History, law, more than 200 years of precedent, Congress, and the courts are against you.

So you retreat to reprise the battle over interpretation of the Constitution first waged by Jefferson, who did not attend the Constitutional Convention, and tried to get it rejected by the Virginia Ratifying Convention, against Hamilton, who did attend the Constitutional Convention, and fought harder than anyone else to get it ratified by the 13 State Ratifying Conventions.

Jefferson was a hypocrite. The Constitution nowhere granted Congress or the President power to buy territory from a foreign power, or more concretely, to make the Louisiana Purchase from France, yet Jefferson (wisely)betrayed his principles, acceded to Hamilton’s way of thinking, and made the deal with France.

Should we give Arizona back to Mexico, since not a word in the Constitution expressly allows annexations of territory to the United States? Isn’t that required by your reading of the Tenth Amendment?

As for the Constitution being a dead letter for over a century, you live in paranoia fantasy land. It is alive and vibrant today, as we gun owners know when the Supreme Court upheld the Second Amendment in District of Columbia v. Heller.

We conservatives should never put on the straight jacket of a persecution complex. Let’s always keep Reagan’s sunniness and optimism about our country. There is enough already to fight about against the Liberals, without getting lost in a losing battle over how Congress writes laws, or what wording it uses, authorizing the President to make war overseas.

Jefferson despised the institution of the Supreme Court, predicted that its imprimatur would be used to validate (legalize) every form of mischief by the Federal apparatus. He argued that it should be shorn of almost all of the power granted to it by what became the Constitution.

He was right. Observe the perfect example of what he warned against…

There is no power, granted by the Constitution, for Congress to “authorize” war. The constitution grants Congress only the power to _declare_ war. The difference is not just a semantical one. If the Constitution does not grant Congress the power to do something else,
some alternative to a declaration of war which might allow the same capacity to inflict violence, then the Congress _may not_ legally do so.

Against this legal high wall, the standard upon which the whole Republic rests, a stack of
lesser, “empowering” statutes stretching to the moon, regardless of what they may “authorize,” amounts to nothing.

As other contributors to the thread have tried to point out, the Constitution was not conceived as some kind of crowning showpiece under which the central government would accrete more and more “statutory” power. It was conceived as a permanent prophylactic against such a process, a “day after” pill meant to stop the malignant collusion we now see underwriting every brand of govt. misconduct.

You loyal Americans who go to such strenuous efforts to defend your Country’s conduct of undeclared overseas wars ought, one might think, put a little of that passion into defending your own Constitution. Without it, you have no Republic. And, right now, its existence is but a tokenism, indeed, a pacification tool, making it possible
for you to think that you have a working republic while, in fact, that Republic’s founding document is, and has been, entirely a dead letter for over a century.

That was not the point of any of my replies. The point of my replies was stated clearly and you did not refute them.

Emil, I’m a life long registered Republican, am 100% pro life, oppose legalization, etc. etc.

You can attack the messenger all you want and try to stick that nasty L label on, but it only demonstrates you to be illogical as “attack the messenger” is a definitional illogical argument. Not to mention the fact that you can’t make that L label stick to me.

I can’t determine from the variety of posts where you all stand on abortion, gays, guns,marijuana, and taxation just to name a few of the other issues that often define we on the current right.

While the constitution is the most glorious rule book in the history of governing, it is not the final arbiter of collective behavior. It grants no rights, but simply recognizes some of them. And those who wrote it were not unanimous about what it meant, not to speak of other Founders who did not support its ratification. Including Elbridge Gerry.

In my years of activity in the LP I once supported a non-intervetionist foreign policy. I no longer do for both practical and moral reasons. The constitution is not a suicide pact.

Good debate. I have respect for both sides.

Emil Franzi, Tucson

Your comments about a standing army and the militia are stuck in my craw, and so I am going to spit them out. Thank God for the Army, Navy, Air Force, and Marines. They are what stands between the free men and women of this great United States and tyranny. America learned a bitter lesson about the need for the military on December 7, 1941, and later paid forfeits of blood and tears at Bataan and Corregidor and on the Death March, when we could send no reinforcements to the Phillipines. The lack of a military almost reduced us to vassals to the Empire of Japan. By the Grace of God at Midway, and by the gallant Marines who courageously held Henderson Field against overwhelming odds at Guadalcanal, the men of my father’s generation hung on with sheer guts until the Army and Navy could be built in 1942 and could destroy the Imperial Japanese Army and Navy in 1943, 1944, and 1945. The Founders were right for their times when the Atlantic separated us from European arms, and we had not reached the Pacific. Since Kitty Hawk, it makes no practical sense to trust the goodwill of foreign powers. I’ll take the men and women in uniform any day.

