Read More Related Commentary Here:
http://www.populistamerica.com/commentary

Populist #24
On the Executive Branch; Relating to War Powers, continued

It is my purpose here to continue our examination of the Executive Branch in relation to the powers of war.  I expect to raise a few reasonable doubts about the premises and consequences of currently prevailing war-powers doctrines, which are all too common amongst us as of late.  Perhaps, in the end, the ideological structures of absolute power in the Executive, with full presidential sovereignty and endless war powers, are sound.  Maybe we should all become believers in this new way of administering a free government.  I think, however, on the evidence to be reviewed, that we shall wish to return, at minimum, to the expressly-stated powers of the Constitution; those delegating to the Executive the power to wage war, and to the Legislature, the power to declare war.

The framers of the Constitution attempted to balance the power of the President as commander-in-chief with that of Congress, the representatives of the People.  Article II, Section 2 of the Constitution gives to the Executive Branch the command of the nation's armed forces, while Article I, Section 8 gives to the Legislative Branch the power to decide when the United States goes to war. They weighed the individual will of the Executive against the deliberative function of the Legislature, whose constituents would bear the full costs of any war.

Thus, the framers deliberately separated the powers of declaring and waging war; they confined these powers in such a way so as to thwart the tyranny of kings. Despite being known as one of the greatest champions of centralized power of the times, even Alexander Hamilton felt that the President must generally bow to Congressional directions in times of peace and also in times of war.  He stated this clearly in Federalist #69: "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.; 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."

Although this strict separation of powers has been conclusively shown to exist in previous numbers of these papers, war powers are of a great enough importance to the health of a free society that they warrant further historical examination.  Our nation's founders were far from perfect, and at times, inconsistent and unjust; but, on the powers of war, they were unwavering, and their principles were sound.  Therefore, we must also consider the following statements:

"The separation of the power of declaring war from that of conducting it, is wisely contrived to exclude the danger of its being declared for the sake of its being conducted."
- James Madison

"This system will not hurry us into war; it is calculated to guard against it.  It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our interest can draw us into war."
- James Wilson

"Considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force in any degree which could be avoided."
- Thomas Jefferson

"The power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature"
- James Madison

The founders were absolutely clear in their demand that the country would only go to war upon the collective decision of the representatives of the People.  Additionally, as has been shown in previous papers, a primary reason for creating a system of representation was due to exigencies of the day that made it impossible for the People to meet and decide their fate in person.  Thus, the true reason for entrusting the Legislature with the power to declare war was to ensure that the People would be involved in the decision as much as was physically possible.  What the Framers did not imagine was a weak and ineffectual Congress that failed to claim its rightful authority in deciding when the nation would go to war, or a power-hungry President that wouldn't refuse an extra-constitutional transfer of such power from Congress.

The typical statist response to this argument is to claim that previous Presidents have sent troops into battle "hundreds of times" without a Congressional declaration of war.  Thus, the favorite Presidential excuse for claiming the right to initiate war unilaterally is nothing more than the reasoning of a child: Everybody does it.

But, the Constitution remains valid even after Presidents violate it.

We must hold that thought; a transfer of power is a violation of the Constitution by both the President, who accepts the transfer, as well as those in Congress who vote to delegate their Constitutionally-mandated responsibility to another branch.  In recent decades, such transfers have ultimately been no more than a blank check for the President.  These concepts are the key to solving our problems.  If we don't want our delegated rulers to violate the contract they have sworn to uphold; if we don't want blank checks drawn indefinitely on the public liberty and on civil society, we must strive to investigate even further, declarations of war, and other devices in relation to the oft-invoked war powers.

If Presidents continue to claim extraordinary wartime powers, and continue to lead us into undeclared wars with no beginning and no end, when if ever will these extraordinary powers expire? Since our current undeclared wars are the result of what those in power refer to as terrorism, we must consider the fact that terrorism will never be eliminated completely.  Therefore, should all future Presidents be able to act without regard to Congress, the Constitution, or the People, simply by stating that we're involved in a war without end?

It has been known throughout history that kings, dictators, and the executive branch of governments are always overly eager to go to war.  This is precisely why our founders tried desperately to keep decisions about going to war in the hands of the Legislature, and close to the People.  Unfortunately this process has failed us for decades.

