Declaring War

Ten days ago, while I was driving with my family on Skyline Drive atop Virginia’s Blue Ridge, Kenneth posted a brief piece decrying this country’s abandonment of Article I, Section 8 of the Constitution of the United States – which stipulates that “Congress shall have the Power…to declare War.” This morning, George Friedman, founder and CEO of Stratfor, took up the same issue in a post on Townhall.com.

Kenneth was concerned that Congress’s failure to live up to its responsibilities has enabled the executive and the United Nations to drag us into unnecessary wars at odds with our interests. As he put it, “Going to war is the most serious and consequential action of the state.  Our Founding Fathers intended, therefore, that before our government engaged in acts of war, the will of the people should be expressed through the agency of their elected representatives.”

George Friedman – who did a Ph.D. in political philosophy years ago at Cornell University back when I was an assistant professor of history there – believes that “this is the point where the burdens and interests of the United States as a global empire collide with the principles and rights of the United States as a republic.”

In Friedman’s view, the Constitution is “explicit in requiring a formal declaration . . . for two reasons.”

The first is to prevent the president from taking the country to war without the consent of the governed, as represented by Congress. Second, by providing for a specific path to war, it provides the president power and legitimacy he would not have without that declaration; it both restrains the president and empowers him. Not only does it make his position as commander in chief unassailable by authorizing military action, it creates shared responsibility for war. A declaration of war informs the public of the burdens they will have to bear by leaving no doubt that Congress has decided on a new order — war — with how each member of Congress voted made known to the public.

When Congress last declared war following the Japanese attack on Pearl Harbor, Friedman observes, “It was a moment of majesty and sobriety, and with Congress’ affirmation, represented the unquestioned will of the republic. There was no going back, and there was no question that the burden would be borne.” He acknowledges that the Japanese assault made “getting the declaration easier,” but he adds that this is “what the founders intended: Going to war should be difficult; once at war, the commander in chief’s authority should be unquestionable.” He finds it decidedly “odd” that Harry Truman, Lyndon Johnson, and the younger George Bush chose not to pursue such a declaration, and he argues that this decision cost them success as Presidents: “the legitimacy of each war was questioned and became a contentious political issue certainly is rooted in the failure to follow constitutional pathways.” Now, he adds, with regard to Libya, we have reached the point “where even resolutions are no longer needed.”

In my judgment of the discretion that should be left to the executive, I am closer to John Yoo than I am to Kenneth. Our interests are far-flung and complex. It is inconceivable that a bicameral legislative body could intelligently direct policy. What is needed are the qualities that Alexander Hamilton in The Federalist attributed to the executive: vigor, energy, and dispatch.

But Kenneth has a point. When Montesquieu assessed monarchy in his Spirit of Laws, he acknowledged that one of its main drawbacks was its propensity to go to war for the sake of glory. The American President has very little power in the domestic sphere. He is responsible for the execution of the law; he has the power to veto legislation. But Congress can override his veto, and his independent policy-making capacity is restricted. In foreign affairs, however, he has greater latitude, and in that sphere he may be tempted by ambition and imagination to undertake projects not genuinely in the national interest.

There are reasons good and bad why, during the Cold War, the declaration of war fell into abeyance. We were, after all, at war in a time when we had to pretend that we were at peace. We were, moreover, engaged in a twilight struggle in which we had to do a great many things for which we could not acknowledge responsibility. And, to turn to the reasons that are bad, our Presidents were happy to be unfettered, and the members of Congress were delighted that they did not have to take responsibility for anything that might prove to be unpleasant.

To some degree, we are in the same boat today. We are involved in a clandestine war with Al Qa’eda, and this requires on our part certain maneuvers that are best left in the dark. Moreover, we are involved in a struggle with Iran that demands of us a measure of secrecy. No one would want us to declare war on Iran today, and no one would want there to be a congressional debate over the propriety of our deployment of Stuxnet. It was considerably simpler when the United States was a third-rate power unrivaled on this continent and protected from outside assault by the Atlantic, the Pacific, and the British navy.

