A further tutorial on the Constitution
Constitutional illiteracy is epidemic and alarming
The Constitution prohibits treaties that commit the United States to war if another country is attacked. The treaty process excludes the House of Representatives, whose consent is required for a declaration of war. Remember James Wilson to the Pennsylvania Ratification Convention: “This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.” Further, the U.S. Supreme Court affirmed in Reid v. Covert, 354 U.S. 1 (1957) that the treaty power is subordinate to the Constitution.
Of course, nothing in Article V of the Constitution would prohibit an amendment to authorize treaties to commit the United States to war if another nation is attacked. To my knowledge, no such amendment has ever been proposed in 234 years. But advocates possess a constitutional right to petition the government to ratify such an amendment. The defeat of the Versailles Treaty was a trial run which would not augur well for proponents. The treaty failed because President Woodrow Wilson’s insistence, over Senator Henry Cabot Lodge’s opposition, on a provision empowering the president to initiate war without a congressional declaration. Lodge’s Reservation 2 to the treaty provided:
“The United States assumes no obligation to preserve the territorial integrity or political independence of any other country or to interfere in controversies between nations — whether members of the League or not — under the provisions of Article X, or to employ the military or naval forces of the United States under any article of the treaty for any purpose, unless in any particular case the Congress, which under the Constitution has the sole power to declare war or authorize the employment of the military or naval forces of the United States, shall by act or joint resolution so provide.”
Crowning presidents with limitless, unconstitutional power to initiate war has been a joint venture between the Republican and Democratic Parties and the American people who continue to return to office Members of the House and Senate who chronically violate their oaths to support and defend the Constitution period, with no commas, semicolons, or question marks. Among other things, Democrats gave us Harry Truman’s unconstitutional war in Korea risking nuclear weapons and entailing millions of casualties and the involvement of 3 million Chinese soldiers. Taking a page from George Orwell’s 1984, President Truman likened the war to a “police action.” President Lyndon Johnson gave us the lies begetting the nearly unanimous 1964 Gulf of Tonkin Resolution and the Vietnam misadventure. President John F. Kennedy de facto commenced war against Castro’s Cuba with the Bay of Pigs invasion, which in turn occasioned the Cuban Missile Crisis. President Bill Clinton initiated war against Serbia after Congress denied his request for a declaration of war. President Bush’s war against Iraq would have been stillborn if then Senators Hillary Clinton and Joe Biden had filibustered the 2002 AUMF for Iraq.
Both parties and the American people have been in pari delicto in vandalizing the Constitution’s war powers.
The power of the purse contained in Article I, section 8, clause 1 and section 9, clause 7 is no constitutional substitute for a congressional declaration of war mandated by Article I, section 8, clause 11. It is a cardinal canon of constitutional and statutory interpretation that if two provisions are in tension or opposition, the more specific defeats the more general.
The Constitution does not confine the United States to war or nothing in response to foreign conflicts. Congress may invoke trade or economic sanctions, for example, the Embargo Act of 1807 or the Non-Intercourse Act of 1809. Congress may also declare a “quasi-war” short of full-scale war. Bas v. Tingy (1800); Talbot v. Seaman (1801); Little v. Barreme (1804).
Further, Congress may declare the United States a co-belligerent in a foreign conflict, which would authorize the systematic provision of military assistance to the nation we supported.
(A co-belligerent under international law is subject to military attack or invasion on the same terms as a belligerent. A nation becomes a co-belligerent by sustained and systematic support of the military actions of a belligerent. Congress has never declared the United States a co-belligerent with Ukraine in the ongoing war with Russia. A congressional declaration of co-belligerency is required to make the tens of billions of U.S. military assistance to Ukraine constitutional).
Constitutional purity is synonymous with the rule of law as opposed to the rule of the jungle or the king as law. There is no limiting principle that would quarantine a single constitutional violation against infecting the entire document. Justice Louis D. Brandeis amplified in Olmstead v. United States (1928): “Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”
Reflect on Robert Bolt’s A Man for All Seasons and Sir Thomas More’s refusal to bend the law to accommodate King Henry VIII’s international pragmatism:
ROPER: So now you'd give the Devil benefit of law!
MORE: Yes. What would you do? Cut a great road through the law to get after the Devil?
ROPER: I'd cut down every law in England to do that!
MORE: Oh? And when the last law was down, and the Devil turned round on you--where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast--man's laws, not God's--and if you cut them down--and you're just the man to do it--d'you really think you could stand upright in the winds that would blow then? Yes. I'd give the Devil benefit of law, for my own safety's sake.
If the Declare War Clause of the Constitution is violated with impunity, a precedent is set which lies around like a loaded weapon ready to be used to destroy our entire constitutional edifice, including the Bill of Rights and Civil War Amendments. The January 6th insurrection almost succeeded in reducing the Constitution to rubble.
Constitutional illiteracy among the American people and officeholders at all levels is epidemic. Constitutional literacy is not taught in any high school, university, law school, or otherwise. It is the nation’s most urgent need. What is required is in plain sight. Education, education, and more education in the Constitution.
Bruce Fein