource for shortening those nastily long urls!
Eric
BTW – a side note here -
Richard Nixon agreed with your position. In fact he vetoed the resolution and congress overrode the veto. That’s what created the “War Powers Act” in 1973.
Bart Brannon for U.S. Senate – Let’s get fiscally responsible!
Mac,
I’ll answer according to your numbered points:
1) The fact that something was followed proper procedure says nothing re: the constitutionality of this question re: war powers.
2) I do consider them illegal and unconstitutional. I would make exceptions for retaliatory, defensive strikes, such as our bombing of Libya following their blowing up an airliner with Americans on it and Grenada, when the commies staged a coup and held hostage American medical students, etc. That is clearly within the Presidents constitutional responsibility to defend America from attack.
3) The point about the UN was in passing and not meant to be a focus, though it could be (This is another reason the Korean War was unconstitutional, btw). And again, just because something became law doesn’t make it constitutional – esp. since the law itself is unconstitutional!
4) You are missing my larger point regarding a Declaration of War. Congress abdicated their responsibility and said, “You decide, Mr. Bush,” and then effectively put handcuffs on his ability to prosecute the war. A Declaration of War puts the full might and will of the US behind the war effort. This resolution thus fails the constitutionality test on at least two counts.
RE: the rest, I refer back to my original post and the above responses to your points.
Thanks for the cordial debate, Mac.
Mac – re: your #5 – yes, that is true. And Nixon was also elected to get us out of Vietnam.
As I said to a friend in a recent email, I think the Dems are pathetic re: their positions on and approach to the Iraq War (just as they were re: Vietnam before). And they are even more culpable than Bush, because they are the ones who abdicated their constitutional responsibility re: making war. All so they could hem and haw like they are doing now, speaking out of two sides of their mouth. And then they don’t have the guts to defund the war according to their convictions, which they should do if they really believe as they do.
Eric you are well-versed on Constitutional matters, and I enjoy a good debate. I do, however, disagree with your conclusions.
Bart Brannon for U.S. Senate – As Olivia Newton John SHOULD have said “Let’s get FISCAL, FISCAL, I wanna get FISCAL…..let’s get into FISCAL………..
Mac: Your man-crush on Senator-Elect Brannon is really very sweet. But I fear he will disappoint you.
Sure, he supports lower spending—as a concept. He even calls for the elimination (sorry, privatization) of popular and established programs like social security. However, when it comes to actually voting against real-world pork bills, he is nowhere to be found.
Ask him if he agrees with the infamous congressman Tom Price’s voting record on spending, and the answer is a resounding YES! Price, as Mr. Konop routinely reminds us, voted yes on the Bridge to Nowhere highway bill because it also brought Georgia some nice highway pork.
Don’t give Brannon your heart, he’s a fiscal flirt and will only break it.
Left
My “man-crush” aside, at least Bart brings intelligent dialogue to some of the craziness posted here by people such as yourself.
Furthermore, if you read the Murtha thread, you’ll find he speaks out against this very issue.
The nice thing about we conservatives is that we can disagree without referring to one another with filthy language and conspiracy theories.
Case in point is this very thread. Eric and I disagree about the Constitutionality of the war in Iraq, but we can debate it without mentioning
“man-crushes” and the like.
You folks on the left are very predictable. When you have no ideas about something (which is almost ALWAYS) or you’re beaten in a debate, you start calling people names and attempt to emasculate them.
To quote you, “Good luck with that.”
Bart Brannon for U.S. Senate – It’s time for fiscal responsibility!
After reading through the argument, I still support the war. I believe it was the right decision and I still support it.
Does the lack of Congressional responsibility, that is clearly identified in the article, play into the historically low approval ratings that Congress is now suffering.
I wholeheartedly agree with the approval ratings of Congress. I think Congress is doing a pathetic job of governing America and an excellent job of pointing the finger of blame at the President.
The President hasn’t done everything right but neither has Congress.
Needless to say, I strongly support term limits!!!!
Lefty,
At the same time that I would vote in favor of Georgians getting billions to pay for much needed transportation improvements, I would also work with others to explore ways to radically reform the current redistribution of tax dollars.
In the case of the Highway Bill, Georgia previously got 80% of every federal fuel tax dollar collected in the state even though the state is growing faster than just about any other state. Because then Representative Johnny Isakson fought hard along with his successor Tom Price, Georgia now gets over 90% of every dollar back. That is not pork Lefty, that is getting closer to appropriate allocation of collected tax revenue.
Going forward, there needs to be a serious discussion/debate over tax reform at every level from local property taxes to the onerous federal income tax you dems so love to utilize for social engineering experiments. Congressman Price and Senator Isakson along with many others in the GA delegation concur with this radical idea that American taxpayers are being forced to unfairly send too much of their hard earned money to DC in order to fund out of control “progressive” social programs.
Given time, these fiscal conservatives will win out and America will be all the better for it.
Eric,
I will go along with Mac’s statement that you are obviously well versed on the Constitution, we just have a difference of opinion regarding its application in this instance.
I also see where you would find the War Powers Resolution to be unconstitutional, but it was handled in the open by the legally elected representatives of this country and overcame a presidential veto. If indeed it is blatantly unconstitutional as you presume, I wonder why it has not been challenged in court as happens to so many other pieces of legislation, i.e. the McCain – Feingold Campaign Reform Act.
