Points to Ponder:
By not paying me reverence in the persons of my ministers, they have lost respect for the latter and persecuted them because of the many sins and faults they saw in them. If in truth the reverence they had for them had been for my sake, they would not have cut it off on account of any sin in them. For no sin can lessen the power of this sacrament, and therefore their reverence should not lessen either. When it does, it is against me they sin. [St. Catherine of Siena: From Her Dialogues With God the Father]
Saturday, June 26, 2021
Tuesday, June 22, 2021
Points to Ponder:
[N]o one has excuse to say, “I am doing no harm, nor am I rebelling against holy Church. I am simply acting against the sins of evil pastors.” Such persons are deluded, blinded as they are by their own selfishness…. It is me they assault, just as it was me they reverenced. To me redounds every assault they make on my ministers: derision, slander, disgrace, abuse. Whatever is done to them I count as done to me. [St. Catherine of Siena: From Her Dialogues With God the Father]
[N]o one has excuse to say, “I am doing no harm, nor am I rebelling against holy Church. I am simply acting against the sins of evil pastors.” Such persons are deluded, blinded as they are by their own selfishness…. It is me they assault, just as it was me they reverenced. To me redounds every assault they make on my ministers: derision, slander, disgrace, abuse. Whatever is done to them I count as done to me. [St. Catherine of Siena: From Her Dialogues With God the Father]
More on Wars Fought Without A Formal Declaration, Implied Powers, Early Supreme Court Precedents, Etc.
This is a draft from social media mostly composed on December 12, 2011.
This is written to in some respect complement two previous notes written which pertain to the subject of declaring war and the Constitutional issues contained therein.{1} My previous words will be in italics.
Having noted those things at the outset, it is interesting to note in a brief ado how so many writings in this medium are either written or republished{2} to address issues that come up in the standard stream of status line conversations and the like. The one you are reading now was occasioned by implication when I spotted the following typical misunderstanding of the Constitution as it pertains to the subject of war late last week. Without further ado...
Well, let's look at the facts. Are we "at war"? The congressional authorization allows operations in Afghanistan and Iraq, in response to terrorism.
Never mind the questionable Constitutionality of that, as the Constitution only contemplates formal declarations of war,
My initial response was somewhat curt and read as follows:
No it does not. Few things annoy me more than so-called "Constitutionalists" who evince such ignorance of what the Founders intended and not a few completely misunderstand what is constitutionally permissible where war is concerned under the Constitution.
On the Constitutional Standing of Wars Fought Without A Formal Declaration of War (circa December 26, 2007)
Not that the Founders themselves who wrote the Constitution would have any idea (and demonstrate through their actions in governing) what their own creation actually allowed or did not of course ;)
#######
I received the following response from the party the latter text was addressed to earlier today:
Shawn, with the exception of the Barbary Wars, which were authorized under the Constitution's "Piracy" clause, I believe I am correct in saying that the wars mentioned in your article which preceded 1812 were all on US soil.
Now it is not often that I am given an answer that completely surprises me but this one achieved that. Here is the problem with what was asked above in a nutshell: the reference to US soil is ambiguous. If we are talking about what currently exists as part of the United States then sure, that would be true but we cannot approach this matter anachronistically. Having noted that, let us consider all the wars I noted in the Ron Paul note{3} that preceded the War of 1812 as per your question starting with The Chicamunga Wars (1776-1794).
The Chicamunga Wars (1776-1794) were a series of wars technically spanning back to the end of the French and Indian War (1755-1763) but where the United States is concerned they are dated from 1776 when the colonies declared their independence from Great Britain. They were fought both in areas which were not part of the colonies though some of the battles and raids were fought in the western parts of some of the colonies.{4} But most of the fighting was west of the Appalachians, an area that the British in agreeing to the Treaty of Paris of 1763{5} in had ruled was off limits to colonial expansion. So if we were to access this matter technically and comtemporary to the time in question, the answer as to whether these wars were fought on US soil would be "yes and no." But either way, the parts of these wars that spilled over into the administration of President George Washington (1789-1797){6} were in no cases whatsoever fought under a formal declaration of war.
