What's So Important About a Declaration of War?
Presidential hopeful Ron Paul insists that the U.S. government shouldn’t go to war without a declaration of war. His son Rand has also taken this position, as have several libertarian-leaning Tea Party candidates. According to the U.S. Constitution, the congress is invested with the power to declare war. These constitutionalists say that this declaration should be a requirement before military action is authorized.
I’m not sure that this is resonating with those that are unfamiliar with what a declaration of war means. For most people, the declaration of war is a formality whereby the president makes sure that it is agreeable to the Congress that he utilizes the military. Some might even go so far as to say it is the president “asking permission” from the Congress to do so. By this reasoning, both Presidents Bush and Obama have complied, especially considering H.J. Res. 114 (October 16, 2002). With that resolution, Congress authorized the president to use military force in the war on terror. What is the difference between that and a declaration of war?
The answer is both intuitive and supported by history. First, a “declaration” has nothing to do with “permission.” Neither is it the same thing as creation or initiation. One can only declare something that already exists. Therefore, a declaration of war does not create a war or initiate a war. A declaration of war is a resolution passed by Congress recognizing that the United States is already at war.
The intent of the declaration of war power is for the government to have an adjudication process for war analogous to a criminal trial for domestic crimes. Evidence must be presented that the nation in question has committed overt acts of war against the United States. The Congress must deliberate on that evidence and then vote on whether or not a state of war exists. The actual declaration of war is analogous to a conviction at a criminal trial. The Congress issues the "verdict" and the president is called upon to employ the military. To wage war without a declaration of war is akin to a lynching: there has been no finding of guilt before force has been employed in response.
Herein lies the difference between H.J. Res. 114 and a declaration of war. In order for President Bush to have obtained a declaration of war against Iraq, he would have had to present his case that Iraq had already committed overt acts of war against the United States. Like a prosecutor, he would have had to convince the “jury” (Congress) that Iraq was guilty – not of “possessing weapons of mass destruction” but of having already aggressed against the United States. Obviously, he would not have been able to do this. In fact, the absence of any overt acts of war by the nations in question is the reason that there were no declarations of war against Korea, Viet Nam, Bosnia, or any other nation that the U.S. government has waged war against since WWII.
The declaration of war power requires the government to obey the law of nature that that no individual or group may initiate force against another. It ensures that before the executive launches a military action against another nation, a separate body deliberates on evidence and agrees that said nation has been an aggressor. Only then is waging war justified.
This interpretation is supported by every declaration of war in U.S. history. Here are two examples.
When James Polk asked Congress to declare war on Mexico in 1846, he said,
“But now, after reiterated menaces, Mexico has passed the boundary of the United States, has invaded our territory and shed American blood upon the American soil. She has proclaimed that hostilities have commenced, and that the two nations are now at war. [emphasis added]
As war exists, and, notwithstanding all our efforts to avoid it, exists by the act of Mexico herself, we are called upon by every consideration of duty and patriotism to vindicate with decision the honor, the rights, and the interests of our country. . . .
In further vindication of our rights and defense of our territory, I invoke the prompt action of Congress to recognize the existence of the war, and to place at the disposition of the Executive the means of prosecuting the war with vigor, and thus hastening the restoration of peace.”[1] [emphasis added]
After reviewing Polk’s request, Congress issued the following declaration of war,
“Whereas, by the act of the Republic of Mexico, a state of war exists between that Government and the United States: Be it enacted by the Senate and House of Representatives of the United States of American in Congress assembled, That for the purpose of enabling the government of the United States to prosecute said war to a speedy and successful termination…”[2] [emphasis added]
Note the italicized words. The state of war already exists because of the act of the Republic of Mexico.
Americans are probably most familiar with the last occasion upon which the United States declared war. In what may have been the only constitutional act of his entire presidency, President Roosevelt asked Congress to declare war on Japan during this famous speech:
Mr. Vice President, Mr. Speaker, Members of the Senate, and of the House of Representatives:
Yesterday, December 7th, 1941 -- a date which will live in infamy -- the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan.
The United States was at peace with that nation and, at the solicitation of Japan, was still in conversation with its government and its emperor looking toward the maintenance of peace in the Pacific…Yesterday, the Japanese government also launched an attack against Malaya. Last night, Japanese forces attacked Hong Kong. Last night, Japanese forces attacked Guam. Last night, Japanese forces attacked the Philippine Islands. Last night, the Japanese attacked Wake Island. And this morning, the Japanese attacked Midway Island. I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December 7th, 1941, a state of war has existed between the United States and the Japanese empire.”[3] [full text of speech here]
In response, Congress resolved,
“Whereas the Imperial Government of Japan has committed unprovoked acts of war against the Government and the people of the United States of America: Therefore be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial Government of Japan; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States.”[4]
Every other past declaration of war in U.S. history follows exactly this format. The president presents evidence. The Congress votes on the validity of that evidence. It declares that war already exists. It then directs the president to use the military to end the war.