Bottom line for me is I am satisfied that the president conducted himself within the law to pre-emptively invade Iraq and I support this policy as the best way to win the war on terrorism.
bb: Yes, there is always a small excuse for voting in favor of a large pork bill. That’s the nature of pork. That’s the origin and sustenance of our federal deficit.
Serious spending cutters vote ‘no’ and then pick up the pieces. Fiscal hypocrites vote ‘yes’ and then call for “serious discussion/debate”.
Eric
I’m with you on the Constitutionality of this “war”. The only Constitutional “War” is a war against another country which is accompanied by a declaration of war by Congress. I don’t know where you draw the line between war and military action but this is clearly different than Korea or Vietnam in a number of ways. But whatever the legality of this “war on terror” is, the Paleos aren’t giving it a free ride BECAUSE WE’RE NOT FIGHTING COMMUNISM!!! I’m still waiting for someone to call this a “War on Iraq” and back it up legally.
(Iraq War)
(And are we officially still at war?)
War on Terror, War on Poverty, War on Drugs, blah blah blah. You won’t find Constitutionalists at the forefront of any of these “Wars”.
Lefthook
You sound like Ron Paul!
One point that seems to have been overlooked. To affect the cessation of hostilities in the first Gulf War, there was a treaty signed that had actions required of all parties. Unfortunately, Iraq under Saddam did not meet his required actions. The result of his failure to abide by the treaty provides the legal right to continue hostile action in Iraq. This, in and of itself, makes hostile action in Iraq not only Constitutional (most important for US citizens) but also internationally legal.
And what were those actions, getting rid of WMDs? And when was War declared against “Gulf” What about Exxon?
In the ongoing debate over the present Iraq War, I have stood opposed since before we first attacked on March 19, 2003.
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Eric, that wasn’t the first attack. We were already at war. If the war was unconstitutional it was due to another administration starting the war. We were only under a cease fire and this was only a resumption of a war already started a decade earlier.
Also, we signed agreements to support the U.N. and while many don’t agree with our commitment to the U.N., the U.N. also authorized force and we are part of the “enforcement arm” of the U.N.
Then add the legal council’s interpretation I posted earlier that what the President did was constitution and no Supreme Court ruling any of the previous “use of force,” military called into actual service without a declaration of war, etc. and you have room for different beliefs on what is constiutional.
Jan and Flame,
No matter how you cut it, it was unconstitutional. If you want to say it was a continuation of the First Gulf War, that’s fine with me; I can accept that argument (though a second war resolution was needed for some reason). But that war was unconstitutional, too, for that very same reasons that I laid out in my post.
Quote:
September 25, 2001
MEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT
You have asked for our opinion as to the scope of the President’s authority to take military action in response to the terrorist attacks on the United States on September 11, 2001. We conclude that the President has broad constitutional power to use military force. Congress has acknowledged this inherent executive power in both the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at 50 U.S.C. §§ 1541-1548 (the “WPR”), and in the Joint Resolution passed by Congress on September 14, 2001, Pub. L. No. 107-40, 115 Stat. 224 (2001). Further, the President has the constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. Finally, the President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.
Our analysis falls into four parts. First, we examine the Constitution’s text and structure. We conclude that the Constitution vests the President with the plenary authority, as Commander in Chief and the sole organ of the Nation in its foreign relations, to use military force abroad – especially in response to grave national emergencies created by sudden, unforeseen attacks on the people and territory of the United States. Second, we confirm that conclusion by reviewing the executive and judicial statements and decisions interpreting the Constitution and the President’s powers under it. Third, we analyze the relevant practice of the United States, including recent history, that supports the view that the President has the authority to deploy military force in response to emergency conditions such as those created by the September 11, 2001, terrorist attacks. Finally, we discuss congressional enactments that, in our view, acknowledge the President’s plenary authority to use force to respond to the terrorist attack on the United States.
Our review establishes that all three branches of the Federal Government – Congress, the Executive, and the Judiciary – agree that the President has broad authority to use military force abroad, including the ability to deter future attacks.
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This is just the introduction to a long opinion on the constitutionality of the actions of the President and covers the founders as well as many other issues revolving around war and “declaring” war and the use of force without declaring war.
Now, if people steeped in constitutional law can’t agree or in this case do agree on the constitutionality of an action, without the Supreme Court ruling on it, and nobody taking it to the Supreme Court, makes me believe they are afraid to take it to the Court because they wouldn’t like the ruling the Court would give.
Many say that the “New Deal” policies that had been ruled “unconstitutional” and then later ruled “constitutional” are still unconstitutional but, how do you prove it when the Court has ruled they are constitutional? We are a nation where we have to either obey the rulings, and live by them, or replace the Court one way or the other and get new Justices that we believe will rule differently based on “new interpretation.”
However, constitutional or not, whether it was New Deal policies or war policies, many “constitutional” decisions have been “unwise” even if not unconstitutional. To argue something that can’t be proven without a Supreme Court ruling, accomplishes little while arguing the “unwise” choices where concrete evidence of “cause/effect” situations can be presented, may be the better choice at this time.
You could even argue the real reasons we resumed the war. While many say it was a false report of WMD, false or not, others believe the real reason was the sale of oil in euros by Saddam that led to the drop in the value of the dollar.
