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Populist #23

by Franklin Friday, Mar. 10, 2006 at 3:33 PM

The Executive and War Powers, continued

Read More Related Commentary Here:

Populist #23
On the Executive Branch; Relating to War Powers, continued

Contrary to common belief, the Constitution of the United States is not the origin of our rights!  In reality, it would be an exercise in futility to search its original text for any granting of rights to the People; including freedoms of speech and religion, the right to bear arms, or the right to a speedy and public trial.  Instead, our nation's founders wrote the Constitution as a specific set of limits on the powers of the federal government; it rests on a strict enumeration of federal powers.  The Tenth Amendment makes this quite clear when it states that powers "not granted to the United States" are "reserved to the States, respectively, or to the People."  Thus, if the Constitution does not specifically grant a particular power, the federal government is not authorized to do it.  Period.

Americans in our nation's early days were well-aware of the kinds of people who have always been attracted to positions of power within government; this is why the framers used the Constitution to simply enumerate the powers that were delegated by the People to the government.  The Framers were highly sensitive to the fears that the new central government would destroy the independence and authority of the States and the People. To guard against that possibility, they stipulated that the federal government would have only a small number of powers that were explicitly enumerated in the Constitution.  As James Madison explained in Federalist #45, "The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite." He also stressed, in Federalist #39, that since federal jurisdiction extends "to certain enumerated objects only," the Constitution "leaves to the several States a residuary and inviolable sovereignty over all other objects."

In reading the Constitution, we can plainly see that Congress possesses the power "to regulate commerce with foreign nations, to raise and support armies, to grant letters of marque and reprisal, to provide for the common defense," and even "to declare war."  Congress shares, with the President, the power to make treaties and to appoint ambassadors.  As for the Executive, the President is assigned only two powers relating to foreign affairs; commander-in-chief of the armed forces, and the power to receive ambassadors.

It is, specifically, the powers of waging and declaring war which have drawn our examination in recent numbers of these papers.  These are powers of such gravity that they are worthy of additional study here.  The United States Constitution, which is the supreme law of the land in our country, delegates the power to declare war to the Congress and the power to wage war to the President.  What that means is that only the Congress, as representatives of the People and of the States, can determine whether or not the nation goes to war.  If the People, through Congress, decide that the nation shall go to war, the President then, and only then, has the authority to wage it.  If the 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.  This is, again, shown clearly in the following statements:

"As the executive cannot decide the question of war on the affirmative side, neither ought it to do so on the negative side, by preventing the competent body from deliberating on the question."
- Thomas Jefferson

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

Presidential orders, even those issued as commander-in-chief, are subject to restrictions imposed by Congress.  A Congressional declaration of war, for example, limits Presidential powers, narrows the focus of the action, and implies, or clearly stipulates, a precise end-point to the conflict.   Like it or not, the Constitution is clear, and the only way it can be changed is through the procedure for amendments as outlined in the Constitution.  All Presidents that have waged war without a Congressional declaration, including Presidents Truman, Johnson, Clinton and Bush, have broken the law; the law specifically stated in the Constitution; thereby conducting themselves like dictators, albeit democratically elected, in order to determine the future of foreign people and nations.

The fact that Congress is not permitted under the Constitution to transfer the war-declaring power to a President has been repeatedly ignored.  Only Congress can declare war, if we are inclined to follow the rule of law.  Thus, those members who've voted to do so are just as guilty, in violating the law, as Presidents have been in their act of accepting, rather than refusing, this illegal transfer of power.  To add insult to injury, many acts of war by our country have cited United Nations resolutions as justification.  Ignoring the Constitution, while citing the UN as a justification for war, has shown us the callous disregard that our political rulers have had for the restraints written in the Constitution.

The framers deliberately wanted to make war difficult to embark upon without public legislative debate; thus, they intentionally kept this power out of the hands of the executive branch.  It is logical to assume that they never would have dreamed of a President with such powers, or of the possibility that an international governmental body would have influence over our foreign policy; telling us when we should or should not enter into armed conflict.  And, as a result of our multiple undeclared wars, millions of people are dead.  Since just 1999, United States' forces have attacked three more nations.  Each time, a President has either started the war outright, or allowed Congress to relinquish its power to decide.

