by Jacob G. Hornberger
Given all the talk about the possibility of President Obama initiating another war of aggression, this one against Iran, now would be a good time to review the illegality of such an operation, a point that will likely be forgotten once the standard war fever and warped sense of patriotism hits the media and the mainstream public. Under our system of government, the president is prohibited from waging war without first securing a declaration of war from Congress.
Yes, I know — U.S. interventionists hate that part of the Constitution, just as they hate the part that prohibits the federal government from depriving people of life without due process of law or that part that requires a search warrant as a prerequisite for peering into people’s private affairs or that part that prohibits the imposition of cruel and unusual punishments on people.
But the law is the law. If interventionists don’t like the law, they can initiate the process to get the law changed. That means a constitutional amendment. But until they do that, the president and other U.S. officials are supposed to obey the law. When they don’t, they are lawbreakers.
We should keep in mind how the federal government came into existence. It hasn’t always been with us. The Constitution called it into existence. If the American people had not approved the Constitution, then the federal government would not have come into existence.
Our American ancestors were not terribly excited about the Constitution and the new federal government it was calling into existence. They were concerned that it might become a dictatorial type of government, even with democratically elected officials — that is, a government with unconstrained powers. They feared that if they permitted the federal government to come into existence, it would inevitably become the biggest threat to their freedom and well-being. In fact, that’s why they demanded passage of the Bill of Rights as a condition for approving the Constitution.
The proponents of the Constitution and the federal government assured the people that there was nothing to be concerned about. They said that the new federal government would be subject to the terms and conditions of the document that was calling it into existence — that is, the Constitution. Among those terms and conditions was that the federal government’s powers would be extremely limited — that is, limited to those powers that were expressly enumerated and delegated within the Constitution. If a power wasn’t enumerated and delegated in the Constitution, it could not be exercised.
Given that assurance, the American people were finally persuaded to go along with the deal, but only on the condition that the Bill of Rights be enacted, which provided express protection of people’s rights, liberties, and guarantees.
Among the most important constitutional constraints dealt with war. The Framers understood the propensity of political rulers to wage war against rulers.
More important, they understood that war was the biggest threat to the freedom and well-being of the citizenry — at the hands of their own government. War centralizes power within the government and provides all sorts of excuses to infringe on people’s freedom, in the name of winning the war and keeping the people safe.
Moreover, there is the financial aspect. Wars are expensive. They entail taxes, debt, and inevitably inflation — i.e., debasement of the money. Nations go broke fighting wars, especially when the wars are perpetual in nature.
Therefore, it was vitally important to our ancestors to divide the war power into two separate powers. Congress was given the power to declare war — that is, to determine whether the nation would, in fact, be going to war against another nation-state.
The president, for his part, was given the power to wage war but only after Congress declared war. If Congress failed to declare war, the president was prohibited by the Constitution from waging war.
Keep in mind that the Constitution is the law that we the people have imposed on federal officials.
Once the federal government came into existence, it began imposing laws on the citizenry, laws that we the people are expected to obey, on pain of fine and imprisonment.
For example, the federal government has imposed brutal drug laws on the people. Many people don’t believe that such laws are legitimate in a free society. Nonetheless, the federal government’s position is: You can believe anything you want but if you are caught violating our drug laws, we will punish you severely with jail time and fine.
The same principle applies, however, to our law — the law that we the people have imposed on federal officials. They’re supposed to be obey our law — the Constitution — just as they expect us to obey their laws.
For all too long, however, they have ignored the people’s law. Ever since World War II, which was the last time a U.S. president complied with the higher law requiring a congressional declaration of war, U.S. presidents have knowingly, intentionally, and deliberately ignored the law by waging war against nation-states without the constitutionally required congressional declaration of war.
What can be done about that? I don’t know.
One option would be for Congress to make it clear that from here on out, any president who violates the law by waging war without a congressional declaration of war will be impeached. Unfortunately, however, Congress has shown little interest in doing so.
Another option would be for the federal judiciary to their job and, upon an interested citizen filing a lawsuit, enforce the Constitution by ordering the president to cease hostilities. Unfortunately, however, the federal judiciary long ago made it clear that it would not enforce this part of the Constitution, no doubt because it knew that the president, who has control over the military, wouldn’t comply with the court’s judgment anyway.
I suppose a third option would be to seek a constitutional amendment stating: “The president shall be prohibited from waging war without a congressional declaration of war, and this time we mean it.”
In the meantime, however, what we need to do is continue reminding the president, the members of Congress, the federal judiciary, and all U.S. officials that we the people are fully cognizant of their law-breaking and to make clear that we the people do not approve of it, including the waging of another undeclared war of aggression, this time against Iran.
Jacob Hornberger is founder and president of the Future of Freedom Foundation.
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