Here again, it does little to argue that since it can’t be proven, nor can the WMD issue be fully proven one way or the other since those who believe WMD existed also believe it was taken out of the country and the small stockpile of degraded WMD is all they need to “prove” to themselves, at least, he was violating the terms of the cease fire regarding WMD inspections and how it was to be destroyed only under supervision of U.N. inspectors.
That lack of using inspectors and just “claiming” it was destroyed is much of what led to the U.N. believing he had stockpiles. They had documented what he had, had documented what had been destroyed so far under their supervision, and the large amount that was documented as being in existence but never documented as being destroyed, left them only one conclusion, that he was hiding it.
Saddam brought the war on himself by not following the required procedure when destroying, if he did destroy, WMD which meant only under supervision of U.N. inspectors. He also did it by firing on our planes in violation of a cease fire in an ongoing war. He did it by selling oil in euros which wasn’t illegal but certainly increased the reason to then use the excuses provided by violations of the cease fire to take him out.
Remember there were articles about “the coming war with Iraq” after he started those sales. People all over the world knew that Saddam had done something that greatly increased the risk of war by selling oil in euros.
Now, Iran is doing the same thing. And as they do, we keep talking about WMD only in nuclear terms. Only, with Iran, we don’t have violations of a cease fire to use as an excuse. We don’t have U.N. authorization to use force and we don’t have Congressional authorization either. So, up to now, we are just “threatening” but Iran isn’t being threatened so far enough to get them to change their ways.
http://www.usdoj.gov/olc/warpowers925.htm
Link to Legal Council’s opinion
What Court has declared it unconstitutional? Why hasn’t it been challenged in the Supreme Court with all the legal people that say it is unconstitutional?
When people who have studied constitutional law for most of their lives can’t agree, how can you say 100% it is unconstitutional without the Supreme Court making a ruling on it?
“Further, the President has the constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. Finally, the President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.”
Hey no wonder the left is comparing Bush to Hitler. And I’ve personally referred to these so-called conservatives (Neocon Bush Supporters) as the “Good little Germans”
Jan
They would make more headway with a lot of people by perhaps arguing the lack of relevance of the Constitution in today’s world (the Bush proponents’ real view) rather than insisting that the Constitution (we’re talking about original intent here folks) is being adhered to in the area of War or any number of other areas. Once both sides decide to be honest with their beliefs this allows for an honest discussion of how today’s Government can actually operate effectively within the Confines of the Constitution.
Jan
Recent resolutions, acts, or laws, or lack thereof, by any branch of government don’t actually prove Constitutionality. Any more than the O.J. trial proved his innocence.
Jan,
Re: your #23 (and thanks, btw, for the link, I look forward to reading it!) – I lack time at present and maybe for the day to answer in more depth, so let me simply quote what I’ve said to you about this on another occasion, recognizing that this isn’t yet sufficient for you:
Also, this article today from my friend Mal Kline at Accuracy in Academia does a pretty good job demonstrating why unconstitutional actions and decisions by government is the norm today, and why your position is a dangerous one for conservatives – who say they recognize the authority of the Constitution – to hold: “Applied history: Why our leaders ignore the Constitution” – found here:
http://tinyurl.com/2qxyvu
I hope to respond at greater length – perhaps in a separate post? – to you and some of the other comments above in the near future. In the meantime, thank you for your considered thoughts.
I agree that the intent of the founders was never to have this type of situation but, the Constitution has been subject to interpretation from the day it was ratified, by the Courts, press, people, politicians, etc.
We set in place a system that decides who is interpreting the Constitution correctly with a Federal Court system that culminates in the Supreme Court at times where about 1% of the cases filed with it are heard. The other 99% being decided at lower levels of that system.
We said we would abide by their decisions whether we agreed with them or not, in order to be a “nation of law.” While you may be correct in your interpretation, the nation has to listen to the Court and in absence of the Court, obey the interpretations people in organizations like this make, or file a case and get their interpretation overturned.
Why haven’t the people who disagree with this interpretation filed to have it overturned? It is one thing to say it is unconstitutional but, when nobody is challenging it legally, your complaints are worthless. Do something about it if you disagree. Ask your Congressmen to begin a case that will be heard by the Court and overturn it.
Not one President or Congress for many decades has failed to use this interpretation over the one you have. Why? All have used the powers of Commander in Chief, limited use of force, support of U.N. actions, etc. to place our military in service. Why is it that not one Congress has actually declared war for decades even though we have thousands of soldiers dying “in actual service” of their nation?
Why is it that the majority of voters haven’t voted these politicians out that have interpreted the Constitution differently than you. There is no other “legal” interpretation of the Constitution than that of the Court unless Congress would act to either throw those Justices out or to have a Constitutional Amendment that clarifies the “will of the people.”
We have ways to change the interpretation and yet, I see no movement to do so that has more than a few followers. The fact that they would be supported by the very founders of this nation in many things, doesn’t matter. We have a nation with a system of government in place that allows for “interpretation,” amendment, laws, and of course, protests to try and get “interpretation” changed. We can and have protested and even had an amendment changed (prohibition). We constantly change laws with protests.
However, you can’t say it is unconstitutional just because you have a different interpretation. You can say our original intent wasn’t what we have but, since we have a system that allows change and we aren’t challenging those changes in any significant way, we are in at least one way, acting Constitutionally.
