- - Wednesday, November 26, 2014

Sen. Rand Paul is seeking to pioneer a path back to the U.S. Constitution in matters of war and peace to save the nation from gratuitous, counterproductive and immensely costly wars.

His draft Declaration of War (and Authorization of Force) Against the Islamic State would reinstate Congress as the decider as intended by the Constitution’s framers in Article I, section 8, clause 11. The senator intends to introduce the legislation when the 114th Congress convenes in January.

Congress has declared war but five times in the nation’s history — most recently in 1941 — despite our initiation of many more wars fought unilaterally by the president. The vast discrepancy is a blot on the Constitution. It prohibits any offensive use of the military without congressional authorization. President Washington explained: “The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.”

President Truman fought a war against North Korea without congressional authorization based on the untruth that the conflict was a “police action.”  Congress unconstitutionally delegated to President Lyndon Johnson the decision to initiate war against North Vietnam, to President George H.W. Bush the decision to initiate war against Iraq over Kuwait, and to President George W. Bush the decision to initiate war against Iraq over imaginary weapons of mass destruction. President Clinton fought illegal wars in Bosnia and Kosovo without congressional authorization, and President Obama did likewise in Libya. At present, Mr. Obama’s wars against the Islamic State of Iraq and Syria (IS) lack any congressional authorization.

Harvard law professor Jack Goldsmith has obtusely asked why Mr. Paul has used the text of the Declare War Clause as opposed to reliance on an implied congressional power to authorize offensive use of the military under the Necessary and Proper Clause in his legislation. President Washington himself interpreted the Declare War Clause as authorizing offensive use of the military, and there was no reason for Mr. Paul to question a legend who also presided over the constitutional convention.

At the convention, the phrase “declare war” in enumerating congressional power was used in contradistinction to “make war,” which was the domain of the executive. The Constitution’s makers assumed that Congress would use “declare war” language to authorize the president to make war.
War makes legal what the law customarily treats as first-degree murder. Mr. Paul used the more jarring phrase “declare war” over more anodyne language authorizing the use of military force to underscore for Congress and the American people the gravity of the decision.

Mr. Paul’s draft confines the authorized use of force to protecting only Americans and American facilties in Syria and Iraq to protect against mission creep, nation building, virtual global warfare against the Islamic State, and war with Syria at a staggering financial cost. That is what happened with Mr. Obama’s latitudinarian interpretations of the 2001 AUMF against al Qaeda and the Taliban, and the 2002 AUMF against Iraq. Mr. Paul’s restricted authorization is necessary to end Mr. Obama’s ongoing illegal war against Syria and to avoid warring in Iraq to support a sectarian Shiite government allied with Shiite Iran and Hezbollah. The government of Syria has not invited the United States to bomb the nation into obliteration in attacking IS — an avowed enemy of Syrian President Assad — and under international law Mr. Obama has invaded Syria’s sovereignty.

Mr. Paul’s draft bill insists that for the first time in 73 years, Congress — not the president acting unilaterally or via limitless delegation — decides on when and under what circumstances U.S. military force will be used abroad. That is what the Constitution’s architects intended to avoid chronic gratuitous wars that bankrupt the country, crush liberty, substitute secrecy for transparency, and aggrandize executive power at the expense of Congress and the federal judiciary. James Madison explained in a letter to Thomas Jefferson: “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 in the Legislature.”

The Constitution strongly disfavors war because it destroys liberty and the rule of law. Thus, Alexis de Tocqueville elaborated in Democracy in America: “All those who seek to destroy the liberties of a democratic nation ought to know that war is the surest and the shortest means to accomplish it.”

Mr. Paul’s draft deserves a 21-gun salute from all who cherish liberty and the Constitution.

For more information on Bruce Fein, visit brucefeinlaw.

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