With the Northwest Indian Wars (1785-1795), they were fought in part because the Indians of various tribes and nations in those territories contested the claims to the land that the United States made. For that reason, to call the wars fought on that soil US soil is extremely anachronistic to no small degree. As with the Chicamunga Wars, the parts of these wars under the administration of President George Washington{7} were not fought under a formal declaration of war. So to answer your question with something that recognizes the state of thing at that time, the answer to your question would be "no" as those territories were not settled jurisdiction-wise between not only the Indian nations but also with Great Britain{8} at the time of the conflicts in question.
The Quasi-War with France under the administration of President John Adams was fought almost entirely on water so the answer where that one is concerned is a resounding no. And finally, the Battle of Tippecanoe (1811) could be answered with a "yes" to your inquiry because it was fought in the Indiana Territory after a pair of treaties were signed in 1795{9} which settled the jurisdiction questions of that area. So with all the wars noted prior to 1812, virtually none of them were fought on US soil if we judge the latter by what it was in its day rather than what it has become.{10} Having looked briefly at the wars you mentioned, let us now consider the First Barbary War along with the nature and purpose of the war powers in the Constitution of the United States.
You had stated that the Barbary Wars were were authorized under the Constitution's "Piracy" clause. Of course if this was so, then you need to ask yourself why this did not occur to the Founders who were operating government at the time? But anyway, let us touch on the First Barbary War now and see if what happened corresponds to what you have claimed. Among the first in President Jefferson's State of the Union address on December 8, 1801{11}, he apprised the congress of certain defensive measures he had taken:
The declaration of war feature is for the United States to initiate war. However, if there is an attack on the United States by another nation or group that has declared war on us{13}, a formal declaration is not required. That said though, since The First Barbary War it has been customary to issue authorizations to use force and even at times lesser statues for much more limited military engagements. Hamilton explained the way out of Jefferson's dilemma as I noted here and will cite at the present time:
{2} Often subjects repeat themselves later on in different print communication mediums and in those cases, if either time is not on my side to write anew on a subject or something previously written addresses the matter to at least a macro extent, oftentimes I will republish such a writing either from other writing mediums or within the various notes that have been posted to Facebook in my time here.
{3} See the first link of footnote one.
{4} Such as a bit of western Virginia and parts of North Carolina and Georgia.
{5} This was the treaty signed between Great Britain, France, and Spain in Paris formally ending the French and Indian War.
{6} That also goes for the parts of the war fought under the old Articles of Confederation (1777-1788) whereby the Continental Congresses at no time called for any formal declaration of war in any of these instances whatsoever.
{7} See footnote six.
{8} The British had not conceded the territories outside of the original colonies and they still had a claim of sorts on the Northwest Territory areas themselves. And though I am loathe to quote anything frok Wikipedia, on this matter they have a very succinct paragraph that explains it well so I will go against my ordinary inclinations and reference them at this time. To wit:
The Ohio territory was subject to overlapping and conflicting claims by the states of Massachusetts, Connecticut, New York, and Virginia, in addition to those by the Shawnee, Mingo, Lenape and other actual inhabitants, who were no longer considered tributary to the Six Nations. While the British had suffered a major defeat at the Battle of Yorktown (1781), there had been no decisive defeat for their Indian allies in the Northwest Territories. In addition, the Indian tribes in the Old Northwest were not parties to the treaty. Many leaders, especially Little Turtle and Blue Jacket, refused to recognize United States claims to the area northwest of the Ohio River. The British remained in possession of their Great Lakes forts, through which they continued to supply Indian allies with trade items and weapons in exchange for furs. Some in the British government wished to maintain a neutral Indian territory between Canada and the United States, but most agreed that immediate withdrawal was not possible without sparking a new Indian war.[2] The lingering British presence was not formally ended until their withdrawal from the Great Lakes forts pursuant to the Jay Treaty negotiated in 1794, and it would continue informally afterward until the War of 1812. [Wikipedia: Excerpt from their article The Northwest Territory]
{9} I refer here to The Jay Treaty (ratified by the Senate on June 24, 1795) and Treaty of Greenville (signed on August 3, 1795) which ended Northwest Territory jurisdictional questions with regards to the British and the participants in the Northwest Indian War respectively.
