See other War, War, War Articles
Title: Violating the Constitution With an Illegal War
Source:
http://www.lewrockwell.com
URL Source: http://www.lewrockwell.com/paul/paul57.html
Published: Oct 3, 2002
Author: Rep. Ron Paul, MD
Post Date: 2007-04-03 20:34:01 by robin
Keywords: None
Views: 5322
Comments: 267
Ron Paul in the US House of Representatives, October 3, 2002 The last time Congress declared war was on December 11, 1941, against Germany in response to its formal declaration of war against the United States. This was accomplished with wording that took less than one-third of a page, without any nitpicking arguments over precise language, yet it was a clear declaration of who the enemy was and what had to be done. And in three-and-a-half years, this was accomplished. A similar resolve came from the declaration of war against Japan three days earlier. Likewise, a clear-cut victory was achieved against Japan. Many Americans have been forced into war since that time on numerous occasions, with no congressional declaration of war and with essentially no victories. Today’s world political condition is as chaotic as ever. We’re still in Korea and we’re still fighting the Persian Gulf War that started in 1990. The process by which we’ve entered wars over the past 57 years, and the inconclusive results of each war since that time, are obviously related to Congress’ abdication of its responsibility regarding war, given to it by Article I Section 8 of the Constitution. Congress has either ignored its responsibility entirely over these years, or transferred the war power to the executive branch by a near majority vote of its Members, without consideration of it by the states as an amendment required by the Constitution. Congress is about to circumvent the Constitution and avoid the tough decision of whether war should be declared by transferring this monumental decision-making power regarding war to the President. Once again, the process is being abused. Odds are, since a clear-cut decision and commitment by the people through their representatives are not being made, the results will be as murky as before. We will be required to follow the confusing dictates of the UN, since that is where the ultimate authority to invade Iraq is coming from – rather than from the American people and the U.S. Constitution. Controversial language is being hotly debated in an effort to satisfy political constituencies and for Congress to avoid responsibility of whether to go to war. So far the proposed resolution never mentions war, only empowering the President to use force at his will to bring about peace. Rather strange language indeed! A declaration of war limits the presidential powers, narrows the focus, and implies a precise end point to the conflict. A declaration of war makes Congress assume the responsibilities directed by the Constitution for this very important decision, rather than assume that if the major decision is left to the President and a poor result occurs, it will be his fault, not that of Congress. Hiding behind the transfer of the war power to the executive through the War Powers Resolution of 1973 will hardly suffice. However, the modern way we go to war is even more complex and deceptive. We must also write language that satisfies the UN and all our allies. Congress gladly transfers the legislative prerogatives to declare war to the President, and the legislative and the executive branch both acquiesce in transferring our sovereign rights to the UN, an un-elected international government. No wonder the language of the resolution grows in length and incorporates justification for starting this war by citing UN Resolutions. In order to get more of what we want from the United Nations, we rejoined UNESCO, which Ronald Reagan had bravely gotten us out of, and promised millions of dollars of U.S. taxpayer support to run this international agency started by Sir Julian Huxley. In addition, we read of promises by our administration that once we control Iraqi oil, it will be available for allies like France and Russia, who have been reluctant to join our efforts. What a difference from the days when a declaration of war was clean and precise and accomplished by a responsible Congress and an informed people! A great irony of all this is that the United Nations Charter doesn’t permit declaring war, especially against a nation that has been in a state of peace for 12 years. The UN can only declare peace. Remember, it wasn’t a war in Korea; it was only a police action to bring about peace. But at least in Korea and Vietnam there was fighting going on, so it was a bit easier to stretch the language than it is today regarding Iraq. Since Iraq doesn’t even have an Air Force or a Navy, is incapable of waging a war, and remains defenseless against the overwhelming powers of the United States and the British, it’s difficult to claim that we’re going into Iraq to restore peace. History will eventually show that if we launch this attack the real victims will be the innocent Iraqi civilians who despise Saddam Hussein and are terrified of the coming bombs that will destroy their cities. The greatest beneficiaries of the attack may well be Osama bin Ladin and the al Qaeda. Some in the media have already suggested that the al Qaeda may be encouraging the whole event. Unintended consequences will occur – what will come from this attack is still entirely unknown. It’s a well-known fact that the al Qaeda are not allies of Saddam Hussein and despise the secularization and partial westernization of Iraqi culture. They would welcome the chaos that’s about to come. This will give them a chance to influence post-Saddam Hussein Iraq. The attack, many believe, will confirm to the Arab world that indeed the Christian West has once again attacked the Muslim East, providing radical fundamentalists a tremendous boost for recruitment. An up or down vote on declaring war against Iraq would not pass the Congress, and the President has no intention of asking for it. This is unfortunate, because if the process were carried out in a constitutional fashion, the American people and the U.S. Congress would vote "No" on assuming responsibility for this war. Not only is it sad that we have gone so far astray from our Constitution, but it’s also dangerous for world peace and threatens our liberties here at home. Dr. Ron Paul is a Republican member of Congress from Texas. 