When the Constitution was written, but not yet ratified, the drafters of it, kept their debates secret.
Quote:
Whose Intent Was It Anyway?
It is one thing, of course, to claim that in seeking agreement the Framers used language that was open-textured and another that they themselves did not think their intentions should play a significant role in the interpretive process. It is tempting, in fact, to think that at precisely those points where the texts meaning is open to doubt, we ought to turn to what they originally had in mind.
It is, therefore, a matter of some significance that the Framers decided on the last day of the Convention (September 17, 1787) not to publish any record of their deliberations. They decided instead to entrust all papers to Convention President George Washington. Throughout the summer too there was a strict code of secrecy, a “gag” rule on all those in attendance. No one was to mention a word about the proceedings to anyone outside the Convention. If we expect arguments about Framers’ intent to bring the meaning of the Constitution more explicitly to light, the Framers themselves were certainly quite resourceful in making it very difficult, if not impossible, for us to recover their intentions. James Madison, who kept the most extensive notes during the course of the Convention, also refused to publish his journal until after his death
or, at least, . . . till the Constitution should be well settled by practice, and till a knowledge of the controversial part of the proceedings of its framers could be turned to no improper account . . . . As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character.
Here from one of the authors of the Constitution we have direct evidence that the Framers themselves tried to block access to their deliberations in part because they did not wish their original intent to play an “authoritative” role in subsequent efforts to interpret the meaning of the text. I believe there are at least two reasons for them to have held this view.
The Philadelphia Convention had not been authorized to draft a new constitution: rather it was to amend the Articles of Confederation. Anti-Federalists later made much of this lack of authority in their attack on the Constitution, as they did of the indeterminate language of the text, arguing that the vague language not only left it too open, to Congress and the Court, to interpret the document as they wished, but also might well have been a surreptitious attempt to slip in under the cover of generalizations the intentions of the Framers “to abolish entirely the state governments, and to melt down the states into one entire government.”
Against the Anti-Federalist charge that the delegates in Philadelphia had overstepped their bounds and tried to establish a constitution, Madison replied in The Federalist No. 40 that the delegates’ powers were “merely advisory and recommendatory.”
At the first North Carolina Convention Archibald Maclaine reiterated Madison’s point: “The Constitution is only a mere proposal . . . . If the people approve of it, it becomes their act.” Their original intentions were not relevant, the Federalists argued, because they had only drafted a document to be endorsed by a people. If intentions were to play a role in the interpretation of the text, they would have to be the intentions of those who accepted the Constitution, not those who wrote it.
http://people.brandeis.edu/~teuber/origintent.html
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In the original intent, the role of the people was key. If “we the people” didn’t like something (including interpretations) we had the power to do something about it. We can Amend the Constitution anytime “we the people” don’t think it is clear enough, or needs change, or needs a new section to cover something that didn’t exist in 1787.
It is “Constitutional” for us to not do anything. We have chosen the role for 70 years since the Court for at least 70 years has chosen to interpret the Constitution differently than previous Courts on many things and Presidents and Congress has chosen different interpretations, as well.
Get the people rallied and moving to get the interpretation you have applied, if you don’t like the current one. You may have a better chance now, than at any time prior to this. Even the huge “peace movement” during Vietnam couldn’t get the interpretation you have applied but, maybe you can now.
Just because you say it is unconstitutional isn’t swaying any Congressman, apparently, that wasn’t already convinced of your interpretation. They aren’t being listened to either. They are also being told their interpretation is wrong and yet, they aren’t challenging it in Court. Why not?
So, while I can agree that you may be correct in “original intention” of the founders regarding war, that doesn’t mean it is actually “unconstitutional” since the Constitution doesn’t “require” a declaration of war but does give Congress that power. Short of “war” apparently, under modern interpretation, many other options are available and by not declaring war, they believe they are being Constitutional when they use those other options.
It is like going to a doctor and say, “Doc, it hurts when I do this.” The Doctor replies, “Then, don’t do that.” Congress has decided it “hurts” to declare war and put them on the hook. So, they choose to use other options that they can then weasel out of responsibility for or “limit” what is done so they can “please” more people or comply with U.N. requirements or other agreements that have been made where we promised to use force if necessary.
Quote:
Realizing the world was embarking on something new and mind boggling, elite money managers, with especially strong support from U.S. authorities, struck an agreement with OPEC to price oil in U.S. dollars exclusively for all worldwide transactions. This gave the dollar a special place among world currencies and in essence “backed” the dollar with oil. In return, the U.S. promised to protect the various oil-rich kingdoms in the Persian Gulf against threat of invasion or domestic coup.
http://www.house.gov/paul/congrec/congrec2006/cr021506.htm
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In other words, we, as a nation, made a commitment to protect OPEC nations in the Middle East against people like Saddam (invasion of Kuwait, an OPEC nation selling oil in dollars). Was that Constitutional for our nation to enter into an agreement where we promised to use military force to protect other nations? We have entered other agreements, like the U.N. and NATO and others where we promise to use force, if necessary, to uphold the agreement. Congress authorized those “limited” uses of force and one thing leads to another and the “interpretations” of what we should and shouldn’t do “constitutionally,” changes. When that happens, it is up to the people using elections or protests or the Courts to reverse that change. We haven’t done that so, until we do, it may very well be “Constitutional.”
