FEIN: Reasserting the Constitution

By Bruce Fein | Tuesday, September 9, 2008

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COMMENTARY:

In the 2008 congressional elections, American voters can reverse a reckless constitutional counterrevolution reminiscent of Napoleon Bonaparte's 18th Brumaire that has crowned the president with war powers in flagrant contravention of the Founding Fathers.

Since World War II, Congress has actively or passively endorsed twin counterconstitutional ideas: namely, that the president may initiate war; and, that Congress may delegate its power to authorize war to the president. The Korean War was undertaken by George W. Bush, respectively.

Voters in the 2008 congressional campaigns should support only candidates who pledge to oppose any delegation of the power to declare war; and, to impeach, convict and remove from office any president who starts war without a congressional declaration or equivalent authorization.

A Congress that would aggressively defend its war powers would not only restore the original meaning of the Constitution. It would also rescue the nation from perpetual presidential warfare everywhere that is squandering trillions of dollars while making our people less safe and less free.

Think, for example, of the trillion-dollar ongoing wars in Iraq and Pakistan. They have strained the federal budget. They have created anti-American hatreds and resentments in theaters of war through inescapable killings of innocent civilians in pursuit of genuine enemies.

They have stained the Constitution by justifying a suspension of habeas corpus, military commissions denuded of due process, torture and illegal spying on American citizens. And they have distracted efforts to strengthen the nation's defenses at home.

President Bush and his sycophantic choir maintain the wars are fought to achieve "victory" undaunted by their inability to define the term further than, "I'll know it when I see it," borrowed from the law of obscenity. They bring to mind philosopher George Santayana's observation: "Fanaticism consists of redoubling your effort when you have forgotten your aim."

The Constitution was intended to shipwreck war frolics exemplified by Iraq and Afghanistan. Article I, section 8 entrusts exclusively to Congress the power to "declare war." Every Founding Father agreed that the president must be prevented from deciding between war and peace because of the temptation to champion ill-advised hostilities to aggrandize executive power and to make a mark in the annals of history.

President Theodore Roosevelt is illustrative. He lamented: "If there is not the war, you don't get the great general; if there is not the great occasion, you don't get the great statesman; if Lincoln had lived in times of peace, no one would know his name now."

Future Supreme Court Justice Pennsylvania's ratifying convention, explained: "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."

Father of the Constitution and future secretary of state and President James Madison, echoed Wilson: "In no part of the Constitution is more wisdom to be found, than in the clause which confides the question of war and peace to the legislature, not to the executive department. ... [T]he trust and temptation would be too great for any one man. ..."

United States. [This] would amount to nothing more than the supreme command and direction of the military and naval forces ... 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."

The Founding Fathers disfavored war and distrusted the president for good reason. Madison amplified: "Of all the enemies to public liberty, war is, perhaps, the most to be dreaded because it comprises and develops the germ of every other. ... In war ... the discretionary power of the executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the mind [by manipulating intelligence and public information], are added to those of subduing the force, of the people. ... In war, physical force is to be created; and it is the executive which is to direct it. In war, the public treasuries are to be unlocked; and it is the executive hand which is to dispense them. ... The strongest passions and the most dangerous weaknesses of the human breast, ambition, avarice, vanity, the honorable or venal love of fame, are all in conspiracy against the desire and duty of peace."

The Founding Fathers understood that Congress might stumble in matters of war and peace. No institution is infallible. But unlike the president, congressional judgments would not be warped by a conflict of interest. Moreover, no great power had ever lost its sovereignty or liberties by initiating too few wars.

Were the Founding Fathers alive today, they would support only congressional candidates pledged to ending the virtual 18th Brumaire against the Constitution and accepting responsibility for initiating or desisting from war.

Palgrave Macmillan).

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