President Clinton's bombing of Sudan and Afghanistan on the eve of his indictment ended a Taliban plan to expel Osama bin Laden from Afghanistan.  His bombing of Yugoslavia resulted in thousands of deaths, and his bombing of Baghdad on the eve of his impeachment hardly reassured anyone of a just and balanced American foreign policy.  The continued blockade and bombing of Iraq for more than a decade, which has been carried out by three Presidents and Congresses led by both major political parties, has caused in the deaths of hundreds of thousands of innocents.  Actions such as these are not beneficial to our national security, and cannot be fixed through party allegiance alone.  What remedy can there be for this situation, other than a change in the system that has allowed it!

Without a proper declaration, without public debate, without the People deciding whether or not to engage in conflict, no war is legal, moral, or just!  This is exactly what our nation's founders warned against when creating our government.  Most had just left behind a monarchy where the power to declare and wage war rested on the decision of one person, the King of England.  It is this they most wished to avoid.

Some have argued that the war-declaring power comes from the sum of constitutional provisions dealing with war.  Abraham Lincoln's well-known act of combining the commander-in-chief clause with the clause authorizing the President to enforce the laws is a misbegotten form of this claim.  Resolutions authorizing the Executive to initiate force are not declarations of war, however, and this point is of the greatest concern to our nation; these resolutions transfer the constitutionally-mandated Congressional authority to declare wars to the executive branch.  These resolutions have told Presidents that they, and they alone, have the authority to determine when, where, why, and how war will be declared, waged, and completed.

Numerous bills have been passed by Congress, merely asking the Executive to give a courtesy report to the People, through Congress, sometime after war has begun to let us know what is happening.  But, in an age where warfare can destroy nations and people in weeks rather than years, any resolution requesting a courtesy call after conflict begins effectively hands to the Executive the dictatorial powers to declare, wage, and complete wars without the input of Congress and the People.

However, as the Supreme Court affirmed long ago, the Constitution does not permit one branch of government to delegate its powers to another branch.  Thus, Congressional resolutions authorizing the President to decide whether or not to invade a foreign nation are a nullity under the Constitution, leaving the President with the illegal dictatorial power to both declare and wage war.

President Bush chose to ignore the United States Constitution by ordering our military into Iraq.  His son has done the same.  President Reagan ignored the Constitution by attacking Libya, while Presidents Kennedy and Johnson did so by sending troops to Vietnam.  In launching illegal wars, these, and other Presidents sent the world the following message:  While the United States is a nation that has a Constitution which expressly limits the President's power regarding warfare; in practice, our system of government gives the Executive the power to ignore the law and exercise dictatorial powers instead.

I rise in opposition to these, and all other acts of undeclared war!  I rise again, in opposition to any resolutions or "laws" that Congress may pass, which transfer such power to the Executive!  I rise in opposition to each person in Congress, past and present, who has voted to give such power to the Executive; thereby violating both the trust of the People, as well as the sanctity of our laws!  I rise in opposition to all Presidents who have accepted these illegal transfers of power, rather than refusing them in the defense of freedom and justice!  I rise, yet again, in opposition to those who violate their oath to "preserve, protect and defend the Constitution of the United States."

I will continue this discussion with my next paper.  In parting, I hope that you will reflect upon these eternally-wise words of that great friend to liberty, Patrick Henry:

"The Constitution is not an instrument for the government to restrain the People; it is an instrument for the People to restrain the government."

In the spirit of liberty and prosperity,


The Populist Papers are an ongoing series of essays, published bi-weekly, in an effort discuss the current nature of the system of government in the United States; analyzing both its merits and defects.  The goal of the Populist Papers is to define, defend, and promote what may be considered revolutionary; the establishment of a Constitutional Democracy in America.  Written anonymously to ensure discussion of the principles alone, these essays attempt to both explain the complexities of government, and determine the proper place of a federal government based on the inherent rights of all people.

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