Had this constitutional process been followed, the United States would not have been involved in the wars in Korea, Viet Nam, Iraq, Somalia, Bosnia, or Afghanistan. The declaration of war power ensures that the U.S. government never initiates force, but only uses the military to defend its citizens against an aggressor.
Following the constitution on this point would have kept the United States out of every war since WWII and prevented the U.S. government from running up a large portion of its unresolvable debt. Abiding the law of nature is not only moral, but cost-effective.
During the South Carolina Republican Primary Debate on May 5, Herman Cain articulated his position on the government’s war powers. He stated that, as president, he would not involve the U.S. military in war unless three criteria were met. 1. There was a clear objective. 2. There was a verifiable U.S. interest in question. 3. There was a clear path to victory.
While his comments clearly titillated the audience panel interviewed after the debate, one must recognize that Adolph Hitler’s wars would have been justified on this basis. Are those the only criteria upon which the U.S. government should base its decision to go to war? How about, “They attacked us?” That should be the one and only reason.
Going to war without a declaration of war not only represents aggression against the nation in question, but against every U.S. taxpayer as well. The only argument that can be made for taxing a free people is that taxation is necessary to underwrite protection of their lives, liberties, and properties. The only way that they can be compelled to pay for a war is if a state of war exists between them and another nation. To tax them for a war fought for other reasons, including defending people other than themselves, is to aggress against them. Once the government is allowed to do that, it is time to stop calling the United States “the land of the free.”
© Thomas Mullen 2011
[1] http://www.pbs.org/weta/thewest/resources/archives/two/mexde...
[2] Twenty-Ninth Congress Sess. I Ch. 16 http://www.lawandfreedom.com/site/historical/Mexico1846.pdf
[3] http://www.americanrhetoric.com/speeches/fdrpearlharbor.htm
[4] Seventy-seventh Congress Sess. 1 Ch. 561 http://www.lawandfreedom.com/site/historical/Japan1941.pdf
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What's so important about a
What's so important about a Declaration of War? The difference is whether the US government is committed to waging war, or whether the Congress relinquishes it's authority to a would be dictator. Because when one man can commit a nation to war, it's called dictatorship.
All I know is, when the ARMY is sent in
you are declaring WAR. Marines are always used "pre" war. It's called an action. Marine Corp hymmn declares the actions in the past. The Army must wait so many days before going in. Some international law involved.Maritime law.?
Since the President has declared that we are in defensive posture, the rules change. Malitia is being used at the sole command of the President. We are experiencing a Presidential war zone around the globe. Congress has nothing to do with it, except hand over the checkbook.
The "Patriot Act" is boggus because, in a defensive posture the President ALREADY had been granted HIS own Powers. To defend.
I wonder if that is why I preffered a truthfull example of a "NATURAL" BORN? Oh well easy come easy go , LAW really does not matter. Get away with what you can. NO problem.
Judging war by the standard of
the NonAggression Principle makes sense to me; it's a valuable contribution to ongoing war debates. I linked to your article on my site.
I have to respectfully
I have to respectfully disagree with your presumptions.
You are assuming that Congress would actually expect Bush/Obama to present their case for war in the manner your say (presenting evidence that the US has been attacked).
They would not have done this. This should not at all be surprising.
I mean, look at resolution 114, which gives the President the ability to fight the "war on terror". Are you really saying that Congress would have decided differently if the process of getting that approval had been different? Are you saying that, when war was declared against Iraq and Afghanistan, Congress was unaware of the facts, and had Obama/Bush made those facts clear, they would have voted no?
The reasons Bush did not ask Congress for permission are many fold.
1) He wanted to own the war. He wanted history to say that Bush was the one to initiate the war; not Congress. Politics at its finest.
2) Funding. The way Bush did it, he could literally hide money spent on the war. It didn't go on the yearly budget. That is why, if you look at changes in the debt from year to year, vs. the yearly account deficit from Congress, there is great variance. Obama changed this, by including funding for the wars in his actual budget.
3) Precedent. The neocons wanted to set the precedent of a President being able to unilaterally declare war. Because, honestly, it did not matter in Afghanistan or Iraq (and anyone saying otherwise is arguing semantics). Afghanistan had bipartisan support and the support of oveer 90% of the American public. The Iraq war had the majority of Congress as well as over 70% of the American people in support. So when Bush declared war without the approval of Congress, people looked at Congress's approval as the formality it was.
The neocons, IMO, were hoping that if the president declared war in the future, with Congress less by-his-side, with the American people more against the war, the president would still be allowed to do it. Basically, they wanted the public to think< "well, I disagree with him, but the President has the power to declare war", even though he doesn't
Plan for eliminating the national debt in 10-20 years:
Overview: http://rolexian.wordpress.com/2010/09/12/my-plan-for-reducin...
Specific cuts; defense spending: http://rolexian.wordpress.com/2011/01/03/more-detailed-look-a
It is easier
It is easier to to get rid of your congressman than your President. When Congress declares war they have to answer to the people.