{10} The Quasi-War being fought almost excluslvely on the ocean excepted of course.
{11} President Thomas Jefferson: State of the Union Address (circa December 8, 1801)
{12} Tripolitania was roughly one fifth of what is present day Libya.
{13} As the Dey of Tripoli did in the weeks after Jefferson's inauguration.
This is a draft from social media mostly composed on December 12, 2011.
This is written to in some respect complement two previous notes written which pertain to the subject of declaring war and the Constitutional issues contained therein.{1} My previous words will be in italics.
Having noted those things at the outset, it is interesting to note in a brief ado how so many writings in this medium are either written or republished{2} to address issues that come up in the standard stream of status line conversations and the like. The one you are reading now was occasioned by implication when I spotted the following typical misunderstanding of the Constitution as it pertains to the subject of war late last week. Without further ado...
Well, let's look at the facts. Are we "at war"? The congressional authorization allows operations in Afghanistan and Iraq, in response to terrorism.
Never mind the questionable Constitutionality of that, as the Constitution only contemplates formal declarations of war,
My initial response was somewhat curt and read as follows:
No it does not. Few things annoy me more than so-called "Constitutionalists" who evince such ignorance of what the Founders intended and not a few completely misunderstand what is constitutionally permissible where war is concerned under the Constitution.
On the Constitutional Standing of Wars Fought Without A Formal Declaration of War (circa December 26, 2007)
Not that the Founders themselves who wrote the Constitution would have any idea (and demonstrate through their actions in governing) what their own creation actually allowed or did not of course ;)
#######
I received the following response from the party the latter text was addressed to earlier today:
Shawn, with the exception of the Barbary Wars, which were authorized under the Constitution's "Piracy" clause, I believe I am correct in saying that the wars mentioned in your article which preceded 1812 were all on US soil.
Now it is not often that I am given an answer that completely surprises me but this one achieved that. Here is the problem with what was asked above in a nutshell: the reference to US soil is ambiguous. If we are talking about what currently exists as part of the United States then sure, that would be true but we cannot approach this matter anachronistically. Having noted that, let us consider all the wars I noted in the Ron Paul note{3} that preceded the War of 1812 as per your question starting with The Chicamunga Wars (1776-1794).
The Chicamunga Wars (1776-1794) were a series of wars technically spanning back to the end of the French and Indian War (1755-1763) but where the United States is concerned they are dated from 1776 when the colonies declared their independence from Great Britain. They were fought both in areas which were not part of the colonies though some of the battles and raids were fought in the western parts of some of the colonies.{4} But most of the fighting was west of the Appalachians, an area that the British in agreeing to the Treaty of Paris of 1763{5} in had ruled was off limits to colonial expansion. So if we were to access this matter technically and comtemporary to the time in question, the answer as to whether these wars were fought on US soil would be "yes and no." But either way, the parts of these wars that spilled over into the administration of President George Washington (1789-1797){6} were in no cases whatsoever fought under a formal declaration of war.
With the Northwest Indian Wars (1785-1795), they were fought in part because the Indians of various tribes and nations in those territories contested the claims to the land that the United States made. For that reason, to call the wars fought on that soil US soil is extremely anachronistic to no small degree. As with the Chicamunga Wars, the parts of these wars under the administration of President George Washington{7} were not fought under a formal declaration of war. So to answer your question with something that recognizes the state of thing at that time, the answer to your question would be "no" as those territories were not settled jurisdiction-wise between not only the Indian nations but also with Great Britain{8} at the time of the conflicts in question.