Transferring authority to wage war, calling it permission to use force to fight for peace in order to satisfy the UN Charter, which replaces the Article I, Section 8 war power provision, is about as close to 1984 "newspeak" that we will ever get in the real world.
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#1. To: robin, ALL (#0)
Can anyone point out to me the form that the Constitution says a declaration of war must have?
The Constitution gives the power to declare war to the Congress. They formally declare something like, "the state of war between the United States and ... is hereby formally declared." It is not a difficult concept once you get the hang of it. For Japan, the precise language was, "the state of war between the United states and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared...." For Germany, the precise language was, "the state of war between the United States and the Government of Germany, which has thus been thrust upon the United states, is hereby formally declared...." For Italy, the precise language was, "the state of war between the United States and the Government of Italy which has thus been thrust upon the United States is hereby formally declared...." Below is how the declaration of war against Germany went through each house of congress. http://www.ibiblio.org/pha/77-1-148/77-1-148.html [IN THE SENATE] DECLARATION OF STATE OF WAR WITH GERMANY Mr. Connally, from the Committee on Foreign Relations, reported an original joint resolution (S. J. Res. 119) declaring that a state of war exists between the Government of Germany and the Government and the people of the United States, and making provision to prosecute the same, which was read the first time by its title, and the second time at length, as follows: "Resolved, etc., That the state of war between the United States and the Government of Germany, which has thus been thrust upon the United states, is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Government of Germany; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States." I am authorized by the Committee on Foreign Relations to say to the Senate that after consideration of the text of the joint resolution which I have reported and after mature consideration of all aspects of this matter, the membership of the Committee on Foreign Relations unanimously approve and agree to the course suggested. One member of the committee was absent, but I have authority to express his views. Mr. President, I ask unanimous consent for the present consideration of the joint resolution. The VICE PRESIDENT. Is there objection? There being no objection, the Senate proceeded to consider the joint resolution (S. J. Res. 119) declaring that a state of war exists between the Government of Germany and the Government and the people of the United States, and making provision to prosecute the same. The VICE PRESIDENT. The question is on the engrossment and third reading of the joint resolution. The joint resolution was ordered to be engrossed for a third reading, and was read the third time. The VICE PRESIDENT. The joint resolution having been read the third time, the question is, Shall it pass? Mr. CONNALLY. On that question I ask for the yeas and nays. The yeas and nays were ordered, and the Chief Clerk proceeded to call the roll. The result was announced yeas 88, nays 0. * * * * * * So the joint resolution (S. J. Res. 119) was passed. =========================== [IN THE HOUSE] DECLARATION OF WAR AGAINST GERMANY Mr. MCCORMACK. Mr. Speaker, I move to suspend the rules and pass House Joint Resolution 256, which I send to the desk and ask to have read. The Clerk read as follows. "Resolved, etc., That the state of war between the United States and the Government of Germany which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Government of Germany; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States." Mr. MCCORMACK. Mr. Speaker, on that I demand the yeas and nays. The yeas and nays were ordered. * * * * * * The question was taken; and there were yeas 393, answered "present" 1, not voting 36. So (two-thirds having voted in favor thereof) the rules were suspended, and the resolution was agreed to. ==========================
It doesn't require that language ANYWHERE in the Constitution or US law.
