Undeclared War and the Destruction of the Constitution
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.
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.
Unless the country is being invaded, 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.
In addition, 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 of Congress 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.
As a result of our multiple undeclared wars, millions of people are dead. Since just 1999, United States’ forces have attacked at least three more nations. Each time, a President has either started the war outright, or allowed Congress to relinquish its power to decide.
Without a proper declaration or war, 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 null and void under the Constitution; leaving the President with the illegal dictatorial power to both declare and wage war.
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.
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.
The continued bombing, blockade, and subsequent invasion of Iraq has been carried out by three Presidents and Congresses led by both major political parties. The result? The deaths of well-over a million innocents.
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.
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This is a great and important article very well done..
This is nothing less than a plot to over throw our very system of government by the Federalist Society and those others who are the very people Jefferson and Franklin and others like Madison warned us of..
Chertoff is already showing his corrupt arrogance imagine once he is in charge of most of America and it’s industry just as Albert Speer was in the Third Reich..!
I have written and posted on this else where every where yet not one Presidential candidate has mentioned NSPD-51 or HSPD-20 or elected official is it already to late have we and our Founding Fathers intent been totally betrayed already..
The Bilderbergers control our media and war huge full scale war all but inevitable thanks to our sold out bought and sold out elected representatives..!
Jefferson said: “Ours is not a system based upon trust, but one of suspicion..!”
How does this not violate all Jefferson and the others fought for and we have squandered for this fraud idiot arrogant..Administration..of G.W. Bush..
Sigh . . . Another 1,133 words to tell us that the feds are not honoring the Constitution. So? What else is new?
It’s very discouraging. The Internet is loaded with bloggers, columnists and complainers who like to talk the talk but come up real short when someone asks them to put their money where their mouth is.
I know, I’ve been trying. I have a well structured plan that, if successful, will force Washington to respect and adhere to the Constitution, but when I contact writers of articles such as this to help out a little bit all I get is a “Ho hum, there’s nothing we can do about it.” So, are you just another one who likes to talk the talk but don’t want to walk the walk, otherwise known as “summer soldiers.”?
I look forward to your answer here and I give blanket permission to the hosts of this page to give out my email address.
Sterling Saunders - thanks for your note.
We find the growth of bloggers, columnists and the like - talking about the constitution and the problems we face - to be a big step towards liberty.
We don’t trust anyone who has a plan to “force” change….. Force is just what the politicians use now - they force us to go along with their plans at the point of a gun. In a free society, force is not the way to make change - it’s through education and persuasion.
That’s what we’re working on here.
Even John Adams recognized the need for this:
“The Revolution was effected before the war commenced. The Revolution was in the minds and hearts of the people… This radical change in the principles, opinions, sentiments, and affections of the people was the real American Revolution.”
If that’s not good enough for you, we apologize, but recommend that you look elsewhere.
Sorry about the misunderstanding on my use of the word “force.” I used it in the political context that means simply that those who do not adhere to the Constitution will not be reelected and they will know it. In the mindset of the person holding office, that is “force.”
For instance, because of the 17th Amendment we now have 100 Senators who are answerable and accountable to no one except the mainstream media, campaign contributors and special interests. This change happened shortly after the 17th amendment moved their selection to popular election rather than appointment by their State Legislatures. With a constituency that numbers in the multiple thousands and, in some cases several million people, the individual’s “power in the ballot box” has become a farce. The solution to that situation is to Repeal the 17th Amendment and I have a good, solid plan put together to do that. That’s the first step we have to take to get our government back.
The second problem centers on the House of Representatives for much the same reason but from a different cause. The number of Representatives is frozen at 435, but as the population grows, the size (in terms of number of eligible voters) of their district grows proportionately. Currently, the average Congressional District contains 700,000 people. Compare that to the Constitutional limitation that a Congressional district contain no fewer than 30,000 people. In today’s world, the individual voter has no real say in what the Rep in the House does.
Put these two together and we have Legislative Tyranny. Virtually every law creates a Regulation Writing opportunity for the Bureaucrats. At the end of 2006, there were 144,040 pages in the code of federal regulations. So, what we have now is Legislative Tyranny that fosters and feeds an imperial bureaucracy manned by people who have little or no respect for individual rights.
If we think that sooner or later the right people will get to Washington to straighten the mess out, that’s just wishful thinking. As a wag once noted, “They campaign on the theme that Washington is a cesspool but when they get there they discover it’s a hot tub.”