Those are fine sentiments and you should use them to inform your vote for members of Congress and for President, but don’t suggest that the Iraq War or the Gulf War were illegal or unconstitutional. They were not, as I amply demonstrated above.

Publius knocks down any suggestion that we of later generations have strayed from the Founders’ understanding of Congress’s war making powers as set forth in the Constitution. The Fifth Congress authorized by law President Adams to make war against the French on the high seas in retaliation for French seizure of American vessels. But the Fifth Congress never used the words “declare war against France,” or declare that a state of war exists between France and the United States,” and for good reason. If the Fifth Congress had used such words, it would have bit off far more than it could chew against what then was the greatest army in the world at the time, with likely disastrous results to our then young country. And so with eminent good sense the Fifth Congress authorized President Adams, without the use of the words “declare war,” in effect to make war against France on the high seas to defend our country’s rights and honor, which President Adams did to success. Here are the Fifth Congress’s words, from the act of July 9, 1798:

“That the President of the United States shall be, and he is hereby authorized to instruct the commanders of the public armed vessels which are, or which shall be employed in the service of the United States, to subdue, seize and take any armed French vessel, which shall be found within the jurisdictional limits of the United States, or elsewhere, on the high seas, and such captured vessel, with her apparel, guns and appurtenances, and the goods or effects which shall be found on board the same, being French property, shall be brought within some port of the United States, and shall be duly proceeded against and condemned as forfeited; and shall accrue and be distributed, as by law is or shall be provided respecting the captures which shall be made by the public armed vessels of the United States.”

The Fifth Congress and President Adams, within the time of the Founders, set the precedent of flexibility in the wording of Congress’s exercise of its constitutional war making powers. It has been so ever since.

Case closed?

The founding fathers were clear. Standing armies are a threat to liberty.

James Madison said:
“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. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could preserve its freedom in the midst of continual warfare. ”

Further
“Perhaps it is a universal truth that the loss of liberty at home is to be charged against provisions against danger, real or pretended from abroad. ”

Further
“A standing military force, with an overgrown Executive will not long be safe companions to liberty.”

Do I think we should abolish our current standing military? Of course not. But to argue that the founding fathers had the intention to have a standing army and give the president the authority to command it without a constitutional declaration of war is patently absurd.

That wasn’t the founding fathers intention, clearly, and the contortions made in arguements in support of it are ridiculous.

“What, sir, is the use of a militia? It is to
prevent the establishment of a standing army,
the bane of liberty.” Rep. Elbridge Gerry of
Massachusetts, I Annals of Congress at 750 (August
17, 1789)

I’m ALL FOR having the militia!

Remember the 10th amendment as the blog poster pointed out. If something is not explicitly specified in the constitution, the federal government does not have the power or authority to do it, only the states and the people have.

The Constitution says the Congress has the power to declare war. It doesn’t specify the format in which the Congress excercises that power.

The point is what the point of the article is. There has been no congressional declaration of war since WWII.

You argue that (at least in Iraq), that Congress has “constitutionally” provided their authority to the president to protect the United States.

I merely pointed out back to you using your own citations with a little further clarification, consistent with the point of the original blog post, that it was done to support UN resolutions, not to defend the United States.

This was clearly not the intent of the founding fathers. Your contorted contention that it was is, unfortunately, revealing.

I’m sure you claim to support the constitution as well. Or perhaps the “convenient” parts of it.

Too bad.

You can do better than that. Public Laws 107-243 and 102-1, both passed by majorities in both houses of Congress and signed by the President (respectively Bush 43 and Bush 41)were “specific statutory authorization.” A law passed by Congress and signed by the President is “statutory authorization.”

Whatever Bush 43 said in 2005, that is not what he said in 2002 and 2003. In the lead up to Congress’s “specific statutory” authorization in Public Law 107-243 of the Iraq war, Bush 43 clearly said that Saddam Hussein and his weapons of mass destruction posed a danger to the United States.

Similarly, Congress passed Public Law 102-1 by majorities in both houses of Congress and Bush 41 signed it. That makes it a law and it specifically authorized Bush 41 to use the armed forces of the United States to enforce UN Resolutions kicking Saddam Hussein out of Kuwait.

Constitutionalist does not live in reality. Not a word of the Constitution specifies exactly how Congress must act to authorize the President to make war outside the United States. This issue has gone repeatedly to the courts and they repeatedly have held that it is up to Congress how it writes the law authorizing the President to make war.