The Constitution gives to the CONGRESS the power to declare war. They may do with any wording of their choosing as long as the chosen wording declares war. ---------- U.S. Supreme Court "The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this inquiry. It is not denied, nor in the course of the argument has it been denied, that congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed." ---------- U.S. Supreme Court DOUGLAS J., joined by BLACK J, concurring: "But the war power stems from a declaration of war. The Constitution by Art. I, 8, gives Congress, not the President, power '[t]o declare War.' Nowhere are presidential wars authorized. We need not decide therefore what leveling effect the war power of Congress might have." ---------- Federalist #69 - Hamilton "The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union." "The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies -- all which, by the Constitution under consideration, would appertain to the legislature." ---------- Federalist #41 - Madison "That we may form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the Union; and that this may be the more conveniently done they may be reduced into different classes as they relate to the following different objects: 1. Security against foreign danger; 2. Regulation of the intercourse with foreign nations; 3. Maintenance of harmony and proper intercourse among the States; 4. Certain miscellaneous objects of general utility; 5. Restraint of the States from certain injurious acts; 6. Provisions for giving due efficacy to all these powers. "The powers falling within the first class are those of declaring war and granting letters of marque; of providing armies and fleets; of regulating and calling forth the militia; of levying and borrowing money. "Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the American Union. The powers requisite for attaining it must be effectually confided to the federal councils. "Is the power of declaring war necessary? No man will answer this question in the negative. It would be superfluous, therefore, to enter into a proof of the affirmative. The existing Confederation establishes this power in the most ample form." ---------- Cornell Law School In the early draft of the Constitution presented to the Convention by its Committee of Detail, Congress was empowered "to make war." [1412] Although there were solitary suggestions that the power should better be vested in the President alone, [1413] in the Senate[p.308]alone, [1414] or in the President and the Senate, [1415] the sentiment of the Convention, as best we can determine from the limited notes of the proceedings, was that the potentially momentous consequences of initiating armed hostilities should be called up only by the concurrence of the President and both Houses of Congress. [1416] In contrast to the English system, the Framers did not want the wealth and blood of the Nation committed by the decision of a single individual; [1417] in contrast to the Articles of Confederation, they did not wish to forego entirely the advantages of executive efficiency nor to entrust the matter solely to a branch so close to popular passions. [1418] The result of these conflicting considerations was that the Convention amended the clause so as to give Congress the power to "declare war." [1419] Although this change could be read to give Congress the mere formal function of recognizing a state of hostilities, in the context of the Convention proceedings it appears more likely the change was intended to insure that the President was empowered to repel sudden attacks [1420] without awaiting congressional action and to make clear that the conduct of war was vested exclusively in the President. [1421] An early controversy revolved about the issue of the President’s powers and the necessity of congressional action when hostilities are initiated against us rather than the Nation instituting armed conflict. The Bey of Tripoli, in the course of attempting to extort payment for not molesting United States shipping, declared war upon the United States, and a debate began whether Congress had to enact a formal declaration of war to create a legal status of war. President Jefferson sent a squadron of frigates to the Mediterranean to protect our ships but limited its mission to defense in the narrowest sense of the term. Attacked by a Tripolitan cruiser, one of the frigates subdued it, disarmed it, and, pursuant to instructions, released it. Jefferson in a message to Congress announced his actions as in compliance with constitutional limitations on his authority in the absence of a declaration of war. [1422] Hamilton espoused a different interpretation, contending that the Constitution vested in Congress the power to initiate war but that when another nation made war upon the United States we were already in a state of war and no declaration by Congress was needed. [1423] Congress thereafter enacted a statute authorizing the President to instruct the commanders of armed vessels of the United States to seize all vessels and goods of the Bey of Tripoli "and also to cause to be done all such other acts of precaution or hostility as the state of war will justify..." [1424] But no formal declaration of war was passed, Congress apparently accepting Hamilton’s view. [1425] Footnotes 1412 2 M. Farrand, The Records of the Federal Convention of 1787 (New Haven: rev. ed. 1937), 313.
NOWHERE does it say the wording must say "declare war". And it looks like Congress and the Supreme Court agree. By the way, did you know that the law passed by Congress authorizing the use of military force in Iraq even mentioned the word WAR?
It says Congress has the authority "To declare war." They could declare that BAC deposits a lot of poop on the internet but it would not have the same legal effect. Even should all members of the United Nations recognize such declaration as a universal truth, it is unlikely any would recognize it as a Declaration of War. A Declaration of War creates a state of war upon its issuance. The named enemy would have every right, under the laws of war, to kill our uniformed military personnel, and to sink our ships, and to wage war against the United States generally. An Authorization to Use Military Force does -NOT- create a state of war upon its issuance. The state of war is created by the use of military force, not the authorization to use it.
lol. it would be factual though!
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#34. To: BeAChooser, robin (#1)
Can anyone point out to me the form that the Constitution says a declaration of war must have?
