With the recent bombing of Iran (and other events) the Constitution has become a hot a topic of general conversation these days. From the rights of illegal immigrants, to the call for “No Kings,” to the ending of nationwide injunctions, to due process denied to J6ers, along with the action in Iran, many of us seem to be greatly concerned that the Constitution is being violated. That concern is probably a good thing, if, that is, it means folks are actually reading and considering our six page founding document, and not just using it as an empty slogan.
On a personal note, I have been hoping for this day since 1964 when I was eleven years old. At that time, being a grieving yet gung ho devotee of the recently assassinated President Kennedy, I was shocked to learn that some folks were protesting against the Vietnam War. In the newspaper account, one of the protesters let it be known that if someone wanted to understand his opposition to the war, they should read the Constitution. That seemed a fair challenge, so I did read it, and found that it did indeed call for Congress to declare war, which had not been done. Even though the Tonkin Gulf Resolution was soon used as a fig leaf, it never, in my mind, satisfied that constitutional requirement.
In the years that soon followed, I was always disappointed to find that I was the only one at any anti war protest who was there to defend the Constitution. Others, mostly leftists, would inform me that it was an immoral war, to which I would respond that was why we would never have declared it if we had followed constitutional process. They didn't have an answer to that, but still didn't embrace the Constitution. Alas, there were also no conservatives, at that time, with the temerity to do so. As the years rolled along, I came to realize that most folks (wrongly) considered the Constitution as something that the government used to force the people to do something distasteful, kind of like taking nasty medicine (think the civil rights movement). The idea that the people should insist that the government adhere to the Constitution didn't even enter their minds.
Using the intervening years before the Kuwait War, I developed a rationale about why it is such a good idea to follow the Constitution, and declare war. By insisting war be declared before engaging in action, we force ourselves to come to clear minded thinking about the goals of said war, and to achieve a clear national consensus that the people actually do want to fight it. In short, following constitutional guidelines is a way to prevent needless war, and to win the ones we do decide to fight.
In August of 1990, following Saddam Hussein's invasion of Kuwait, an opportunity came to present this thinking in public. I did so, sending it to my then US Representative Pat Schroeder, and calling in to various talk radio shows. In the end, she sponsored a bill using that rationale, which also appeared in the final Authorization for the Use of Military Force.
The war over Kuwait in 1991 was followed by the war in Afghanistan in 2001, and the (second) war in Iraq in 2003, both of which also gained Congress's approval of AUMF's (Authorization of the Use of Military Force). Such authorizations come short, in my opinion, of a declaration of war. There is, however, a little noted power in the Constitution that enables Congress to make military decisions short of declared war.
The pertinent constitutional passages are found in Article 1, section 8. In subsection, or paragraph, 11 is found the passage that empowers Congress to declare war. Just previous to that passage, in subsection 10, Congress has the power “To define and punish Piracies and Felonies on the high Seas, and Offenses against the Law of Nations.” This is the actual basis for Congress to authorize the use of force short of war.
This is a very important constitutional stipulation, especially in this era of irregular, asymmetrical warfare. By using this power effectively, we can be flexible enough to maintain our national security in a changing world, and yet remain faithful to our Constitution.. By making open and purposeful use of this power, we would make it to where the whole world would know when we are debating about our response to some foreign threat. They would know when we were just talking, and more importantly, they would know when we have made a decision and are moving into action. Certainly any operational details must be kept strictly confidential, but once the decision is made by our Congress, the Executive would be authorized to respond with military force, at a time of their choosing, within the limits of the resolution. What's more, these resolutions should probably have sunset provisions to prevent their misuse as some carte blanc permission for future administrations to wage forever wars.
This constitutional process could have been used to our advantage in the recent situation regarding Iran's plan to acquire nuclear weapons. Years ago we could have, and should have, agreed to authorize the President to take whatever steps might be necessary to prevent the Islamic Republic of Iran from acquiring nuclear weapons. Their pursuit of such weapons is, first of all, a violation of the non proliferation treaty, so it is an offense against the law of nations. Secondly, given the suicidal martyr focus of that regime, them having nuclear weapons is a dire threat to our national (and the world's) security. We could have mustered a majority in Congress to vote for that authorization twenty years ago. Or even two months ago. It would have been best to get authorization in the President's hands a while back though, because waiting until the last minute removes the element of surprise
If we had done that, events might very well have played out exactly as they have, with some important improvements. President Trump could have had an even stronger hand in negotiations, with a clear understanding by all that our nation was behind him. Then, as now, the threat could have been minimized by the bombs, but the Constitution would have been properly applied, and thereby defended.
The second thing is that when we work our system the way it is designed, and truly debate when the threat of war looms, the deliberations of our Congress might carry great weight globally. By insisting on open public debate about any particular war, we could use that congressional debate, in a creative manner, as an effective enhancement of our negotiating strength. Some random congress person could say something that causes a foreign adversary to realize we see what they are doing, and thus modify their actions at that moment, obviating any need for a new law. Effectively using our constitution's stipulations in that manner might be a way to avoid waging a war at all.
That brings up one short, but vital, aside. A lot of folks have begun to lose faith in our system of government, but the eternal truth is that our system, like any system, only works when we work our system. Instead of feeling defeat and despair about what has been done to foul and degrade our system, we should envision how much we could gain by applying our system of self government, which has somehow miraculously survived, in the way that the founders designed it to be applied.
