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Presidential War Is Unconstitutional

by Paul Rockwell
Oakland, California

“War,” said James Madison, asking Congress for a declaration in 1812, “is a solemn question which the Constitution wisely confides in the legislative department of the government.”

No constitution can be accounted wise if it makes war easy. Therefore, the U.S. Constitution makes war formal. No matter how docile Congress may become, how imperial the modern presidency may seem, presidential war is unconstitutional. As the clouds of preemptive war gather over the Middle East, President Bush has already circumvented the clear, lofty language of the Constitution: “Congress shall have the power to declare war.”

How easily we forget that the doctrine of preemptive war -- a doctrine integral to the ideology of fascism in the 1930s -- was explicitly repudiated at Nuremberg. As a presiding Judge at the Nuremberg Trials between 1945 and 1949, U.S. Supreme Court Justice Jackson wrote: “War is utterly renounced and condemned as an instrument of policy.” The Nuremberg Trials were influenced, not only by the lofty ideals of the enlightenment, but by the sagacious principles of James Madison. In the U.S. Constitution, war does not fall under foreign policy; it falls under law.

Justice Jackson addressed the constitutional issue of undeclared war in 1952, when President Harry S. Truman directed the secretary of commerce to take over most of the nation’s steel mills to fulfill the needs of the Korean War. The Supreme Court ruled that a president, whatever emergencies he may declare, cannot take over private industry or private property without a formal declaration of war. Concurring Justice Robert Jackson wrote: “No penance would ever expiate the sin against free government of holding that a president can escape control of executive powers by law through assuming his military role ... . It is not a military prerogative, without support of law, to seize persons or property because they are important or even essential for the military and naval establishments.”

For the authors of the Constitution, the solemnity of war and respect for the opinions of mankind required open declaration. Even the war for independence was proclaimed in a Declaration of Independence.” In the constitutional sense,” as Justice William O. Douglas put it, “a foreign nation is not an enemy until and unless war has been declared against it.”

The framers of the Constitution did not believe in ex post facto consent; nor did they give Congress a petty power to hem, haw, whine and weasel. Blank-check presidential, discretionary wars are not part of the U.S. Constitution.

The framers of the Constitution deliberately outlawed presidential war. At the Constitutional Convention the framers were confronted with three options regarding war: war declared by the President, war declared by the Senate, and war declared by the entire Congress. Hamilton’s draft of the Constitution, handed to Madison in 1789, read: “The Senate shall exclusively possess the power of declaring war ... .” In the Federalist Papers he recounted the history of kingly power in making wars, and he praised those subjects who attempted to “abolish the exercise of so dangerous an authority.” Even to the anti-populist Federalists, war was a formal, solemn legislative matter.

The fear of standing armies, the fear of rulers who might abuse their power, shaped much of the Constitution. For centuries, rulers had squandered the wealth of nations in expeditions to foreign lands, hiding their own mistakes with the shroud of war. For centuries the tyrants of Greece, the Caesars of Rome, and the princes of Europe cheated their nations into war, using war itself to persuade the people that war was necessary. For centuries, war had been an instrument of vanity, ambition and empire. For centuries the rulers of “republics” used the cry of foreign policy to overturn domestic right, submitting life and liberty to the alteration of a map.

Reflecting on the history of ruined peoples, the authors of the Constitution wrote: “Congress shall have the power to declare war.”

The framers of the Constitution, it is true, assumed that a president could repel sudden attacks upon Americans, or more exactly, that Americans could repel attacks upon themselves. During the term of President Jefferson, American ships were attacked by Tripoli pirates. Jefferson sent a message to Congress on Dec. 8, 1801, asking sanction from Congress to “go beyond the line of defense.” In response, Alexander Hamilton reasoned that Americans under direct attack are at war ipso facto. But in this incident -- often misinterpreted by presidential hawks -- neither Jefferson nor Hamilton expected the president, without formal declaration from Congress, to enter into foreign wars, or to intervene in conflicts between other nations. The skirmishes in the early days of the Union only illustrate that the Fathers were jealous of any arbitrary use of power to deal with foreign hostilities.

The president is commander-in-chief of the armed forces. In the Constitution, however, the power of command does not imply any power to enact. It implies the opposite. With the separation of powers, the constitutionalists reasoned that the power to execute a war entails the absence of the power to bring it into being.

An act of war is equivalent to an act of law, not only because the issue is one of life and death, but because the state of war is legally different from the state of peace. Deeds considered benevolent in a state of peace are “treason” in a state of war; an unfriendly nation in peacetime is different from a declared enemy in war. Treaties change their meanings according to formal hostilities. Corporations, such as big oil companies, that greedily raise their prices in peacetime, may be nationalized in war. War is a national, collective emergency. Profits can be taxed, profiteering outlawed.

Upon these considerations alone, every soldier, every civilian and ally has a right to know the state of the Union. And only the lawmakers can tell them. Without a declaration of war, throwing Americans into battle in the Middle East violates the social contract that makes us one nation.

Paul Rockwell is a writer in the Bay Area

Published in In Motion Magazine March 15, 2003.

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