This is right on the sense that it is easier to fix a ..
local problem than a national one.
But that man should play the tyrant over God, and find Him a better man than himself, is astonishing drama indeed!~~D. Sayers
There is no difference between an authoritarian government from the right or the left...F. A.Schaeffer
In a practical sense,
In a practical sense, no.
When things go good or bad, people ALWAYS look to the President. The President has notoriety, fane, etc. The attention is on him, the entire media, local and national focus on him. Since it is a national position everyone talks about how he is doing, etc. The national election is obviously a very big deal compared to congressional elections. Even gubernatorial elections are more important than congressional ones.
Given that, and an 8-year-term-limit, there is going to be more changeover in the executive branch.
How many Congressmen, especially Reps, get reelected simply because they are the incumbent (name recognition)? Especially since the incumbents bow to special interests and get the money to run good campaigns.
Plan for eliminating the national debt in 10-20 years:
Overview: http://rolexian.wordpress.com/2010/09/12/my-plan-for-reducin...
Specific cuts; defense spending: http://rolexian.wordpress.com/2011/01/03/more-detailed-look-a
The Constitution is our
The Constitution is our nation's highest law. Constitutional authority = legal authority.
Congress has the constitutional authority to declare war, the President does not.
Neither has the constitutional authority to simply "use force" against other nations whenever or wherever they desire. There was a very important reason for this: to prevent our government from getting us in to unnecessary trouble. If Congress does not have the justification of declaring a war then their only alternative is the use of diplomacy to settle differences with other nations.
Regarding Iraq & Afghanistan, the United States Congress has NEVER declared war against either country. The President certainly has not as well as a President does not have the constitutional authority to declare war.
When it comes to war, the job of Congress is to decide if we go to war with another nation and the President's job is to carry out the war.
...
Congress never issued a declaration of war on Iraq or Afgh.
Get the facts straight.
We were not attacked by Iraq. So of course Bush could not have presented evidence that a state of war existed between our two countries.
We also were not attacked by Afghanistan. The same inability to present evidence applies.
I think you've got yourself all confused.
It isn't a matter of asking for permission to bomb the crap out of people, it is about informing Congress of the nature of the situation and Congress ordering the speedy conclusion to the war.
A declaration of war does not start a war, it is passed to facilitate ending one that had already begun by actions of aggressors upon us.
In addition to you're being confused on the facts of recent history, I think you didn't bother to read the entire post before you responded, or else, you didn't comprehend it very well.
You didn't read my post, it
You didn't read my post, it appears?
I am saying, it doesn't matter that Bush couldn't provide evidence that Afghanistan or Iraq didn't attack us.
It isn't like Congress uses that metric. It isn't like, Congress would have said back in 2002 and 2003, "hmm, there is no evidence that they attacked us; therefore, we will not declare it".
They DIDN'T CARE! Congress could have stripped funding for the war, impeached Bush, done so many things. They didn't! They didn't WANT TO.
Tom is operating under the assumption that Congress adheres to protocols, facts.....they don't do this. Bush wanted to go to war. Congress wanted to go to war. The American people wanted to go to war. We were going to war. A change in protocol wasn't going to do that.
To put it simply, Tom has a view of "declaration of war" (its importance, its meaning (we have to be attacked first; a recognition of being in war)) that Congress does not and did not have.
To put it even more simply, had Bush followed constitutional protocol and asked Congress to declar war against Afghanistan and Iraq, he wouldn't have had to present anything different, and Congress would have given him the A-OK!
Plan for eliminating the national debt in 10-20 years:
Overview: http://rolexian.wordpress.com/2010/09/12/my-plan-for-reducin...
Specific cuts; defense spending: http://rolexian.wordpress.com/2011/01/03/more-detailed-look-a
If you're implying that the
If you're implying that the President and Congress have violated our Constitution and their oaths of office to uphold and defend it in relation to how they have conducted themselves regarding the military action in Iraq & Afghanistan, I agree.
...
The point
I believe is that the act of "declaring" a war has now become a euphemism rather than a specific procedure. You are arguing a difference in intent: the intent of the members of Congress vs. the intent of the Constitution. I think that Tom makes a very good case for the past practice of war declaration that, to my mind, seems much more constitutional. I look forward to reading more on this in the rhetoric of past declarations of war to see how well it bears up.
What you're saying is just that neither the President nor Congress follows the Constitution. Respectfully, I don't think that's any great revelation. ;)
I have all five in my book
and you will find that they all support the argument.
Tom Mullen
author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of Amer
war against an individual or group
Since we can only declare war against other nations, we would need a letter of Marque and Reprisal to be constitutionally viable to apprehend al qaeda or whatever disassociated group (that which crosses many countries sovereignty) the government deems is the enemy. Why does the political mainstream think that is so antiquated?
because it doesn't enrich
Boeing, Lockheed Martin, Halliburton, etc.
Tom Mullen
author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of Amer
It certainly could, but it would be a one-time contract hit
rather than on ongoing conflict.