Posted on 09/26/2004 10:16:55 PM PDT by churchillbuff
As a child I was taught to take the Constitution seriously. Some in my community asserted that it was a divinely inspired document which should be respected, revered and followed. After all, the creators of that document were persons of experience, learning and wisdom who had thought deeply about how government should be structured and how power should be divided. As a U.S. district judge, I have admired and cherished their history-tested insights. I speak here, however, as a citizen and only for myself.
The framers, with their bitter experience of colonial status, their natural mistrust of undue power in the hands of one man, deliberately fractured governmental power into three great departments - legislative, executive and judicial - each to balance or check the power of the other. Miraculously, that fundamental structure has endured for more than 200 years.
In the allocation of governmental power, the founders placed the power to declare war in the legislative branch. The words of the Constitution are plain. Section 8 of Article 1 says, "Congress shall have the power . . . to declare war . . . ." They did this deliberately and with full appreciation of the hard lessons of history, particularly British, French, Roman and Greek history. The design was to limit the power of one man to take the nation into war. They taught that the decision to start a war, and the inevitable cost in lives and treasure, foreseen and unforeseen, required that the nation make such a critical decision through its representatives in Congress, and to announce such group decision by a declaration.
The president has no power to declare war. The judiciary has no power to declare war. The legislative branch, and it alone, has the power to declare war. To date, the Congress has not declared war against anyone, including Iraq. Yet the president calls himself a wartime president. The Congress has funded a war, off budget, that has yet to be declared. The failure to declare implicates international treaties and agreements, including how we treat prisoners. Nowhere in that hallowed document, the Constitution, do we find that the president may declare war.
In 2002, the Congress passed a resolution which in effect delegated to the president the power to make war: "3. (a) AUTHORIZATION. - The president is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to - (1) defend the national security of the United States against the continuing threat posed by Iraq . . . ."
Nowhere in the venerable document do we find the power of the Congress to delegate its responsibility to another, president or not. The Congress cannot amend the Constitution by legislation or resolution. One of the reasons for removing such a critical decision from one man was to slow the process down, to enable those charged with the responsibility for decision to examine with care the reasons, the facts supporting such a decision, and to make sure that the facts that drive the conclusion to start a war are real, not illusory.
By delegating the decision to the president and thus avoiding its responsibility, the Congress skipped that careful process and relied upon others to make an examination of the underlying facts and reasons - which now appear, with belated, after-the-fact examination, to be thin, flawed, or nonexistent.
It is elementary that the power to conduct a war, which is the responsibility of the president as the commander in chief, is different than the power to start a war, which under the Constitution is the responsibility of the Congress. Some may point to "precedent" that in the past some presidents have indeed acted contrary to the Constitution and the Congress let them get away with it. On occasion the members of Congress have been complicit in abdicating their responsibilities under the Constitution.
But their historic actions in no way obliterate the words and the wisdom of the document. The people are owed "due process" in a different sense than usually employed; that is to say, a congressional process which carefully and completely examines the factual footing for making a momentous and far-reaching decision on whether we should or should not initiate a war. And if Congress decides we should, the Congress must have the courage to declare that decision to all the world with a specified and named foreign state in mind.
The Congress should then be prepared to defend such a decision and be answerable therefore, including the consequences which flow therefrom, including the cost in lives and public treasure. Absent that, the people are shortchanged by their congressional representatives and as a result appear to have been victimized by an executive process which, at this point, seems to have been wanting in care and in depth.
I have long wondered about the failure of the press and other media to examine the war power clause in any depth within the context of our current state of affairs. I have long lamented that the avowed "strict constructionists" are leading the charge of those who would ignore the plain language of the Constitution. The founders were long on brains and experience. An imperial presidency was dangerous and they knew it. That's the very reason they built in a constitutional check to guard against it. To our sorrow it goes ignored. We reap the whirlwind.
--- U.S. Senior District Judge Bruce S. Jenkins has served 26 years on the federal bench in Salt Lake City.