To prove you are correct, you have to get the Court to agree with you at some level. Even a “lower Court” ruling would be a start. You could prove it too, with a majority of the voters through either “protest” or election but, why not just challenge it in Court and get it settled?
Take the IRS and the Amendment that brought it about. For over 90 years, some have said it is “unconstitutional” or “wasn’t ratified correctly,” etc. Yet, the people allow it to stand. The “will of the people” has prevailed. Isn’t that what we originally wanted? Didn’t we want the “will of the people” to prevail?
Jefferson said in his Response to the Citizens of Albermarle
February 12, 1790
quote:
It rests now with ourselves alone to enjoy in peace and concord the blessings of self-government, so long denied to mankind: to shew by example the sufficiency of human reason for the care of human affairs and that the will of the majority, the Natural law of every society, is the only sure guardian of the rights of man. Perhaps even this my sometimes err. But it’s errors are honest, solitary and short-lived. — Let us then, my dear friends, for ever bow down to the general reason of the society. We are safe with that, even in it’s deviations, for it soon returns again to the right way.
=========================
In other words, we may err, in this current interpretation that we “approve” by our inaction, but, we are to follow that principle of the “majority prevailing” even when it is through “inaction” that allows the Court or Congress or the President or the Legal Council to have a different interpretation than others.
First convince the majority of your view and then you will prevail even if the Court should rule against you because, if the majority is with you, then you even have the power to amend the Constitution to make it so crystal clear there can be only one interpretation.
I am doing something, Jan. I am working on doing what you say in your closing paragraph, in fact: “First convince the majority of your view and then you will prevail even if the Court should rule against you…”
The Constitution is actually quite clear, especially when you understand the concepts of enumerated powers (i.e. specifically delegated powers), federalism, and innumerable natural rights. Our job is to convince people of the importance of the Constitution, teach them these concepts that undergird its construction, and get them to vote and organize in support of a rekindled and robust constitutionalism.
In the article you supplied was this.
“Antifederalists opposed the Constitution on the grounds that its checks on federal power would be undermined by expansive interpretations of promoting the ‘general welfare’ (which would be claimed for every law) and the ‘all laws necessary and proper’ clause (which would be used to override limits on delegated federal powers) creating a federal government with unwarranted and undelegated powers that were bound to be abused,” Dr. Galles writes. “One could quibble with the mechanisms the Antifederalists predicted would lead to constitutional tyranny.”
“For instance, they did not see that the Commerce Clause would come to be called ‘the everything clause’ in law schools, justifying almost any conceivable federal intervention—because the necessary distortion of its meaning was so great even Antifederalists couldn’t imagine the government would get away with it.”
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That is exactly my point. They are using the Constitution as they interpret it. It was written vague, probably so that each state could interpret it to mean what that state wanted it to mean. That may also be why the debates in the Constitutional convention were kept secret. That way, the States wouldn’t interpret the Constitution as the drafters had, if it conflicted with their own view of what it should be.
Remember, the Constitution was a huge “compromise” that even allowed slave states to feel they were going to be represented and not threatened over slavery.
The “intent” was a “starting point.” Also, remember that the Bill of Rights didn’t apply to the states for 150 years because if they had, the States would never have ratified the Bill of Rights, at least not the states with state religions, religious tests, or religious based morality laws. Nor, would the slave states had they believed the Bill of Rights would apply to them and their slaves.
We were to amend it, use it, interpret it, etc. “We the people” were to be the prime mover in what was and wasn’t done to the Constitution or with it. We have the power to change what is going on and have had that power for the entire 70 years since the “New Deal” Court changed many of the interpretations the first 150 years of Courts had made. Yet, “we the people” choose to not do that.
Are you saying that just because your interpretation of the Constitution is different than that of the majority or at least the majority that has the power to change the current interpretation, the Congress should listen to you and the others in the minority who say they are right and the rest wrong?
I have often written that my belief of what current interpretation is, is not in keeping with the original intent. So have Supreme Court Justices and many Constitutional law experts and yet, they are still in the minority and until they are in the majority, the “majority must prevail” according to Washington and Jefferson even if it is due to “inaction.”
Let’s say we were able to “force” the majority to comply with our interpretation. They have then, the power to amend the Constitution and take what we gain away. They could specifically amend the Constitution to give the President the very powers he is using. That is probably unlikely, but, that is how our system works. The majority has the right to change the Constitution and, I believe, that under original intent it was to be with the amendment process, but ignoring it has seemed to also worked or at least if not ignoring it, using “modern interpretation” of the “Commerce Clause,” the “General Welfare Clause,” the “Bill of Rights,” the “14th Amendment,” etc.
That is what you get when you have a “compromise document” with vague terms such as “actual service” giving the President powers of the Commander in Chief. Nowhere does “declaration of war” get inserted in that section of the Constitution regarding powers of the President. It is an “easy” interpretation by some to say, anything less than “declared war,” can be determined by other than Congress even if Congress is the “authorizing” force and why is it? Because, without authorization, there would be no funding of it.
Right now, Congress could end funding and many are demanding just that and the power of the President would be so limited that he would have to pull the troops and without that authorization would have never sent them to begin with, probably. There is nothing that actually says Congress “has to declare war” to fund military operations. There is nothing that actually says they can’t use less than war to defend the nation. And, as often as this nation has used less than “declared war,” in the defense of the nation, now, it would seem that the majority agree with that view even though they seldom like the outcome of the action taken.