Nonetheless, Kenneth has a point, and so does George Friedman. I do not think it appropriate to describe the United States in Friedman’s fashion as “a global empire.” We are, at best, a global hegemon. But that is a quibble, and I am particularly struck by the force of the second of Friedman’s two arguments. In my lifetime, President after President has found himself in a position in which Congress, having sanctioned force by a resolution or by appropriating the necessary funds, has acquiesced in war and then turned on the commander-in-chief when that war became less popular. In the new constitutional order, established after World War II by Truman and accepted by every President since, the President is free to act but he lacks the legal and moral authority to follow through. The last thing that we want to engage in is half-hearted wars.

In my judgment, in 2001, George W. Bush should have asked for a declaration of war. In the last few weeks, if President Obama wanted to overthrow Muamar Gadaffi, he should have done the same.

I would not describe Libya as a vital national interest. I would, however, say that there is something of real strategic significance to us at stake, and my opinion is that if we were on every occasion to wait until a vital national interest was in danger we would soon find that we had already lost out.

Was the freedom of Czechoslovakia for Britain in 1938 a vital national interest? Or was it a country far away of which the British knew little or nothing? It was, in fact, something in between, and what happened there nonetheless mattered a great deal. What happens in Libya matters as well. Oil is a strategic substance. Oil outside the Persian Gulf may prove to be vital in the foreseeable future. Moreover, what happens in Libya will influence calculations in and about the Persian Gulf. Compelling Congress to live up to its responsibilities would have this advantage: the debate in Congress would force the American people to think through what is required for the defense of their long-term interests. That is a debate that we need to have – lest, under the delusion that gripped Stanley Baldwin, we drift into pursuing a policy in which we unthinkingly fritter away the advantages that we gained in the last century at a terrible cost.

  1. Matthew Osborn

    The constitution does not say that a war must be declared before war is commenced; in fact, the declaration of war, while limited to congress’ discretion, seems to be completely optional.

    The constitution does, however, provide a mechanism for congress to remove a folly president. On balance, that is an excellent check. 

  2. Paul A. Rahe
    C
    Roy Lofquist: What is a “Declaration of War”? The Constitution does not specify a particular form as it does for oaths of office. I maintain that The Gulf of Tonkin Resolution and the Authorization for Use of Military Force Against Iraq were declarations of war under any reasonable reading. · Mar 29 at 9:02pm

    A declaration of war is an explicit statement by Congress that we are in a condition of war. These two resolutions never mentioned war as such, and on neither occasion did we mobilize the country in such a fashion as to suggest that we were at war.

  3. Nickolas

    I think the Prof. Yoo has established that the President can initiate offensive military action without receiving Congressional approval. A formal declaration of war is not needed.

    Also, history has demonstrated that our military commanders will follow orders from the President to initiate and engage in offensive military action.

    I think that once the President initiates offensive military action the Congress can oppose the President in several ways.

    • Rally public opinion to persuade the President to cease offensive military operations.

    • Withhold funding.
    • Contact key military commanders and persuade them to stop obeying the President’s orders.
    • Impeach the President and remove him from office if necessary
    • Using the 25th amendment, persuade the Vice-President and a majority of the President’s cabinet to declare the President unfit.

    In modern times the concept of a formal declaration of war may be effectively obsolete in practice, while still retaining legal status. I don’t think any nation has declared war on another since the 1940s.

  4. Gus Marvinson

    “…in 2001 George W. Bush should have asked for a declaration of war.”

    Don’t we need a sovereign state to declare war against? Were the Taliban universally understood to be the Afghan government? Besides, wasn’t the 2001 joint resolution essentially the same thing? Rummy’s book Known and Unknown:

    On September 18, 2001, Congress passed a joint resolution amounting to a declaration of war.It was approved by  stunning margins: 420-1 in the House and 98-0 in the Senate. The resolution gave the President the authority to use all “necessary and appropriate force” against those whom he determined “planned, authorized, committed, or aided” the 9/11 attacks and those who “harbored” the terrorists.

    In October 2002, Congress passed the Authorization for Military Force Against Iraq. The House passed it 297-133 and the Senate followed with a 77-23 vote. Bush got all the permission to fight that he needed, it was the PR battle that hurt him.