The Quasi-War with France under the administration of President John Adams was fought almost entirely on water so the answer where that one is concerned is a resounding no. And finally, the Battle of Tippecanoe (1811) could be answered with a "yes" to your inquiry because it was fought in the Indiana Territory after a pair of treaties were signed in 1795{9} which settled the jurisdiction questions of that area. So with all the wars noted prior to 1812, virtually none of them were fought on US soil if we judge the latter by what it was in its day rather than what it has become.{10} Having looked briefly at the wars you mentioned, let us now consider the First Barbary War along with the nature and purpose of the war powers in the Constitution of the United States.
You had stated that the Barbary Wars were were authorized under the Constitution's "Piracy" clause. Of course if this was so, then you need to ask yourself why this did not occur to the Founders who were operating government at the time? But anyway, let us touch on the First Barbary War now and see if what happened corresponds to what you have claimed. Among the first in President Jefferson's State of the Union address on December 8, 1801{11}, he apprised the congress of certain defensive measures he had taken:
I sent a small squadron of frigates into the Mediterranean, with assurances to that power of our sincere desire to remain in peace, but with orders to protect our commerce against the threatened attack. The measure was seasonable and salutary. The Bey had already declared war. His cruisers were out. Two had arrived at Gibraltar. Our commerce in the Mediterranean was blockaded and that of the Atlantic in peril.
The arrival of our squadron dispelled the danger. One of the Tripolitan cruisers having fallen in with and engaged the small schooner Enterprise, commanded by Lieutenant Sterret, which had gone as a tender to our larger vessels, was captured, after a heavy slaughter of her men, without the loss of a single 1 on our part. The bravery exhibited by our citizens on that element will, I trust, be a testimony to the world that it is not the want of that virtue which makes us seek their peace, but a conscientious desire to direct the energies of our nation to the multiplication of the human race, and not to its destruction.He then went on to mention that he had gone as far as he could without congressional authorization of further action:
Unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense, the vessel, being disabled from committing further hostilities, was liberated with its crew.
The Legislature will doubtless consider whether, by authorizing measures of offense also, they will place our force on an equal footing with that of its adversaries. I communicate all material information on this subject, that in the exercise of this important function confided by the Constitution to the Legislature exclusively their judgment may form itself on a knowledge and consideration of every circumstances of weight.Notice how President Jefferson mentioned "authorizing measures of offense" and not specifically "a declaration of war"? And if you look at the entire text of his State of the Union address, there is never a mention of pirates anywhere in the text. The reason is this was not a matter of a stray ship or two but instead an actual state or nation we were dealing with here{12} and the piracy clause is not something that dealt with nations. Furthermore, the piracy clause was offensive in nature insofar that it allowed for not only defining piracy but also punishing it which involves an active or offensive element. But if you read Presdient Jefferson's State of the Union, he took merely defensive actions. Therefore, President Jefferson did not have recourse to the Constitution's "Piracy" clause or feel that he was authorized to act under it in this instance. It stands therefore to look at if the Congress authorized any offensive action under the Constitution's "Piracy" clause since we all know they issued no formal declaration of war. Here is the relevant text of the Congress' authorization of President Jefferson to take offensive measures against the regency of Tripoli and its Bey.
