Whatever happened to Article I, Section 8, clause 11 of the US Constitution?
Ohio Congressman Dennis Kucinich has been prominent in the news lately because of his assertions that President Barack Obama unconstitutionally got us in another war without the Congress declaring it, this time with Libya.
Does Mr. Kucinich have an argument?
Article I, Section 8, clause 11 of the Constitution specifically give the Congress, and only the Congress to authority and power to declare war. The last time the United States followed this ever-important part of our law was nearly 70 years ago right after Pearl Harbor.
Since then we have been taken into unconstitutional wars by United Nations Security Council resolutions and other methods that all fall short of a formal declaration of war.
Certainly, the President does not have the authority to take our country to war. Many who love these overseas interventions, including Presidents often quote a different part of the Constitution. Frequently cited as justification for the President to act with a seemingly free reign in the initiation of foreign wars is Article II, Section 2 of the Constitution.
However, does this give the President the authority?
Article II, Section 2 states the President is the “commander-in-chief of the army and navy of the United States.”
This clause clearly gives the President to power to direct the war, not declare it.
Don’t believe me? Let’s see what Alexander Hamilton said while the President lacks the power to declare war, would have “the direction of war when authorized.”
James Madison said:
“. . . The power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature . . . the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.”
and
“The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war to the Legislature.”
George Washington said:
“The constitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject and authorized such a measure.”
In a message to Congress in 1805, President Thomas Jefferson said the following:
“Considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force in any degree which could be avoided.”
According to Tenth Amendment Center founder, Michael Boldin:
Some would claim, and news articles are already reporting on it, that the 1973 war powers resolution authorizes the President to start a war as long as it’s reported to Congress within 48 hours. Then, Congress would have 60 days to authorize the action, or extend it.
The only question you should have to ask for this would be – “where in the Constitution is congress given the authority to change the constitution by resolution?”
It doesn’t. And that resolution, in and of itself, is a Constitutional violation.
James Madison had something to say about such a plan when he wrote:
“The executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.”
War Powers resolution or no war powers resolution – without a Congressional declaration, the president is not authorized to start an offensive military campaign. Period.
The bottom line? By using US Military to begin hostilities with a foreign nation without a Congressional declaration of war, Barack Obama has committed a serious violation of the Constitution. While he certainly is not the first to do so in regards to war powers, it’s high time that he becomes the last.
Congressman Kucinich does have an argument and he is correct.
Image/CIA