The only way it’s going to change is to change the way they are elected. Whether we like it or not, reelection quickly becomes the first priority of someone holding a position of power. Unless they know that abuse of the Constitution will cost them that position, it’s not going to change. I go back to something Alexis de Toqueville wrote in 1834. Shortly after the States started giving up selection of the Presidential electors to popular election rather than appointment by the Legislatures, he observed that unless the American governments use more of the election by elected bodies the nation will “perish miserably on the shoals of Democracy.” If you listen you can hear the waves pounding on the rocks as we get closer and closer to those shoals.
So, there’s a way to get it changed, but as long as all we do is write and talk and complain and whine about what is going on in Washington, it’s not only not going to change, it will just keep getting worse. And that’s our biggest problem and sometimes my frustration boils over. We have several thousand reactive organizations out here all of whom are proud of how they can muster their membership to object and protest. Sometimes it works, sometimes it doesn’t. But in that whole mix I know of only two Proactive Organizations — “DownsizeDC” and Mine, “Restoring Our American Republic,” organizations that are actively working to change how they can conduct our business in order to get some control over them.
Dick Armey summed it up quite nicely when he reminded the Gingrich Republicans, “The people did not give us power, they gave us Responsibility.” Well, that sense of responsibility is ever more absent within the hallowed halls of Congress.
They seem to believe they have an absolute right to trample on our rights in whatever manner they choose. This was amply demonstrated by Senator Kennedy during the confirmation hearing for Chief Justice Roberts. In his position as a Circuit Judge, Roberts had overturned one of Kennedy’s favorite laws. This is not a direct quote, just a parphrase, but Kennedy, quite upset, said, “That law was passed by a HUGE majority of both houses, a HUGE majority. How could you even think it was unconstitutional.” And there you have it, the “We have the power and we’ll do whatever we decide we want to do” mindset of many Senators.
I’ll close this with an observation rendered by an anonymous author during the time the government in Iraq was struggling to put together a new constitution, he or she noted, “Why don’t we just give them ours. We’re not using it anymore.” There’s no reason why that should be. We can have constitutional government, but we’ll never have it again as long as people believe they are doing something about it when all they do is write and complain about how things are. And no one is going to come along to just hand it to us, we have to work for it.
As far as the 10th Amendment is concerned, long ago the Supreme Court thoroughly emasculated it by holding that unless the Constitution explicitly prohibits federal action, it’s okay. They strayed from that just a wee bit while Rehnquist was Chief Justice and may go a few steps further to restore it’s original meaning in the present makeup of the court.
I would like to reply directly to the posted article concerning the war. I’ll insert a different point of view and do invite comments.
In 1952, in French Indo China, (Vietnam) I came in contact with and spent a lot of time with and old man named Kay Sang. He was somewhere between 75 and 750 years old, and I wouldn’t bet on either end of the spectrum. He spoke nearly every language on earth.
He introduced me to what he called the Code of the Ancient Warriors. It’s a unique code of honor. I’ll try my best to convey the two parts and what the significance of it is to our current excursions into the Middle East.
As I said, the Code had two parts. The first part, simply stated, is, “No one has the right to take from another anything that belongs to the other.” Yes, it’s a variation of the golden rule, “Do unto others as you would have them do unto you.” When we apply the first part to material goods, it’s easy to understand, but material goods are not the primary objective of the code. Instead, it addresses itself to life, liberty and dignity. So, we can alter that to say “No one has the right to take someone’s life, liberty or dignity from them.”
The second part of the code is the kicker. It says,”when the warrior sees the code being violated he has an absolute duty to intervene, to fight, to the death if necessary, to prevent the transgression and must never, ever surrender.” In this code, there are two sins. 1. Failure to take action, and 2. Surrender.
His eyes were alight as he told me that my nation, the United States was the first and only Warrior nation that had emerged on earth. That we had demonstrated our aderence to the code in both World War II, Korea and other places before and after those two disastrous events.
I happen to subscribe to that definition of the United States and now we’re faced with a choice. We can be and continue to be the Warrior nation of the world as defined by Kay Sang or we can quit to become just a tired, old eagle with frayed feathers, dull talons and a broken beak.
What’s your choice?
Could not resist commenting. Congratulations Sterling…you appear to have succeeded in becoming victim to that which you oppose….just talking the talk. If you’re convictions are as strong as you purport…then it is time for you to walk the walk.
In short, you have yet to take any action other than talking about your plan. Have you begun to initiate action to have the 17th amendment repealed…rather than just suggesting it?
Granted, you added to the debate….but action with regard to amending or tinkering the constitution is no easy task.
If you firmly believe in what you posit, then take action.
War sucks. It is also something that we will never be rid of, I think, at least not for centuries. But to water it down, calling it military actions, takes away some of the horror of what war really is. Fighting remote wars with tools that take away the eye-to-eye, hand-to-hand combat experience does not help. It makes it seem like a game to our populace. Only the marines and soldiers in the thick of things know what it is really like… and the populace in the country hosting the conflict.
