“The Congress shall have Power To . . . declare War. . . .”—U.S. Constitution, Article I, Section 8
That brief phrase seems to have vanished from the national memory in the wake of the atrocities of September 11. If the terrorists really intended to assault the American tradition of freedom under law, score one for the terrorists.
Instead of a declaration of war, Congress passed this resolution: “The president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” (Emphasis added.)
That is not a declaration of war. It’s a grant of Caesarian power. Indeed, when the Senate majority leader was asked if the President would need congressional authorization to attack Iraq after Afghanistan, he replied, “No, he certainly wouldn’t have to clear it with us. He’s an independent branch of government.”
Alexander Hamilton wrote in Federalist No. 69 that “The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.” (Italics added.)
The framers had good reason to separate the dangerous power to declare (and finance) war from the power to command the armed forces. As James Madison explained in Federalist No. 47: “The accumulation of all powers, legislative, executive, and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” He quoted Montesquieu: “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.”
Although the constitutional delegation of the war power has not been respected since 1941, devotees of freedom under law should be alarmed nonetheless. Unfortunately, Madison was right when he wrote in Federalist No. 48, “[A] mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”
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