"Whereas the Government of Germany has formally declared war against the Government and the people of the United States of America: Therefore be it
Mr. CONNALLY. Mr. President, I shall presently ask unanimous consent for the immediate consideration of the joint resolution just read to the Senate. Before the request is submitted, however, I desire to say that, being advised of the declaration of war upon the United States by the Governments of Germany and Italy, and anticipating a message by the President of the United States in relation thereto, and after a conference with the Secretary of State, as chairman of the Committee on Foreign Relations, I called a meeting of the committee this morning and submitted to the committee the course I expected to pursue as chairman and the request which I expected to make. "Whereas the Government of Germany has formally declared war against the Government and the people of the United States of America: Therefore be it
The SPEAKER. The question is, Will the House suspend the rules and pass the joint resolution?
#48. To: nolu_chan, ALL (#34)
They formally declare something like, "the state of war between the United States and ... is hereby formally declared."
#56. To: BeAChooser (#48)
It doesn't require that language ANYWHERE in the Constitution or US law.
TALBOT v. SEEMAN, 5 U.S. 1 (1801)
NEW YORK TIMES CO. v. UNITED STATES, 403 U.S. 713 (1971)
Legal Information Institute
Congressional Research Service Annotated Constitution Declaration of War
----------
1413 Mr. Butler favored "vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it." Id., 318.
1414 Mr. Pinkney thought the House was too numerous for such deliberations but that the Senate would be more capable of a proper resolution and more acquainted with foreign affairs. Additionally, with the States equally represented in the Senate, the interests of all would be safeguarded. Ibid. 1415 Hamilton’s plan provided that the President was "to make war or peace, with the advice of the senate..." 1 id., 300.
1416 2 id., 318–319. In The Federalist, No. 69 (J. Cooke ed. 1961), 465, Hamilton notes: "[T]he President is to be commander–in– chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies,—all which, by the Constitution under consideration, would appertain to the legislature." (Emphasis in original). And see id., No. 26, 164–171. Cf. C. Berdahl, War Powers of the Executive in the United States (Urbana, Ill.: 1921), ch. V.
1417 The Federalist, No. 69 (J. Cooke ed. 1961), 464–465, 470. During the Convention, Gerry remarked that he "never expected to hear in a republic a motion to empower the Executive alone to declare war." 2 M. Farrand, The Records of the Federal Convention of 1787 (New Haven: rev. ed. 1937), 318.
1418 The Articles of Confederation vested powers with regard to foreign relations in the Congress.
1419 2 M. Farrand, The Records of the Federal Convention of 1787 (New Haven: rev. ed. 1937), 318–319.
1420 Jointly introducing the amendment to substitute "declare" for "make," Madison and Gerry noted the change would "leav[e] to the Executive the power to repel sudden attacks." Id., 318.
1421 Connecticut originally voted against the amendment to substitute "declare" for "make" but "on the remark by Mr. King that ‘make’ war might be understood to ‘conduct’ it which was an Executive function, Mr. Ellsworth gave up his opposition, and the vote of Connecticut was changed...." Id., 319. The contemporary and subsequent judicial interpretation was to the understanding set out in the text. Cf. Talbot v. Seeman, 1 Cr. (5 U.S.), 1, 28 (1801) (Chief Justice Marshall: "The whole powers of war being, by the Constitution of the United States, vested in congress, the acts of that body alone can be resorted to as our guides in this inquiry."); Ex parte Milligan, 4 Wall. (71 U.S.) 2, 139 (1866).
1422 Messages and Papers of the Presidents, J. Richardson ed. (Washington: 1896), 326, 327.
1423 7 Works of Alexander Hamilton, J. Hamilton ed. (New York: 1851), 746–747.
1424 2 Stat. 129, 130 (1802) (emphasis supplied).
1425 Of course, Congress need not declare war in the all–out sense; it may provide for a limited war which, it may be, the 1802 statute recognized. Cf. Bas v. Tingy, 4 Dall. (4 U.S.) 37 (1800).
#63. To: nolu_chan (#56)
The Constitution gives to the CONGRESS the power to declare war. They may do with any wording of their choosing as long as the chosen wording declares war.
#66. To: BeAChooser (#63)
NOWHERE does it say the wording must say "declare war".
#68. To: nolu_chan (#66)
They could declare that BAC deposits a lot of poop on the internet but it would not have the same legal effect.
Replies to Comment # 68.