That should be the rallying cry for those who don’t like this interpretation. They should convince the majority they don’t get what they want with limited action. They should convince them it costs more, loses more lives, misses the goals, as well as, violates the intentions of the principles this nation was founded on.
I’ll stay on the sidelines while reading Eric and Jan’s discussion.
I look at this discussion from the military members view, being a retired, disabled vet and father of an active Marine. What intrigues me is that so much is made of the Constitutionality of this conflict yet I rarely see any mention of the unconstitutional actions taken by members of Congress interfering in foreign policy (i.e. Pelosi)
I think about this point you’ve made here, and it gives me the urge to dig up Halberstam’s “The Best and the Brightest” and transcribe the portions in Chapters 7-8 that lay out how we got into Vietnam.
So true what you point out here…I’d like for it to be different. Eisenhower was the guy who almost made it happen with Vietnam…his reverence for the role of Congress was behind every one of his plays during the time of McCarthy and France’s empire on life support in SE Asia.
Eisenhower clearly placed onus on Congress to decide whether or not to commit more resources to Vietnam, and during his Presidency, the correct decision was made.
The whole concept of the executive committing money, US lives and our prestige on his/her own is an outdated concept, having proven to be the cause for disasters in Korea, Vietnam and now Iraq…three wars that amounted to a lot of money and lives spent on nothing.
Presidents got us into all three. So it’s time to revisit the constitution, and actually focus on what it says. Get back to teaching civics in US schools.
So would a pre-planned nuclear strike on Iran be Constitutional without a declaration of war by Congress?
Al
Re #34. Again we agree on something. I’m not debating whether congress declares war. I think we all agree that’s true. What I’m saying is that the constitution is being ignored in virtually every aspect of American government. Health care, Education, the list goes on and on.
What really gets my goat is people who USE the constitution when it’s convenient, and ignore it altogether when it suits them – the very definition of hypocrite.
I won’t speak to the legality of any action we’ve undertaken since WWII, other than to say none were a “declared” war.
Please keep posting Al. We may not agree on much, but I must admit your points are well thought out and make for good debate. Please avoid the smutty language.
Bart Brannon for U.S. Senate – It’s time to return to a system of VERY limited federal government as our Constitution lays out!
I think the Constitution was threatened in 1913 when “we the people” amended it, but at least it came from the people, however unwisely. We not only made the mistake of ratifying the income tax but even worse, took the appointment of Senators by State Legislatures away from the States and began electing them.
By doing that, they stopped protecting the state in general and became vulnerable to the special interest groups voters and commerce create to try an influence policies. As appointed Senators, they were beholden to the well-being of the state and less likely pass legislation that lost the state sovereignty.
However, it was the “New Deal” Courts that really stripped the nation of the “intent” previously found in the Constitution. New “interpretation” that wasn’t challenged and allowed to remain, formed the precedent for case after case.
The 1925 Gitlow vs. New York became the case, for example, that later cases were based on that were used for precedent in Roe v. Wade. If you look at that case you see it refer to Griswold and then look at that and the precedent used in it and you find it goes back to Gitlow.
Quote from opinion in Griswold
In Gitlow v. New York, 268 U.S. 652, 666 , the Court said:
“For present purposes we may and do assume that freedom of speech and of the press – which are protected by the First Amendment from abridgment by Congress – are among the fundamental personal rights and `liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” (Emphasis added.) [381 U.S. 479, 488]
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And also in Griswold (1965) said,
quote:
This Court, in a series of decisions, has held that the Fourteenth Amendment absorbs and applies to the States those specifics of the first eight amendments
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For 150 years that didn’t apply and the Courts didn’t rule they did. This “doctrine of incorporation” really set in motion the shunning of original intent by stating a new interpretation for the 14th’s application and use in forming decisions but, it wasn’t just the Court that took on new powers. Congress and the Presidents, no longer concerned the Court would view “social engineering” as unconstitutional took a new course toward the principles of socialism which were gaining in popularity at the time. The promise of “utopia” with a “chicken in every pot,” was hard to turn down.
However, until you have a voting population that actually elect Senators who want to approve Constitutionalists as Justices, they will continue to interpret differently that the Justices of the 1st 150 years.
That doesn’t mean “conservatives” will be Justices, nor Liberals. It means that we would have Justices who let the states be liberal or conservative based on the people in each state as was intended in a Republic. The 14th incorrectly has been interpreted as providing the Courts the power to apply the Bill of Rights to the states when each state had their own Constitution to protect rights. The 14th specifically gave the power of oversight to ensure each state would apply their Constitution equally, and justly to all citizens of all races and nationalities, to Congress, not the Court where five people could determine the fate of an entire nation. Five people of nine, I might add, appointed by a President, not the people and approved by Senators who no longer have the same loyalty to the sovereignty of the state they had before.
All of this power may have carried over to “war” powers as well. Hey, if you are going to change the intent of the Constitution for one thing and have it go unchallenged, why not for other things. The people had spoken with their silence. “Go ahead. We won’t stop you.”
So, the one intent of the Constitution, to let the people make the changes when the majority want a change did, in fact happen, The majority kept quiet and change happened. But, the “process” wasn’t followed and that lack of process is what has so many of us upset. We have politicians taking advantage of human nature where “work” to make the changes or prevent the changes is unpopular while standing by and letting things happen is much easier plus, voters can always then say, “It wasn’t my fault. I didn’t vote for it or support it.”