The Constitution also does not prescribe the exact wording that must be used in a Declaration of War. Congress authorizing the president to use force fits the requirement just fine, as far as I'm concerned.
The judiciary does not have the power to legislate from the bench, either. Last I saw, that was still continuing unabated.
Congress authorized President Bush to act. Deal with it, Judge.
A funny thing happened on the way to Iraq. These bad guys, let's call them "terrorists", came over here and MURDERED 3000 of our fellow American citizens. I don't know about you, but I'd say they declared WAR on us. Wait, wait...here's the punchline. Congress failed to uphold it's Constitutional responsibility. That's all. So if you have a problem with the fact that we are in an "undeclared war", then take it up with Congress.
Found another dead horse to beat I see.
Good point: that's how too many people - including some who call themselves "conservatives" -- regard the Constitution, as a dead horse.
"In the allocation of governmental power, the founders placed the power to declare war in the legislative branch."
Uh, was this supplanted by Executive Order or did Congress cough up it's rights? Nothing stated on the specifics of the Act, which is limited in scope. Also, we live in the nuclear age and things move a little quicker than for Kerry & Co. to convene in a special session to vote to war against their friends...
What's funny is to raise the issue over the Iraq war in particular, when the Serbia war was a much worse case. Compared to the way we made war on Serbia, the Iraq war was a million times more constitutional.
Gee, I guess that's why President Bush went through all of the trouble of getting authorization from Congress before going into Iraq, huh? Hint: John Kerry voted for it, too!
Congress authorized the president to use force and the president used force. Your constitutional problem here is?
So if and when Congress shirks it's duty, all right thinking people should just wait for the terrorists to kill again? How about you offer a solution, if you think there is a problem here. I honor the Constitution as the perfect, inspired document that it is, but I will not stand by and watch it become meaningless by those who refuse to act upon it. If we don't fight and win this "illegal war", then the Constitution will not be worth the paper it's written on because it will be replaced by Sharia.
Sadly, they are not all Democrats. We have quite a few isolationists right here in our own party.
For those who have just had a few tokes, thoughts of the dangers of defending our country is really scary immediately after the initial paranoia sets in, no?
...you know what I enjoy? ...the way Kerry's anti-defense cowards get so puffed-up and start ranting and raving beside the real point in these arguments--their personal feelings about being in dangerous situations.
The US military has been involved in a great many "wars." If you count the various Indian wars, the number of military conflicts probably numbers in the hundreds.
As far as I know, Congress formally declared war in only 6 of them: Revolution, 1812, Mexican, Spanish-American, WWI, and WWII.
In by far the bloodiest war ever fought by Americans, the WBTS, Congress never formally declared war, for the obvious reason that Congress refused to recognize the Confederacy as a legitimate entity by doing so.
Good one. LOL Wish I'd said that.
Perhaps the "congress never declared war so it's unconstitutional" crowd would be happier if they could require congress only authorize the war on official 'declaration of war' stationary available at office max.
But if they want to require that the declaration be worded in a specific way to make them happy, then THEY would have to be the ones to change the constitution. Because the constitution only determines WHO can declare war, not HOW it is declared.
And this idiot is a judge! Probably believes in emanations and penumbras.
Bush singlehandedly ended "checks and balances" and now he's a fascist dictator. Congress has no powers now. (/DUSpeak)
Exactly. He went to Congress, and they gave him the green light. It's not as if our Congressmen showed up to work one day and said, 'Hey, did you guys see CNN last night? All they played was six hours of tanks driving across some desert. What do you think that's all about?'
That whole election thing is propaganda to confuse the public that he really isn't the true dictator of the world...
Well Kerry would, seeing he hasn't seen the inside of the Capitol in many months.
Oh, you again. What a surprise.
The author is an ignoramus.
http://www.freerepublic.com/focus/f-news/1228010/posts
You think this one is good, he's got an editorial about an editorial about leaving Iraq on this thread.