I think military actions should be drastically limited in size (troops) and scope. Attacking and occupying a foreign nation should be war and it needs to be voted on by congress.
Not one person has mentioned the War Powers Act. Technically, we’re not at war. It’s a Police Action. As in Nam, Korea, Iraq part 1…etc… The War Powers Act grants the executive use of force. The Congress can always limit the execs power through funding of wars and/or police actions.
Re John:
John, you’re quite mistaken. It doesn’t matter what you call it - police action, spreading freedom, regime change, war, or anything else.
The constitution, written under positive grant, only allows the federal government to engage in activities specifically authorized by the constitution. There is nothing, whatsoever, that allows the government to use the military to engage in battles without a declaration of war from Congress.
If the War powers act, or any other legislation, allows this - the law is unconstitutional in and of itself.
The Congress is not authorized by the constitution to legislate its power to another branch of government…this can only be done by a Constitutional Amendment.
I wish I had an answer to these posts. They are very thought provoking, but Sterling is right about walking the walk. I believe that writing does have an effect on outcomes, but that the right venues need to be used and those who know the populace is uniting need to see the power of the masses.
Therein lies the crux of the problem…getting the masses to show their power and force the government to be so nonchalant about war, immigration, poverty, insurance, oil, corporate abuse, healthcare, social security, taxation without representation, etc…and actually be held accountable. Ergo, more laws do not need to passed, but existing laws need to be followed and enforced.
The general public has become apathetic and no longer believe that they make a difference. They believe that the government is corrupted beyond what their vote can affect. They’ve lost respect for authority because it has just become a survival game. The code of the warrior has been lost to the bottom-line Capitalistic needs of our country.
So, how do we bring the revival of the code of the warrior back? I’m willing to speak up and die for my beliefs. But, who else is? And, if I speak up and die for my beliefs, is anyone going to care or follow? America doesn’t have a strong leader it will follow anymore. All the leaders have been exposed with flaws. How do we recapture the imagination of a nation that once had a dream of greatness and lived by example? I wish I knew what to do….
If you want to get involved and actually do something to help the people regain control of our government, check out and join the John Birch Society. That has been their sole purpose fore nearly 50 years. Before you make any assumptions about them based on what someone else has said or written about the society, read their own words and decide for yourself, if you dare.
I myself have said for the past 20 years, and I quote “This country wiped organized crime off the streets, it’s all in Washington now”. The problem is that there are no Statesmen in Washington. They are Political Whores to the media and special interest groups. Thomas Jefferson warned of such corruption in government. When you have life time congressmen of the likes of a Ted Kennedy and many others on both sides of the isle it’s time to end life long terms in office. End the stagnant policy making. Single term in office. Eliminate the lobby of our congress by any and all groups except tax paying citizens representing a group of citizens. This country is being sold for the sake of the almighty buck, even if it’s not worth much anymore. Bring back the religion in government so that wise decisions can be made based on sound moral eptitude.
ok, this is wrong, i dont know who wrote the article, but i didnt read the whole thing, i got to this part and had to say this, i dont know about truman or johnson, but bush and clinton both got the ok from congress, call me crazy, but i watch cspan on occasion
Re: Chad
Actually, Chad, the statement was absolutely correct. There has not been a Declaration of War from Congress since World War II.
Bush, Clinton, Johnson and the rest did NOT get a Congressional Declaration of war.
In regards to Iraq, for example, the Congress simply told the president that HE could make the choice between war or peace, as long as he reported back to congress afterwards.
This is not a declaration of war, but rather, a transfer of this Constitutionally-mandated power from Congress to the Executive Branch.
There’s nothing in the Constitution which authorizes any branch of government to transfer their power to another…
Not only did the president violate the constitution by accepting this transfer of power - but more importantly - every single member of Congress who voted to transfer their power violated the constitution as well.
The JBS is libertarian, I dare say, and that is not the attitude we need right now. Or ever, for that matter. Individualism, No. Individuality, Yes.
What about that cold war? Did we fight it? Should we have? Did we win it? Was it “declared”? Should it have been? geez, i got a medal for it.
What about all those other little things no one talks about…the paramilitary actions, the surreptitious overthrows, the proxies? You know. Guatamala, Iran, Argentina, Cuba, Angola, Nicaragua, etc.
“Humanitarian” military operations? Yugoslavia? Somalia?
“Rescue” operations? Grenada, Iran?
“Counter terrorism”? “Counter Drug”? “Requested Assistance- Foriegn Internal Defence”?
