TAMPA, August 14, 2012 – Ron Paul insists that the U.S. government shouldn’t go to war without a declaration of war by Congress. His son Rand has also taken this position, as have a few other libertarian-leaning Republican candidates. The U.S. Constitution delegates the declaration of war power to the Congress, but they have not exercised this power since WWII.
Why is this important?
Most people misunderstand the declaration of war power as “permission” to start a war. By that definition, George W. Bush argued that H.J. Res. 114 (October 16, 2002) fulfilled this constitutional requirement regarding the Iraq War. With that resolution, Congress authorized the president to use military force in the war on terror.
The declaration of war power is not the power to start a war. It is the power to declare that a state of war already exists. This can only be true if the nation in question has committed overt acts of war against the United States.
Each time the U.S. Congress has declared war, the resolution has followed the same format.
1. Congress cites the overt acts of war committed by the nation in question against the United States.
2. It recognizes the existence of the war because of those overt acts.
3. It directs the president to utilize the military to end the war.
The process is some what analogous to a criminal trial. The president “makes his case” to Congress that certain actions by a foreign nation amount to acts of war. Congress then deliberates, renders its verdict and passes sentence. The president is directed to execute the sentence.
Here is just one example. When James Polk asked Congress to declare war on Mexico in 1846, he said,
“But now, after reiterated menaces, Mexico has passed the boundary of the United States, has invaded our territory and shed American blood upon the American soil. She has proclaimed that hostilities have commenced, and that the two nations are now at war.
As war exists, and, notwithstanding all our efforts to avoid it, exists by the act of Mexico herself, we are called upon by every consideration of duty and patriotism to vindicate with decision the honor, the rights, and the interests of our country.
In further vindication of our rights and defense of our territory, I invoke the prompt action of Congress to recognize the existence of the war, and to place at the disposition of the Executive the means of prosecuting the war with vigor, and thus hastening the restoration of peace.”
After deliberating, Congress issued the following declaration of war,
“Whereas, by the act of the Republic of Mexico, a state of war exists between that Government and the United States: Be it enacted by the Senate and House of Representatives of the United States of American in Congress assembled, That for the purpose of enabling the government of the United States to prosecute said war to a speedy and successful termination…”
Note the italicized words. The state of war already exists because of the act of the Republic of Mexico.
Every declaration of war in U.S. history follows this pattern. Most people remember FDR’s famous speech in which he rattled off the acts of war committed by Japan. “Last night, Japanese forces attacked Wake Island. Last night, Japanese forces attacked Midway Island, etc.” Roosevelt concludes his speech with,
“I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December seventh, a state of war has existed between the United States and the Japanese Empire.”
Note “has existed.” Congress once again declares that a state of war already exists as a result of overt acts of war committed against the United States.
The framers of the Constitution intended that the president would never initiate planned military action until this process took place. Yes, the president could deploy the military if the British or Spanish were discovered marching through Maryland, a very real possibility at the time.
Otherwise, however, acts of war had to be committed against the United States before the president directed a military response. Only then could a state of war exist. This is consistent with the libertarian principle of non-aggression.
What were the acts of war committed by Iraq against the United States? For that matter, what acts of war did Yugoslavia commit against the United States? Viet Nam? Korea?
The United States hasn’t declared war upon another nation since WWII because there has been no state of war to declare. No nation since then has committed overt acts of war against the U.S. Yet, U.S. troops have been almost continually engaged in military conflict during those 67 years.
The next time a U.S. president seeks to take the United States to war, Americans should ask themselves the following questions:
Why can’t this president obtain a declaration of war from the Congress?
If no state of war exists – if there were no overt acts of war committed by the nation in question against the United States - then who is the aggressor in this conflict?
Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.