Guest Essayist: Andrew Langer


As discussed throughout the essays of Constituting America’s 90-Day Studies of the Constitution, central to the nature of our republic is the division and diffusion of power through the various branches and levels of our government.  The power of one branch of the federal government is checked by the power of another branch, and the authority to engage those powers is diffused, so that the rights of Americans are protected against abuse.

In the recent essay on Federalism and the United States Senate, I began with a quote from New York v. United States, a 1992 Supreme Court decision which eloquently lays out the reasoning behind our federalist system.  In that essay, I talked about the diffusion of sovereign power as protecting individual rights. That case also says,

“[T]he Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.”[1]

This is especially true when it comes to the power to wage war.  Next to the power to use lethal force against its own citizens (in the most-extreme instances), the power to inflict harm against other nations is the most-serious power we, as a people, have ceded to our government.

And the founders were incredibly suspicious of the power to wage war being abused by a centralized government.  They had seen firsthand the arbitrary and cavalier ways in which monarchs, and not just the British monarchy, were using war, and had used war throughout the world’s history, as a way of building empire, and glory, and power.

This is NOT what they wanted these United States to be—and so they made it difficult for the nation to wage war.  The imbued, under Article I of the Constitution, the power to declare war with the Congress.  But the management of that war, the management of the armed forces of the United States, was vested in the President as the “Commander-in-Chief” under Article II.

Remember, as well, that as a check against abuse of military authority, the bulk of our armed forces were to be comprised of militia[2], locally-organized and locally-commanded, and that we really were to have no standing army (a posture that changed as the country grew and matured).

But the founders wanted the decision to go to war to be deliberate (and deliberated), so they vested that decision in Congress, and as a result, Congress has only “declared” war eleven times in our nation’s history, with six of those instances being related to various hostilities in and around World War II.

However, following World War II, and with the advent of the Cold War (and the associated “proxy wars” that ensued)[3], the divided powers between Congress and the Executive Branch became muddied.  The President was granted considerable leeway by Congress to engage U.S. troops in armed conflicts without having it necessary for Congress to actually “declare” war.

The Korean War was, officially, a “police action”—though historically it is termed a war, U.S. troops were directly engaged in a conflict between two powers, and thousands of U.S. lives were lost.  Similarly, the Vietnam War utilized thousands of soldiers, sailors, airmen and marines, but Congress never declared war against North Vietnam.

But Congress attempted to re-assert its authority because of growing public wariness with how the Vietnam War was being conducted.  In 1973, the “War Powers Resolution” was passed (though not signed by President Richard Nixon, thus making fall short of an “act”), which is supposed to work as a check against the President’s conducting of foreign military affairs.  It requires the President to inform Congress within 48 hours of the committing of U.S. military forces to action, places time restraints on how long they can remain there (60 days of engagement with 30 days for a measured withdrawal from conflict).

Past this, Congress is supposed to pass an AUMF – an “Authorization for the Use of Military Force”, or, beyond an AUMF, an actual declaration of war.

Because of the expense to the United States from engagement in hostilities abroad—both in terms of manpower and materiel, there has been renewed interest in both houses of Congress and in not just the two major political parties, but other parties as well, for legislation to reassert the separation of powers when it comes to warmaking.  Those pushing for this reassertion are saying that the concerns of the founders, the reasons the founders divided these powers, are being made manifest in how that division is being ignored today—American military members dying in conflicts that are not wars, though important American participation in these conflicts might be.

The point is, the use of that force was supposed to be deliberate—and the division of power was supposed to make those waging war more directly accountable.  The Constitution protects us from our own best intentions.  And those intentions had better be deliberated when we’re talking about waging war.

Andrew Langer is President of the Institute for Liberty and the Host of the Andrew Langer Show on WBAL NewsRadio 1090 in Baltimore.

[1] New York v. United States, 488 US 1041 (1992)

[2] There is much-confusion as to the definition of “militia” as referenced in the Second Amendment.  Keeping in mind that the entirety of the Bill of Rights exist as a further constraint against government power, and that the Second Amendment represents only one justification for the right to keep and bear arms (absent the 2nd Amendment, the 9th makes it clear that the right to self-defense is retained, despite not being enumerated in the Bill of Rights), “militia” is currently actually defined in the United States Code—divided into “organized” militia (the National Guard) and the “unorganized” militia—essentially all other adult citizens of the United States. 10 USC, Section 246.

[3] A “proxy” war is a conflict engaged in by two powers, who are essentially acting as proxies for other, stronger powers that do not wish to engage in direct warfare with one another.  Throughout the Cold War, the United States and the Soviet Union supported parties in a number of armed conflicts, many of which could be considered “proxy” wars.

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