How The American People Lost Control of “The War Powers”
It must be asked, How is it that the people have lost control of the war powers when the Constitution clearly stipulates that war must be declared by Congress? To answer this question, we need to travel back in time to the end of World War II. It is no coincidence that no declaration of war has been issued since the US entered the Great War. It so happens that the usurpation of the war powers began in earnest upon entry into the United Nations.
In 1945, Ambassador J. Reuben Clark, Jr., a scholar in the field of international law, prepared an analysis of the UN Charter. He concluded that the Charter “is a war document not a peace document,” and that it “is built to prepare for war, not to promote peace.”
[T]here is no provision in the Charter itself that contemplates ending war. It is true the Charter provides for force to bring peace, but such use of force is itself war…. Not only does the Charter Organization not prevent future wars, but it makes practically certain that we shall have future wars, and as to such wars it takes from us the power to declare them, to choose the side on which we shall fight, to determine what forces and military equipment we shall use in the war, and to control and command our sons who do the fighting.
This predicament could not be more alien to the intention of the framers of our Constitution. Here is what Alexander Hamilton said about the war powers in Federalist Paper #69.
The President is to be the “commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States.
The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor.
The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.
It is easy to see, then that the framers wished to divide the war-powers. The executive role was to be subordinate to the legislature. In this way, it was seen that either an attack by a foreign power or an act of the legislature would be required in order to break the condition of peace. The executive’s role was to restore the peace by use of the military either in defense of an attack or by commanding the armed forces granted to his use through a declaration of war. One also notices how the states retain their militias and the federal government has no permanent use of them. Here is a check against the military held by the several states. Unfortunately our militia system is dismantled and so a State’s check against a military tyranny from Washington, DC is no longer maintained.
To summarize the Constitution, the legislature makes war; the president makes peace. The Senate ratifies the terms of the peace.
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