However, keep this part of the legal council’s opinion in mind. Whether true or not, I can’ verify but, it is important regarding intent, if it is true.
Quote:
Finally, the Framing generation well understood that declarations of war were obsolete. Not all forms of hostilities rose to the level of a declared war: during the seventeenth and eighteenth centuries, Great Britain and colonial America waged numerous conflicts against other states without an official declaration of war. (8) As Alexander Hamilton observed during the ratification, “the ceremony of a formal denunciation of war has of late fallen into disuse.” The Federalist No. 25, at 133 (Alexander Hamilton). Instead of serving as an authorization to begin hostilities, a declaration of war was only necessary to “perfect” a conflict under international law. A declaration served to fully transform the international legal relationship between two states from one of peace to one of war. See 1 William Blackstone, Commentaries *249-50. Given this context, it is clear that Congress’s power to declare war does not constrain the President’s independent and plenary constitutional authority over the use of military force.
http://www.usdoj.gov/olc/warpowers925.htm
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Regarding “preemptive strikes and nuclear weapons.” First, a preemptive strike, if authorized wouldn’t limit any use of or choice of weapons. Either you can or you can’t. Thus when Clinton bombed Iraq for violations of the cease fire, he could have chosen nuclear weapons. That doesn’t mean the “wrath of the world” wouldn’t have come down on him if he had, but, there is nothing in “preemptive strikes” that limits the choice of weapons. Those limits would have to come from other sources.
Here is what Clinton said,
Quote:
Earlier today, I ordered America’s armed forces to strike military and security targets in Iraq. They are joined by British forces. Their mission is to attack Iraq’s nuclear, chemical and biological weapons programs and its military capacity to threaten its neighbors.
Their purpose is to protect the national interest of the United States, and indeed the interests of people throughout the Middle East and around the world.
Saddam Hussein must not be allowed to threaten his neighbors or the world with nuclear arms, poison gas or biological weapons.
I want to explain why I have decided, with the unanimous recommendation of my national security team, to use force in Iraq; why we have acted now; and what we aim to accomplish.
Six weeks ago, Saddam Hussein announced that he would no longer cooperate with the United Nations weapons inspectors called UNSCOM. They are highly professional experts from dozens of countries. Their job is to oversee the elimination of Iraq’s capability to retain, create and use weapons of mass destruction, and to verify that Iraq does not attempt to rebuild that capability.
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And here is what the legal council says.
Quote:
The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them,
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Thus, the current information we are being given about Iran supporting Iraq terrorism, supplying them with weapons and people and funds, sets the “legal” and supposedly “Constitutional” stage for the President to strike preemptively, Iran if he chooses to do so, whether wise or not.
“Constitutionally,” if “unwise,” Congress then would have the right and power to impeach and remove him. But, as you can see, “intent” about limited force vs. declared war is certainly not clear even as far back as the beginnings of this nation. Is that history accurate? If it is accurate, how can you say that it isn’t Constitutional if the very people who fully understood the Constitution, interpreted it to mean force other than “declared war” could be used?
If the very people responsible for the creation of this nation felt they could use force other than “declared war” how can we say current Presidents can’t. Again, this is provided the “history” provided by the legal council is accurate.
Jan
there’s no question that there’s a blurry line of distinction between “military action” and “war”. However the Bushes have gone far beyond anything else with their actions in the Middle East. And “Jr” is continually “breaking new ground” against the constitution. And all you can seem to do is blame Americans for their inaction. Interesting.
“On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.” -Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p322.
Note: Adopted, not drafted. The debates in each state were heated and covered each state’s needs, interpretation, fears, etc. That “fear” was expounded on in Barron vs. Baltimore.
Quote:
But it is universally understood, it is a part of the history of the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen who then watched over the interests of our country deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government — not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.
http://www.constitution.org/ussc/032-243a.htm
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Too often, when people refer to the “intent” of the Constitution, they refer to the debates in the Constitutional Convention where it was drafted. But, those debates weren’t published until after ratification. The debates referred to are the debates in the state conventions for ratification, usually.
The “intent” of the Constitution, according to those who drafted it, was not to be their “original intent” but the intent of the people which they said would come from how they legislated, ruled in Courts, and applied the Constitution. However, once that “intent” was established “by the people,” it would become the “precedent” for future generations and only Amendment would change that intent and the words and meaning found in the Constitution as interpreted by the people who ratified it.
Again, this whole system of government was based on the people, not politicians in Washington.
Thus, when you say, Bill, that I blame the people and not others, that isn’t true. I blame Bush for many things, including not sealing the border, no child left behind, the prescription drug program, how he fought this war in Iraq, the lack of spending constraint by Congress, the treasonist speeches on the nightly news that encourages al-Qaeda and other terrorist groups and give them “aid and comfort.” However, since we “aren’t in a declared war,” their speeches aren’t treason, technically.
