Benazir Bhutto Is Killed In Suicide Attack!!!
May she rest in peace.
Thursday, December 27, 2007
On the Constitutional Standing of Wars Undertaken Without a Formal "Declaration of War":
(Musings of your humble servant at Rerum Novarum)
[Update: For those who would roll their eyes and raise the shibboleth of slavery and the Founders as a lazy expedient to try and avoid the rationale behind the arguments set down in this posting, I have as of today added a new footnote (footnote two) which include previous posts from the archives which treat on certain principles that need to be accounted for at all times when assessing historical figures and complex societal issues. -ISM 1/9/2008 3:15pm]
Ron Paul belongs to a school of thought on Constitutional matters which is intrinsically flawed and historically unviable for reasons I will explain in an upcoming posting on constitutional matters to this humble weblog. However, I do not in that posting go into much detail on this in Paul's specific case. Nor do I intend in this one to do anything more than address one aspect of Rep. Paul's campaign platform (the "antiwar" platform) and do so indirectly at best.
The focus of this posting is the following assertion by Ron Paul -who is the cosponsor of some legislation I am in favour of at the moment by the way-{1} from one of the Republican Party candidate "debates" back in October of this year.
“Why don’t we just open up the Constitution and read it? You’re not allowed to go to war without a declaration of war.”
Unfortunately, Constitutional interpretation is not that simple nor was it the intention of the Founders{2} for it to be. However, that subject will be touched on in the upcoming posting on Constitutional matters. Suffice to say, Rep. Paul's words would have surprised those who wrote the Constitution, including the man who most influenced its construction and is sometimes called its "father" (James Madison), its greatest defender (Alexander Hamilton), the Father of the Country (George Washington), the nation's first Vice-President and a major indirect influence on the Constitution's content (John Adams), the writer of the Constitution (Gouvernor Morris), and even the originator of Rep. Paul school of Constitutional interpretation himself (Thomas Jefferson). Some historical examples will be noted to sustain these assertions so that readers do not think we are stating things we cannot prove ala what Rep. Paul has done on this matter.
Starting with President George Washington who inherited the Chicamunga Wars which had been going on since the end of the French and Indian War of 1763{3} as well as the Northwest Indian War which preceded his presidency by six years{4}, the President of the United States and former President of the Second Constitutional Convention did not ask for a formal declaration of war from the Congress to utilize the military in those conflicts with rival nations.
Nor did Washington's involvement of the military in the Whiskey Insurrection of 1794 under the advice of his adviser Alexander Hamilton,{5} and the Battle of Fallen Timbers fought that same year was the final battle of the ten year long Northwest Indian War (1785-1795) of which there was never a formal declaration of war. Likewise, in the Undeclared War with France under President John Adams{6}, there was not a single declaration of war issued yet the military was mobilized to fight and legislation was passed to make the nation ready including various Alien and Sedition Acts{7} which made evident the state of war the country was in at the time.
Moving onto President Thomas Jefferson whose constitutional hermeneutic Rep. Paul appears to subscribe to, the First Barbary War was entered into in 1801 by President Thomas Jefferson without the formality of a declaration of war and continued until 1805. The Congress did authorize the use of military force in the endeavour but by Rep. Paul's criteria, President Jefferson acted "illegally."
The first formal declaration of war was for the War of 1812 and followed the pattern that all formal declarations of war do; namely, the president requested it and the Congress then votes on it. If the president does not request it, the declaration of war is not delivered. This is how the matter has always been conducted in the nation's history starting with the War of 1812 fought under the presidency of the "Father of the Constitution" James Madison.
However, it is not often recognized by those who take the approach to the Constitution that Ron Paul takes that other wars were fought in the presidency of James Madison which did not involve a formal declaration of war. There was also the Battle of Tippecanoe in 1811, the Creek War (1813-1814) , and the Second Barbary War (1815). There was also the First Seminole War which started under Madison's presidency (roughly in 1814) and continued under his successor President James Monroe until 1818. And while numerous other examples could be noted both in that time period as well as throughout American history, it suffices to cover the first thirty years of American history to make the point this post is intended to make.
At no time did the Founding Fathers or their successors take the view of wars fought without a formal declaration of war as "unconstitutional" the way Rep. Ron Paul does. Furthermore, the John Adams-appointed Chief Justice of the Supreme Court (John Marshall) who established the principle of judicial review early in his tenure{8} never in thirty-five years on the bench declared a non-declaration of war military engagement as "unconstitutional."
There is in other words, a serious lack of support in the earliest examples of governance by those who either wrote or were closely affiliated with those who wrote the Constitution of the United States for a view on fighting wars that is currently being espoused by Rep. Ron Paul. And those who think Paul is somehow the "more Constitutional candidate"{9} would do well to consider this example as part of the lens from which they assess Rep. Paul's pretensions on this matter.
Notes:
{1} I refer here to HR 3664 the Tax Free Tips Act of 2007 and no, I do not favour this bill because it in any way benefits me (because it does not).
{3} The Chicamunga Wars did not end until 1794.
{4} The Northwest Indian Wars did not end until 1795.
{5} This example is mentioned because it was an important early step in the constitutional application of federal power by the commander in chief without the concurrence of the United States Congress to put down an armed rebellion.
{6} Adams was not at the Constitutional Convention but his writings (particularly Thoughts on Government) were among the sources drawn on by the participants at the convention in framing what was eventually ratified as the Constitution of the United States.
{7} Now is not the time to discuss these acts one of which is still in force today and has been used by President George W. Bush in the war on terror. Furthermore, funds were appropriated for building up the army and military vessels for future use if needed.
{8} With his decision in Marbury vs. Madison in 1803.
{9} And of course Paul on some issues gets right what many others get wrong -but his stance on the constitutionality or lack thereof of wars fought without a formal declaration of war is not one of them.
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