Therefore, one obvious reason for dividing the war powers was to prevent such dictatorial powers from being placed in the hands of one person, the President.  The framers understood that, throughout history, rulers of nations worldwide had begun wars strictly on the basis of international politics or personal desires.  They clearly understood that rulers would often get the urge to remove foreign public officials, or dictate the policies of foreign nations, and that such urges are dangerous to liberty, no matter what the reason.  Sometimes they would do this by sending money to opposing groups with taxpayer money, and sometimes they would do so by assassination or coup.  But, history has proven to us that when all else fails, such despotic leaders will ultimately resort to invasion; as President Bush and his son did with Iraq; as Presidents Kennedy and Johnson did with Vietnam; as President Clinton did with Yugoslavia; as President Truman did with Korea; and as other Presidents did with less fanfare but similar vigor.

Another reason for entrusting the Congress with the power to declare war was in the hope that this would ensure, as much as possible, that a war was justified.  Thus, the idea was that if a President desired to send the nation into war, an appeal to the People, through their representatives, would be required to convince them of the justification for war.  Although our experience has shown that they failed, the framers desperately tried to minimize the potential for political entanglements in foreign affairs by dividing the war powers between the President and the Congress.

Why was all this so important to the framers?  Because they wisely feared dictatorial powers; even in the hands of an elected leader.  They also recognized that, of all potential enemies to liberty, war is the worst because it provides the greatest opportunity for the government to infringe on our rights!  As James Madison suggested, "Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few."

We must now recognize that the millions of dead in Korea and Vietnam, as well as the current quagmires in Iraq and Afghanistan, all result from the same defective policy of ignoring our laws as codified in the Constitution; all result from the same faulty foreign policy of American interventionism that our government has pursued for more than a century.  It would be overly simplistic, and completely erroneous, to say that the current administration is alone responsible for such actions and our current wars.  This is an endemic problem in our system of governance that crosses party lines, and has infected nearly every person who is involved in the administration of our government's foreign policy.

By rejecting the advice and the rules laid down by the founders and early Presidents, our recent leaders have gone so far astray from warnings against entangling alliances, that the founders would hardly recognize the government they created.  Policing the world and "spreading democracy" is not our calling.  Additionally, no such action is permitted by the Constitution.

The question remains, however; has this fundamental change been beneficial to freedom and prosperity here at home, and has it promoted peace and prosperity throughout the world?  Those who justify powers of declaring war in the Executive, and such interventionist policies abroad, argue that violations of the rule of law are not the issue; they are not a problem because of the great benefits we receive from maintaining and expanding the American empire.  No, my fellow citizens, do not follow such words, for this is the argument of tyrants!

For nearly six decades, the central government has acted extra-constitutionally, without even taking into consideration the damage to property and prosperity, the countless trillions of dollars spent, the liberties lost, and the deaths of millions!  Have they considered the future; our future?  Has this policy of endless war and foreign entanglements set us up for radical changes that we have yet to see?  Were our nation's founders completely off-track because they lived in a different time and in a different political climate, or were the policies they recommended based on essential principles of lasting value?  Choosing the wrong answer to this question just might be deadly to the revolutionary spirit of freedom and liberty that made this nation great.

I urge the free citizens of America to consult their true national happiness; to wish for no innovation, but what is based on equal liberty for all!  I shall despair of any level of true happiness in the United States until the war powers are returned to their rightful location.  But, this is the least of our troubles, for it is our great, yet flawed, Constitutional system which has allowed such violations!  An improved system of governance for the United States will hold firm to such essential pillars of freedom as enumerated in the Constitution, but will also develop a greater barrier against those who would harm our system of liberty and justice.  It is my opinion, in considering our future, that it is of the utmost importance for the People to reassert their responsibility over the war power; and it is this that I hope to develop further in my next paper, on March 23, 2006.

As I leave you now, I implore you to heed this warning from Abraham Lincoln:

"Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose; and you allow him to make war at pleasure.  Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose.  If, today, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him?  You may say to him, 'I see no probability of the British invading us' but he will say to you, 'be silent; I see it, if you don't.'"


In the spirit of liberty and prosperity,


Franklin

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.