The declaration of war feature is for the United States to initiate war. However, if there is an attack on the United States by another nation or group that has declared war on us{13}, a formal declaration is not required. That said though, since The First Barbary War it has been customary to issue authorizations to use force and even at times lesser statues for much more limited military engagements. Hamilton explained the way out of Jefferson's dilemma as I noted here and will cite at the present time:
An early controversy revolved about the issue of the President's powers and the necessity of congressional action when hostilities are initiated against us rather than the Nation instituting armed conflict. The Bey of Tripoli, in the course of attempting to extort payment for not molesting United States shipping, declared war upon the United States, and a debate began whether Congress had to enact a formal declaration of war to create a legal status of war. President Jefferson sent a squadron of frigates to the Mediterranean to protect our ships but limited its mission to defense in the narrowest sense of the term. Attacked by a Tripolitan cruiser, one of the frigates subdued it, disarmed it, and, pursuant to instructions, released it. Jefferson in a message to Congress announced his actions as in compliance with constitutional limitations on his authority in the absence of a declaration of war. Hamilton espoused a different interpretation, contending that the Constitution vested in Congress the power to initiate war but that when another nation made war upon the United States we were already in a state of war and no declaration by Congress was needed. Congress thereafter enacted a statute authorizing the President to instruct the commanders of armed vessels of the United States to seize all vessels and goods of the Bey of Tripoli "and also to cause to be done all such other acts of precaution or hostility as the state of war will justify . . ." But no formal declaration of war was passed, Congress apparently accepting Hamilton's view. [LINK]It was not long after Congress voted on what we would call today an "authorization to use force" to give President Jefferson the sanction to take offensive measures against the Dey. The aforementioned measure included authorizing President Jefferson to instruct armed American vessel commanders to seize the vessels of the Dey as well as all his goods and also "to cause to be done all such other acts of precaution or hostility as the state of war will justify."
In other words, Congress circa March of 1802 recognized a state of war existed between the Pasha of Tripoli and the United States and accepted Hamilton's rationale on what the Constitution allowed for in the implementation of the war contained therein. Later on August 11, 1801, the Supreme Court handed down a decision in Talbot vs. Seeman{14} and in the ruling stated the following:
And while Hamilton's exposition{17} was the most influential explanations on this matter -in part because of Marshall's reforms of the Supreme Court decision process synthesizing the opinion writing process to make it more focused, they hardly innovated the concept. Indeed the pre-Marshall Supreme Court on August 15, 1800 with regards to another matter from the Quasi-War with France handed down a ruling in Bas vs. Tingy which set the first markers in place for this matter judicially.
In reviewing the above link, you can read all four Justices who ruled in favour of the lower court on the matter and interestingly enough, Justice Bushrod Washington{18} who was involved in Bas vs. Tingy was the justice who handed down the circuit ruling in Talbot vs. Seeman which at that point was on appeal to the supreme court.
In summary, there is ample cogent evidence from the early days of the Republic to refute the position of the so-called "Constitutional Conservatives" that a war requires a formal Declaration of War by Congress to thereby by considered constitutional.
Notes:
{1} The notes were published both to Rerum Novarum and then later to Facebook. The first note in its Facebook version was published on January 13, 2009 with the title On Ron Paul and Wars Fought Without a Formal Declaration. It had previously been published to this site on December 26, 2007 with the title On the Constitutional Standing of Wars Undertaken Without a Formal "Declaration of War". The second note in its Facebook version was published on November 14, 2009 with the title Clarifying a Previous Facebook Note Posting on a Constitutional Issue. It was previously published to this site on March 7, 2009 under the title Clarification of a Previous Posting In Lieu of a Recent Posting.
"The whole powers of war being by the Constitution of the United States vested in Congress, the acts of that body can alone be resorted to as our guides in this inquiry. It is not denied, nor in the course of the argument has it been denied, that Congress may authorize general hostilities, in which case the general laws of war apply to our situation, or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed."Notice the delineation that Marshall makes between "general hostilities"{15} or "partial hostilities."{16}
And while Hamilton's exposition{17} was the most influential explanations on this matter -in part because of Marshall's reforms of the Supreme Court decision process synthesizing the opinion writing process to make it more focused, they hardly innovated the concept. Indeed the pre-Marshall Supreme Court on August 15, 1800 with regards to another matter from the Quasi-War with France handed down a ruling in Bas vs. Tingy which set the first markers in place for this matter judicially.
In reviewing the above link, you can read all four Justices who ruled in favour of the lower court on the matter and interestingly enough, Justice Bushrod Washington{18} who was involved in Bas vs. Tingy was the justice who handed down the circuit ruling in Talbot vs. Seeman which at that point was on appeal to the supreme court.
In summary, there is ample cogent evidence from the early days of the Republic to refute the position of the so-called "Constitutional Conservatives" that a war requires a formal Declaration of War by Congress to thereby by considered constitutional.