Remember, we had people sent to prison for just protesting the draft during a “declared war.” One with speeches and one with a pamphlet and both cases were upheld by the Supreme Court. Think how much more destructive the politicians speeches have been to the military in the current situation. They were to keep those concerns behind closed doors and “fight” if necessary to do the right thing and reach the right decisions but, until they did, keep quiet in public. We are not a democracy. We are not a nation that is to determine war policy in public. But, when it isn’t “declared war” anything is “legal.” That is why I am so opposed to what is going on. There are no “rules” of engagement here or abroad that can be depended on. We fight based on the “will of the U.N., or the politicians, or some other nation (like Pakistan) or “the public” instead of with sound military reasoning that has only one goal, victory with clear cut goals.
But, ultimately, it is the people, who elect these people who are responsible and to blame. You can forgive the people for sometimes electing a bozo but for 70 years they have been electing bozos to one degree or another. Look how long Teddy Kennedy has been there and reelected or some of the others in both parties who live and breathe “pork” and uncontrolled spending. Neither party is leading this nation away from the train wreck and yet the people don’t look for a new party in any significant numbers because “it is just too much work” and “we might not win.” So, instead, of doing what they really believe, they “vote for the lesser of two evils.”
So, who is to blame for that?
Quote from Jefferson used:
and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”
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The problem we face when we try to use any quotes from then, is that our “friends” who don’t want “original intent” say, all that went out the window with the 14th Amendment. Although the Courts for another 60 years didn’t change “original intent” on hardly anything, beginning in 1925, the Courts said the 14th had changed everything. It wasn’t the 14th that changed everything. It was the new interpretation of the application of the 14th that changed everything and from that point on, Congress and Presidents have assumed all kinds of powers and policy needs that were never allowed before.
And, until you have a Court that returns us to “original intent” where “we the people” make the changes through amendment, you won’t see Congress or Presidents give up their powers they believe are now “Constitutional” or at least “interpreted” as being so.
But, as long as “we the people” can elect our representatives, we are to blame for the mistakes our representatives make.
Bill-
Re:Post 39 above……
OUTSTANDING!!!!!!!!!!!!!!!!!
OUTSTANDING!!!!!!!!!!!!!!!!!
OUTSTANDING!!!!!!!!!!!!!!!!!
In other words, nicely said!
Bart Brannon for U.S. Senate – Let’s fet back to fiscal reponsibility!
[...] (original context) © 2004-2007 Eric F. Langborgh [...]
[...] (original context) © 2004-2007 Eric F. Langborgh [...]
[...] On one side, folks need to rethink the nit-picking blog discussions about the constitutionality of a war that Congress clearly and publicly authorized. If the liberals will go to the mat over the perfectly legal firing of a few political appointees, don’t you think that they’d be all over a legitimate constitutional issue like a wet diaper on a baby’s bottom? [...]
How about looking at things from another perspective regarding the illegality/unconstitutionality of the Iraq War? The Supremacy Clause of the Constitution says that any treaties made pursuant to the Constitution become the Law of the Land on par with the Constitution.
The United Nations Charter is one such treaty. Since the first Gulf War was a UN-sanctioned action, the cease fire under UNSC Resolution 687 is the UN saying “the war is over and these are the things we want Iraq to agree to do”. Bush claims that UNSC Resolution 1441 (2002) gave him authorization for the invasion of March 2003 because it *somehow* reversed the cease fire. (Under the UN Charter Article 42, the only two cases where one member nation may attack another member nation is (1) self-defense or (2)when specifically authorized by the UN.) Even a cursory read of 1441 shows no such authorization, which means the invasion is unilateral and, therefore, in violation of the UN Charter. Ergo, the Iraq War is both illegal and unconstitutional.
Because the Gulf War, Cease Fire, and sanctions were all made pursuant to the UN/International Law, it doesn’t matter if Congress approved the war and Bush signed off on it–it is still illegal.
It is also useful to note that Bush sold the war to the American people as self-defense (Iraq had WMD’s and was going to attack us with them), but told the UN/International community that Iraq’s feet-dragging over the inspections caused a “material breach” of the cease-fire and, as a result, it was justified for Bush to invade. If Bush had gone to the UNSC with a self-defense claim as justification for invasion, he would have been required to show where being attacked was imminent.
Jim
Very interesting post!!! THANKS
http://www.un.org/Depts/unmovic/documents/1441.pdf
That is a site with the resolution.
What was the real reason we “wanted” to remove Saddam? Was it oil or was it Saddam selling oil in euros and weakening the dollar? Was it because of the attempted assassination Saddam had planned?
One thing I think most Americans now believe is that even if Saddam had WMD someplace and moved it out of the nation, it wasn’t an eminent threat. There had to be other reasons for our “wanting” to go to war and remove Saddam.
We were willing to go to Iraq and bear the accusations of many, and yet, not willing to go into the area of Pakistan where al-Qaeda operates from and bear the accusations of unjust war in that nation. We are told that Pakistan is an “ally.” Yet, wouldn’t an ally welcome help in removing terrorists from their nation that threatened not only the U.S. but many nations with acts of terrorism?
For the defenders of the war, I can see many reasons in the violations of the cease fire that “justify” action. But, at the same time, see too much that indicates another agenda was more important in the decision to finally act after years of violations and even Clinton’s bombing of Iraq.
Maybe the truth was told. But, if it was, it wasn’t the whole truth and that may be what has so many people upset with this administration and Congress, for that matter. It is the same with our immigration/open border policy. Much isn’t being told the American people about why we want 67 to 100 million more people added to our population and its decaying infrastructure whether they are illegal or legal immigrants.