Tenth Amendment Center: Reference Guide: The Constitution and War Powers
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With all the talk about the President’s speech on Afghanistan, it seems that most people are avoiding – or maybe just forgetting – the essential issue. That is, the Constitution.
In his latest article, Mike Maharrey makes the point that Congress has “completely abandoned its constitutional responsibility in matters of war and peace.” He’s right – and they’ve done this for decades.
But this isn’t an issue the TAC just started covering this week. We were founded in 2006, and have been publishing articles on the Constitution and war powers for a long time. I thought you’d be interested in reading a few – I’ve highlighted some of the main ones below:
1. Under the Constitution: Limited Strikes Qualify as War
Citing my 2007 war powers article, this update from 2014 is a great overview of the basics. These articles explain how war powers were separated between the executive and legislative branches. And you’ll also find answers to a few common objections.
2. James Madison, the Constitution and Waging War
In 2014, Judge Andrew Napolitano wrote this article in response to former-Pres. Obama’s plans to attack Syria. While much of the constitutional commentary is similar to the articles I wrote that year and back in 2007, he also includes some important commentary on the 1973 War Powers Resolution: “Though the courts have never reviewed it, it is certainly unconstitutional, as the courts have consistently ruled that one branch of government cannot give away its principal constitutional powers to another. Congress surely cannot give its war-making power to the president any more than it can give it to the courts.”
3. Obama’s Libyan Operations are Unconstitutional
In 2011, Prof. Rob Natelson wrote a rare article on war powers. It’s not an issue he often covers (I believe his greatest expertise is on the commerce and general welfare clauses), but he covered it well. Here, he gives an introduction to how the founders viewed war under three categories: “defensive wars, offensive just wars, and offensive unjust wars.”
4. Jefferson and the Barbary Pirates
In response to learning that Congress declares war, not the president, some apologists for the monster state claim that even Thomas Jefferson disagreed with the Constitutional structure. But Dave Benner smashed this opinion to bits in his 2016 article on the Barbary Wars.
Once the proper constitutional structure is established, people will still ask more questions. The most common, “ok, so what should be done?”
Well, if you’re a believer in Congressional solutions (I’m not), you’d press your representative and/or senator to introduce a resolution to “grant Letters of Marque and Reprisal.” It’s right there in the Constitution. And Dave Benner covered it well in his 2014 article on the subject.
On the other hand, in 2015 Shane Trejo made the case for state nullification of unconstitutional acts, noting that “Defend the Guard Legislation Threatens the Unconstitutional Status Quo.”
If you prefer video to reading, we’ve made a number of them on war powers. Here are two to start with:
1. The Constitution and the Power to “Declare War”
Pre-emptive strikes and undeclared offensive military expeditions are not powers delegated to the executive branch in the Constitution, and therefore, are unconstitutional. Thomas Jefferson stated this quite eloquently when, in 1801, he said that, as President, he was “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.”
2. How the Founders Defined “War”
Pre-emptive strikes and undeclared offensive military expeditions are not powers delegated to the executive branch in the Constitution, and therefore, are unconstitutional. Thomas Jefferson stated this quite eloquently when, in 1801, he said that, as President, he was “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.”
Michael Boldin
August 22, 2017 at 05:21PM