Piling on in this case might be appropriate though. Let's cut to the chase. I am not aware if Congress has never declared a war in our history (I think they all ran off in 1812 and left Dolly Madison alone in DC, but I digress...) but in recent times (post Korea) Congress has been loathe to declare war, since then a good number of them would be subject to the charges and penalties of treason also well and clearly defined and spelled out in that very same Constitution that this numbn**z so glibly cites.
Most reasonable people agree.
Aw, jeez, Rabble, now they're gonna start piling on you for being a traitor too.
I, too, would have liked to see this war be a more pointedly declared one, as I'm pretty sure neither Afghanistan nor Iraq had any treaty obliging some other country to defend it. And it sure would have been nice to have other countries morally obliged to join us. But it's not like the declaration was unclear. It just didn't say 'we pick YOU to fight a war with,' for the fundamental reason that terrorists threatening the U.S. ain't just in country X and Y.
On the other hand, I don't see this war as one we as a country have wholly committed to, and I hope that Dubya does so after November. We haven't mobilized a draft. We have a lot of reserve units up, but we still have a ton of armed forces holding down the fort at locations that aren't necessarily important militarily. There are more than a few bases that should have been closed years ago. And I don't remember getting a ration coupon in the mail yesterday. So other than the constant harping about casualties from the media, it's not like we're totally at war, at least, we're not totally dedicated to it as a nation.
We really ought to be, if we're going to fight terrorism. I'm tired of feeling like the only fights America is allowed to have are the ones with liberals tying our hands behind our backs and our troops fighting 'enemies' we simply shouldn't care about fighting (See also Yugoslavia and Haiti).
Why am I not surprised?
In his 2000 Convention speech Bush said there was "an angel in the whirlwind."
Check! LOL
You could have knocked me over with a forklift.
The poster of this article may shove his hot dog into his own bun.
Well put - - - and courageously said, too - - because that kind of talk will get you flamed around here!
Still at it,churchy?
Ahem, Bush never even asked Congress to consider a declaration of war, so your hypothesis of a filibuster is just that - hypothesis. Under the Constitution, Bush should have asked Congress to declare war, as FDR did in WWII and Wilson did in WWI.
1) War of 1812
2) War of the Northern Aggression (sometimes called the ''Civil War'')
3) Spanish-American War
4) World War One
5) World War Two.
Mr. Polk sought a declaration of war from the Congress in the Mexican-American War, but never received one.
Notwithstanding, and including the numerous Indian Wars, the United States has deployed its sundry armed forces into combat on approximately 212 separate occasions, beginning with the raids against the Barbary pirates.
DU TROLL?
With all due respect, this Judge appears to be ignorant of the actual case law on this point. It was resolved against his view by the Supreme Court in our early days. But then it is not unusual to find federal judges who think that the law began during the presidency of FDR.
Sorry, Your Honor, the War is already over.. You're too late with your objections..
But,but,buuuuuuuut...you LIVE for being "flamed".
Blah, blah, blah...so sue him.
Not hardly. Democrats don't believe in the Constitution. One of the reasons I'm a Republican is because I do.
Article I, Section 8, ...
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
The authorization given by Congress is reasonably responsive to the above listed powers granted by theConstitution.
3. (a) AUTHORIZATION. - The president is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to - (1) defend the national security of the United States against the continuing threat posed by Iraq . . . ."
"Wait, wait...here's the punchline. Congress failed to uphold it's Constitutional responsibility. "
I recall seeing signs calling for Bush to declare war on *afghanistan* (the country most associated with the terrorists responsible for the 9/11/01 attacks) the same night the attacks took place. Bush could have asked for such a declaration and been certain to receive it. He didn't. Of course, the fact the US no longer declares war to go to war isn't news, as the last time was WWII despite numerous real WARS since then.
Does anyone know if FDR actually formally asked congress to declare war on japan after 12/7/41 attack, or if congress did so with no such request?
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