It is beyond dispute to anyone who can read that Congress authorized the President by law to carry on both the Gulf War and the Iraq war. Words mean something.

You can try to drum up a fantasy that the President acted unconstitutionally in Iraq and Kuwait. But it is not true.

What you failed to point out in PL 93-548 is Sec 2.(c)(1-3): that these powers are exercised only pursuant to
-a declaration of war
-specific statutory authorization, or
-a national emergency created by attack upon the United States.

Public Law 107-243 of 2002 as you pointed out, provied the authority to be exercised by the President to
-defend the national security of the United States against the continuing threat posed by Iraq; and
-enforce all relevant United Nations Security Council resolutions regarding Iraq.”

Bush later admitted in a press conference in Aug, 2005 that there was no national security threat posed by Iraq, which necessarily means that the US was in Iraq in order to enforce UN resolutions.

This point goes to the author of this post.

Additionally, as you pointed out
Public Law 102-1 of 1991 was specifically to enforce UN resolution.

Point to the author.

Again, you can use whatever contorted reasoning you want or appeals to authority. The only authority a CONSTITUTIONALIST needs to appeal to is the plain word of the constitution and the written intent of the founding fathers.

Point again to the author.

No, what I said is not false.

On November 7, 1973, Congress passed Public Law 93-148, over Persident Nixon’s veto. It is commonly called the War Powers Act, though technically speaking its short title is the “War Powers resolution.”

Section 5(B) of Public Law 93-148 provides,
“WITHIN SIXTY CALENDAR DAYS AFTER A REPORT IS SUBMITTED OR IS REQUIRED TO BE SUBMITTED PURSUANT TO SECTION 4 (A) (1), WHICHEVER IS EARLIER, THE PRESIDENT SHALL TERMINATE ANY USE OF UNITED STATES ARMED FORCES WITH RESPECT TO WHICH SUCH REPORT WAS SUBMITTED (OR REQUIRED TO BE SUBMITTED), UNLESS THE CONGRESS (1) HAS DECLARED WAR OR HAS ENACTED A SPECIFIC AUTHORIZATION FOR SUCH USE OF UNITED STATES ARMED FORCES, (2) HAS EXTENDED BY LAW SUCH SIXTY-DAY PERIOD, OR (3) IS PHYSICALLY UNABLE TO MEET AS A RESULT OF AN ARMED ATTACK UPON THE UNITED STATES. SUCH SIXTY-DAY PERIOD SHALL BE EXTENDED FOR NOT MORE THAN AN ADDITIONAL THIRTY DAYS IF THE PRESIDENT DETERMINES AND CERTIFIES TO THE CONGRESS IN WRITING THAT UNAVOIDABLE MILITARY NECESSITY RESPECTING THE SAFETY OF UNITED STATES ARMED FORCES REQUIRES THE CONTINUED USE OF SUCH ARMED FORCES IN THE COURSE OF BRINGING ABOUT A PROMPT REMOVAL OF SUCH FORCES.”

Public Law 93-148 has been the law of the United States for more than 36 years.

With regard to the Iraq War, on October 16, 2002, Congress passed Public Law 107-243, and President Bush signed it the same day. Public Law 107-243, section 3, reads,
SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

“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; and

(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.”

Thus Congress authorized the President to do two things: 1) defend the national security of the United States in Iraq, and 2) enforce the UN resolutions regarding Iraq. The Court of Appeals dismissed the lawsuit against Bush, Doe v. Bush, challenging the president’s authority to wage the Iraq War.

Regarding the Gulf War, Congress passed Public Law 102-1 on January 14, 1991, and the first Ppresident Bush signed it the same day.

Subsection 2(a)reads, “The President is authorized, subject to subsection (b), to use United States Armed Forces pursuant to United Nations Security Council Resolution 678 (1990) in order to achieve implementation of Security Council Resolutions 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 677.” These resolutions required Saddam to clear out of Kuwait, or have his army expelled by force, which, if you recall, General Schwartzkopf did quite nicely.

Opponents of both wars, and of the Viet name War, have sued in court and always have lost.

It remains an absolute fact that Congress authorized these wars, and it also remains an absolute fact that Public Law 93-148 requires the President to obtain Congress’s approval of any overseas engagement after 60 days, with a few narrow exceptions provided for in this law.

I expect an 8th grader can understand that when Congress authorizes the president to conduct a war overseeas, Congress menat what it said.