Notes:
{1} The notes were published both to Rerum Novarum and then later to Facebook. The first note in its Facebook version was published on January 13, 2009 with the title On Ron Paul and Wars Fought Without a Formal Declaration. It had previously been published to this site on December 26, 2007 with the title On the Constitutional Standing of Wars Undertaken Without a Formal "Declaration of War". The second note in its Facebook version was published on November 14, 2009 with the title Clarifying a Previous Facebook Note Posting on a Constitutional Issue. It was previously published to this site on March 7, 2009 under the title Clarification of a Previous Posting In Lieu of a Recent Posting.
{2} Often subjects repeat themselves later on in different print communication mediums and in those cases, if either time is not on my side to write anew on a subject or something previously written addresses the matter to at least a macro extent, oftentimes I will republish such a writing either from other writing mediums or within the various notes that have been posted to Facebook in my time here.
{3} See the first link of footnote one.
{4} Such as a bit of western Virginia and parts of North Carolina and Georgia.
{5} This was the treaty signed between Great Britain, France, and Spain in Paris formally ending the French and Indian War.
{6} That also goes for the parts of the war fought under the old Articles of Confederation (1777-1788) whereby the Continental Congresses at no time called for any formal declaration of war in any of these instances whatsoever.
{7} See footnote six.
{8} The British had not conceded the territories outside of the original colonies and they still had a claim of sorts on the Northwest Territory areas themselves. And though I am loathe to quote anything frok Wikipedia, on this matter they have a very succinct paragraph that explains it well so I will go against my ordinary inclinations and reference them at this time. To wit:
The Ohio territory was subject to overlapping and conflicting claims by the states of Massachusetts, Connecticut, New York, and Virginia, in addition to those by the Shawnee, Mingo, Lenape and other actual inhabitants, who were no longer considered tributary to the Six Nations. While the British had suffered a major defeat at the Battle of Yorktown (1781), there had been no decisive defeat for their Indian allies in the Northwest Territories. In addition, the Indian tribes in the Old Northwest were not parties to the treaty. Many leaders, especially Little Turtle and Blue Jacket, refused to recognize United States claims to the area northwest of the Ohio River. The British remained in possession of their Great Lakes forts, through which they continued to supply Indian allies with trade items and weapons in exchange for furs. Some in the British government wished to maintain a neutral Indian territory between Canada and the United States, but most agreed that immediate withdrawal was not possible without sparking a new Indian war.[2] The lingering British presence was not formally ended until their withdrawal from the Great Lakes forts pursuant to the Jay Treaty negotiated in 1794, and it would continue informally afterward until the War of 1812. [Wikipedia: Excerpt from their article The Northwest Territory]
{9} I refer here to The Jay Treaty (ratified by the Senate on June 24, 1795) and Treaty of Greenville (signed on August 3, 1795) which ended Northwest Territory jurisdictional questions with regards to the British and the participants in the Northwest Indian War respectively.
{10} The Quasi-War being fought almost excluslvely on the ocean excepted of course.
{11} President Thomas Jefferson: State of the Union Address (circa December 8, 1801)
{12} Tripolitania was roughly one fifth of what is present day Libya.
{13} As the Dey of Tripoli did in the weeks after Jefferson's inauguration.
{14} A controversy from the previous Quasi-War with France under President John Adams circa 1798 under which no formal declaration of war was declared.
{15} Which is basically total war either initiated by the United States or responding to a threat where the nature is total and thus and requiring a formal declaration.
{15} Which is basically total war either initiated by the United States or responding to a threat where the nature is total and thus and requiring a formal declaration.
{16} Which is less than total war often initiated by other nations or peoples and does not require a formal declaration.
{17} Followed by that of Chief Justice Marshall's.
{18} A nephew of George Washington.
Progressives Are Livid at Kyrsten Sinema Because She Understands Long-Term Consequences
Senator Krysten Sinema is seemingly one of the very few Democrats in either chamber of Congress who realizes that the same filibuster the Democrats want to quash in the majority is what they will want when in the minority.
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