DAVID CRISP
Congress surrenders power to declare wars
Sat May 3 16:31:40 2003
208.152.73.34

http://www.billingsnews.com/story?storyid=4412&issue=135

Congress surrenders power to declare wars
By DAVID CRISP

Two wars into the millennium, with more wars darkening the horizon, it’s time to return to the United States Constitution. But first, this message: The Montana House last week passed a resolution calling on the U.S. Supreme Court to reverse the 9th Circuit Court ruling on the Pledge of Allegiance. Only 11 of 100 House members opposed the resolution, seven of them women and all of them Democrats.

The Republican Party’s e-mail newsletter waxed ecstatic. “Indeed in the midst of the budget and economic war there has emerged a piece of work that causes your heart to pound with honor and your spirits to swell with emotion,” the newsletter said.

Never mind that the Legislature’s work on behalf of the pledge was accompanied by less heart-pounding achievements, such as measures to limit the rights of shareholders to sue companies in which they hold stock, to limit the right of citizens to alter government through initiatives, and to restrict the power of local governments to protect the public against smoking. We’ve still got the pledge.

Of course, the Supreme Court will pay the House resolution no mind. The high court’s job is to interpret the law and the Constitution, not to bend to the political will of state legislatures.

We would be better off if the House would take a few minutes instead to put some pressure where it might do some good: to call on the U.S. Congress to honor its constitutional obligation to declare all wars.

Congress has not exercised that power since 1941, despite a long history since then of military adventures, police actions, overseas interventions and rescue operations. Some of those actions fall into gray areas; others, like the recent war in Iraq, fit cleanly under any meaningful definition of war.

Yet the idea that Congress should heed its clear obligation to call a war a war scarcely gets a hearing. Only a handful of congressmen held out for a declaration of war against Iraq, and a lawsuit challenging the war was all but laughed out of court.

Defenders of leaving war to the president cited technical arguments. They said that the president was simply enforcing provisions of the 1991 cease-fire in Iraq and needed no new authorization.

They said that he was acting under the behest of United Nations resolutions, even though the UN declined the honor of having us act on its behalf. They said that Congress authorized the war in October, when it gave President Bush permission to determine when inspections had failed and then to launch an attack at the time and venue of his choosing. They said that presidents have been waging wars without Congress for 60 years and have established a solid precedent for doing so.

All of this strikes me as nonsense – except for the last argument, which is downright ominous. We all knew, instinctively and profoundly, that what happened in Iraq was no mere continuation of peace by other means. It was war.

And the October resolution doesn’t excuse it. Delegating the power to declare war is not the same as declaring war. No constitutional provision allows Congress to pass the buck on tough calls.

Enough from me. The defense calls James Madison, a wartime president who thought harder about the U.S. Constitution than anyone who ever lived. His thesis: “In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department.”

Mr. Madison had no use for technical disputes. Writing in 1793, he warned about those who make the niggling case we read today: “The power of the legislature to declare war, and judge of the causes for declaring it, is one of the most express and explicit parts of the constitution. To endeavour to abridge or affect it by strained inferences, and by hypothetical or singular occurrences, naturally warns the reader of some lurking fallacy.”

Mr. Madison makes two main arguments. First, he wrote, “Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws.”

In addition to the separation of powers argument, Mr. Madison said that war is too great a power to entrust to one man. “War is in fact the true nurse of executive aggrandizement,” he wrote. “In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasures are to be unlocked; and it is the executive hand which is to dispense them. In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered; and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace.”

He warned against expanded doctrines of executive power, and public acquiescence in them. “[E]very power that can be deduced from them, will be deduced, and exercised sooner or later by those who may have an interest in so doing,” he wrote. “The character of human nature gives this salutary warning to every sober and reflecting mind. And the history of government in all its forms and in every period of time, ratifies the danger.”

What’s frustrating about making this argument is that hardly anyone disagrees. Nobody wants to pick a fight with James Madison. Yet both political parties allow it to go on. The party in power doesn’t want to tie the hands of the chief executive, and the party out of power wants to be able to say “We told you so” if war goes badly.

Mr. Madison tells us, “it has grown into an axiom that the executive is the department of power most distinguished by its propensity to war: hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence.”

By blithely allowing Congress to surrender without a whimper its war powers to the president, we already have become a less free people. And all the courage and prowess of our military forces can’t do a thing to change it.
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Martin F. Abernathy abemarf@aol.com
R.I.C.O. Lawsuit Against G.W. Bush
http://www.apfn.org/apfn/rico_bush.htm