Back to the subject of war. Virtually any cause to use military force should be referred for congressional approval prior to kinetic action commencing. The only exception is in the case of surprise attack, when there might be no time for Congress to meet. That is the precise eventuality that the War Powers Act was intended to provide for.
That is how we could, and should, deal with war. The truth, however, is that we have forsaken the Constitution in this regard, and have instead, shamefully and unwittingly, embraced the dubious charms of militarism. Militarism is a term used with some hesitation, but it is nonetheless used accurately. Consider the case. Before we, as a nation, take kinetic military action, we aren't allowed to have public, or even congressional, debate about it. The fear must be, one assumes, that the information regarding the decision for war is just too sensitive.
After the action, and, God forbid, during any subsequent combat, our troops are engaged in the field, so any debate on the right or wrong of the policy must be muted, lest it further endanger or demoralize the troops. To sum up: We have a situation where those who control our military power are able to use it however and whenever they choose, for reasons that ought not be publicly opposed, either before or after the fact.
This obviously fits the definition of militarism. In fact, if we care to look we can see a strain of militaristic thinking overriding constitutional thinking going clear back to 1950. There is an old saying that Rome was not built in a day. The pertinent addendum to that is that Rome did not fall in a day either. In fact, what we think of as the greatness of Rome, with the opulent wealth, the games, the extensive empire, the commerce and roads, mostly grew after the republic had fallen.
There is no doubt that a Ceasar, or a dictator, once in control of a failing republic, can muster, mobilize and coordinate the resources of the nation in a way that a republic, especially a failing republic, with its corruption and dysfunction, can't match.
The fatal flaw with this approach is that by ignoring and obviating the republic (in our case, the Constitution) the nation loses the citizenship, love of nation and republican virtues in the people which can thrive only in a living republic. So as time goes on, there are far fewer resources, especially human resources, for succeeding dictators to call upon. Eventually, no one is left who cares to defend the national frontiers, and barbarians destroy the remnants of the once glorious republic.
In the case of Rome, the true decline started when Caesar crossed the Rubicon, to, in an adversarial manner, assume command of the nation. In America, probably the first instance of our stumbling regarding constitutional war making was, as mentioned, in 1950 when President Truman ignored constitutional process while getting us into the Korean War. This is not a trivial matter either, because subverting our republic could well be the long term strategic goal of our enemies.
Foreign adversaries might have been outsmarting us then, and in like manner playing us today. In a battle of civilizations, any enemy of a republic would always see constitutional alienation as a most effective tactic.. Inducing us into misusing war powers will always look like a good plan to any Marxist, dictatorial or theocratic foe because of the way it alienates the American people from their own Constitution. Consider how this might have been planned in 1950.
The Russians always were a bunch of chess playing schemers. This scheme, if it is not just a conspiracy theory, is a fine example of a chess gambit. First, they concocted a reason to temporarily exit, to boycott, the UN. It was the choice of the USSR to do so in January of 1950, in protest of the fact that the UN admitted only Nationalist China, under Chiang Kai-Shek, and excluded Mainland Red China under Mao Zedong.
Then, in June of 1950, North Korea invaded South Korea. The USSR (which would have seen the invasion coming) was still boycotting the UN. President Truman was striving to gain the UN credence as a germinal world government. It was knowingly stated that it would probably take a couple of weeks for Congress to pass a Declaration of War. Truman knew that if he raised the issue in Congress, the USSR would be aware of it and walk back into the UN. They could then, as a permanent member of the Security Council, veto any UN commitment in Korea, thereby isolating America in its declared war in Korea.
So Truman went quickly to the UN, got virtually unanimous approval for war, and operated under that authority to conduct the war. Then, with UN authority in hand, he was embarrassed into denying the need for congressional approval, calling it not a war, but a “police action,” The American people were told that for some nebulous reason arising from modernism, we shouldn't actually declare war these days. But where, precisely, in the Constitution, is the President given the power to conduct Police Actions?
The point remains that foreign foes have every reason to try to mount challenges, through the asymmetrical means our military might forces them to choose, which are intended to stress our constitutional system and weaken us as a nation. This mistaken militaristic thinking, deciding that constitutional due process must be ignored, began with Truman in 1950, but it has been repeated many times since then. A plethora of wrong headed decisions to engage in military actions have been made, based on the so called conventional wisdom that the Constitution is somehow obsolete in this nuclear age, so we must go to war based on the impulses of one man. The antidote to this mistake, which is possibly an ongoing attack on our republic, is to redouble our fealty to the Constitution.
Even in this latest instance, while one can applaud the efficiency, precision, and minimal loss of life of the B2 strike on Iran, we could still do better. Even though President Trump could technically be considered for impeachment for this act, he won't be. Especially given the decades long history of other presidents doing the same kind of thing. But what he, and we, should consider is that some other person will occupy that office in just a few short years. The well thought out impact of this latest raid demonstrated that President Trump is sincerely a man of peace, who doesn't relish human death, nor does he seem to consider violence a preferred means of political resolution.
With that spirit guiding our national mind, we should hope he, and we, and the presidents and people who follow, will see that the surest way to minimize the future threat of America engaging in unnecessary death and war is to turn back to the Constitution. Whenever time allows, Congress should debate articles of war, or any military action short of war. Congress should soberly and publicly decide whether or not this greatest nation in human history will once again enter into the horrors of using our weaponry against other living, breathing human beings. That is the best way for us to minimize the use of force, and to preserve our precious Constitution.