  5. Robert Bennett

    If anyone at Ricochet knows George Friedman, then he would be a good podcast guest.  Also, I really enjoyed reading this post.

  6. Roy Lofquist

    What is a “Declaration of War”? The Constitution does not specify a particular form as it does for oaths of office. I maintain that The Gulf of Tonkin Resolution and the Authorization for Use of Military Force Against Iraq were declarations of war under any reasonable reading.

  7. Umbra Fractus
    Paul A. Rahe: But Kenneth has a point. When Montesquieu assessed monarchy in his Spirit of Laws, he acknowledged that one of its main drawbacks was its propensity to go to war for the sake of glory.

    I don’t think this comparison is as supportive of Kenneth’s position as you do. Left unmentioned is the fact that monarchs do not have to worry about reelection. The pro-Congress arguments often cite Congress as a proxy for the people but ignore that the people have other venues for expressing their displeasure, namely elections. A war for personal glory is political suicide.

    One of the few benefits of having a “class” of politicians is that reelection is never far form most of their minds. While it can lead to the worst kind of pandering on one hand, it also prevents some astoundingly stupid behavior.

  8. Tom Meyer
    Roy Lofquist: What is a “Declaration of War”? The Constitution does not specify a particular form as it does for oaths of office. I maintain that The Gulf of Tonkin Resolution and the Authorization for Use of Military Force Against Iraq were declarations of war under any reasonable reading. · Mar 29 at 9:02pm

    The Wikipedia article&nbsp;on this is remarkably useful and contains links to the texts of all congressional declarations.&nbsp; To me, what’s fascinating is how direct and short the formal&nbsp; declarations&nbsp; are&nbsp;(<200 words) and how long and convoluted the undeclared ones are (GWB’s Authorization to Use Force, for instance, clocks in at 1,864 words).

  9. Paul A. Rahe
    C
    Hang On:

    I think declarations of war should be required precisely because it causes the public to focus on the issue in a way that the Gulf of Tonkin Resolution or Authorization Act did not. Declarations of war should be solemn and invests people in the results. · Mar 30 at 12:54pm

    Amen.

  10. Harry Huntington

    I am glad to see once again that Professor Rahe makes legal arguments by citing actual legal authority … oops sorry he does not. &nbsp;My bad. &nbsp; This is a discussion that would be enlivened by citation to the actual text of the Constitution; Supreme Court precedent; statutes … the stuff that in the real world that Courts and others call “authority.” &nbsp;For students out there following this discussion, please do not cite Montesquieu or even John Yoo when making arguments about the meaning of the Constitution. &nbsp;I think the reason that liberals do not take the Professor seriously is that he has not quite yet learned how to use an authoritative text to make his case. &nbsp;But in time I am sure he will come around. &nbsp;Good legal argument always cites proper authority to support claims. &nbsp;I do not see that here.

    Regarding what Obama has done, no authority supports his actions unless one relies on authority derived from ratification of the UN … but Obama’s actions appear to exceed the scope of operations authorized by the security council resolutions. &nbsp;Regarding what we are doing in Libya, we are clearly not at war with Libya. &nbsp;We do oppose, however, the governing regime.

  11. Hang On

    Libya is of far greater concern to British and particularly Italian national interests than to ours because of oil.&nbsp; So by one degree of separation, if Britain and Italy are in our national interest (as NATO would suggest), isn’t Libya?&nbsp;

    Another European national interest has to do with immigration and whether Libya is a conduit for large amounts of sub-Saharan immigrants getting to Europe. Khadaffi was playing a role in preventing Libya as serving as a conduit. If he survives, he is not only unlikely to continue to play such a role, but may encourage immigration.&nbsp; So again, by one degree of separation, if it is in Europe’s interest, is it not in ours?

    There is the Mediterranean. Safe navigation through the Mediterranean is certainly directly in our national interest and Libya could act to prevent this.

    And Japan wasn’t our last declaration of war. Germany was a few days later.

    I think declarations of war should be required precisely because it causes the public to focus on the issue in a way that the Gulf of Tonkin Resolution or Authorization Act did not. Declarations of war should be solemn and invests people in the results.

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