I’m not sure things are that cut-and-dry nowadays. Things seem more complicated 200 years after the Constitution. Do we need different tools in the toolbox beyond conventional, declared war? OTOH when you have sent the whole damn U.S. military to invade and occupy a sovereign country you’re pretty much fighting a real war by anyone’s definition. Seems like this situation of de facto presidential warmaking authority occurred not all at once, but gradually and by degree. Begining with the Cold War and accelarating out of control after that ended, with no more international opposition able to contain our President’s military venturism.
Should there be a “threshold”…Presidential power for limited military action…up to a certain time limit, troop limit, dollar limit? I think I remember Regan coming up against some kind of emergency action time limit in Beirut. 60 days, was it?
As much as there is so much to say as to all the circumstances and debatable legality of the Iraq War, the solution to the Iraq war and the coming war with Iran is within and should be the focus on the violations of The Constitution and the assault upon our very system of government and even now national sovereignty..!
When Nancy Pelosi declared Impeachment is off the table or out of the question she took it upon herself to suspend the U.S. Constitution and deny access to it for all Democrats and independents..and even those few republicans who have a greater loyalty to the Constitution than the Bush Family Mafia..
Have there been Impeachable acts committed by Bush, Cheney, Gonzales, Bartlett et al, should be the only question which determines if Impeachment hears should be commenced..
Now we see with the signing of NSPD-51 and HSPD-20 the realization of the true pending Dictatorship and not one word yet from Congress any of them..!
This is outrageous have they no opinion on this, are they unaware of the potential to change America forever if this plot if hatched and enacted..?
While many of you are arguing about Iraq it is America that is under attack from within, by the Federalist Society and those sycophants who will say anything to garner power for themselves and are more than willing to under mine and betray the great American experiment, such as Alito, Chertoff, Scalia, Thomas, Roberts, Kennedy, Barlett, Hadley, Krystal and so many others who never believed in or appreciated how beautiful and fragile and special this design and experiment of America is was and has been..!
They are elitists who wish to be that elite they are the American Polit Bureau..!
Just as it has been pointed out the Republicans have become more and more Soviet with their loyalty to party over country..!
For me I say trust no one that is an elected Federal official from the lowliest Congressman to the highest ranking Senator or the Executive Branch of course either..!
“The games afoot..!” With their failure to even acknowledge this plot and threat to our very system of government and their choice to act as if nothing has changed they are a part of this betrayal and all to aware that it is looming over our heads now and thus inevitable that Dictatorship will be inflicted upon America and huge War that makes Iraq look like the pre-game show which is what it is..!
Brzenski and Pat Buchanan as I picked up immediately upon Nicholas Burns comments as well as that scum Leibershit’s as well that we will go to ruinous huge full scale insane war with Iran long before the next 18 months and George Bush’s terrible tenure ever ends if it does as if you really read NSPD-51 or NSPD-20 there is no guarantee there even will be elections in 2008 to replace him..!
War with Iran will not be limited to a strategic attack based upon any excuse as justifiable as it may be or arguable, it will ignite a huge conflagration that will end with a change in the balance of power in the world, (nor limited to just American and Iran), and the ruin of America as the supreme power and also not protect America but put it ever more in danger as these would be Tyrants seems to prefer..!
We must fight and make as much noise as possible till our suspect Congress is forced to acknowledge and either defend to reject this dangerous plot of NSPD-51 and HSPD-20 which will lead to tyranny here and huge wasteful war overseas and here as well, with likely terror and attacks here on our streets, as Bush has allowed Hezzbullah to storm over our borders at will for the last 6 years, and how many of other groups prepared to act as well..?
We don’t know as Bush and Chertoff and Cheney and Gonzales desired..!
re TJ Colatrella plus NSPD-51 and NSPD-20. Quite frankly, I fail to see the “problem.” I read them, and read them again. These are no different from preparedness direcctives that have been commonplace since the birth of the nation. These fall in the same category as the preparation of “what if” scenarios for war against one nation or another, even includes Switzerland. However, there is a possibility that I missed something of importance. If you would care to point out and perhaps reproduce the specific portions that are causing you such apparent concerns, it will make it a lot easier for us to respond.
[...] So what happens after that? It seems pretty obvious in the age of the “war on terror” doesn’t it? I, like many others, can’t help but expect this to end up in yet another, undeclared, unconstitutional war. (see overviews of war powers and the constitution here, here and here) [...]
I suggest some of you read the history books a little more. The constitution says that only congress can declare war. It does not say that war has to be declared everytime a conflict happens, nor does it specify what constitutes a declaration of war.
Ironic that someone quotes jefferson, since he sent US forces into conflict abroad without any declaration of war from Congress.