by Jacob G. Hornberger
Today’s op-ed in the Washington Post by noted conservative Charles Krauthammer, entitled “Who Takes Us to War?” reveals a lot about conservatives and how differently they view the Constitution compared to us libertarians.
Krauthammer’s article is about the Constitution’s declaration-of-war requirement. As Krauthammer acknowledges, the Constitution delegates the power to declare war to Congress and the power to wage war to the president. That means that the president is precluded from waging war without a declaration of war from Congress.
Krauthammer says that that part of the Constitution is as outmoded as horse and buggies. In support, he cites the many wars that U.S. presidents have waged since World War II without a congressional declaration of war.
Krauthammer proposes that congressional resolutions authorizing the initiation of war be used in place of declarations of war. He says that the matter should be studied and approved by a bipartisan commission. Once the commission finalizes the language, Krauhammer proposes that it be jointly approved by Congress and the president and then read aloud by noted historian David McCullough at the signing ceremony. According to Krauthammer, “That will make it official.”
Not surprisingly, we libertarians take an entirely different approach to the problem. In our view, the Constitution is the highest law of the land. It is higher than any law enacted by Congress or any action taken by the president.
Suppose a law or a presidential act contradicts a provision of the Constitution. Which wins out? Libertarians say: The Constitution does. The law and the act are invalid because the Constitution is a higher law than the congressional law or the presidential act.
Keep in mind, after all, that we the people — that is, our American ancestors — used the Constitution to call the federal government into existence as our servant, not our master, and on the condition that U.S. officials, including the president and the members of Congress, would comply with the terms of the document.
One of those terms deals with the critically important issue of war. The Framers did not want to give the president the power to declare war. They felt that if they did that, presidents would be likely to send the nation into senseless, expensive, deadly, and destructive wars. Moreover, they agreed with what James Madison pointed out — that of all the enemies to the freedom of the American people, war would be the biggest because it would provide the opportunity for the federal government to centralize and expand its powers and to infringe on the rights and freedoms of the American people.
That’s why the Framers chose to impose an enormous obstacle in front of the president. They required him to seek a declaration of war from Congress before he could go to war against another nation-state.
That’s the law. It is the highest law of the land. Until it is changed, it must be obeyed.
Now, that’s not to say that presidents do obey it. We all know that they haven’t since World War II. But contrary to what Krauthammer suggests, that doesn’t make the law outmoded. It simply makes the presidents who have broken the law law-breakers.
Rather than let the lawbreakers off the hook, as Krauthammer suggests, we libertarians say: Enforce the Constitution. Enforce the law, no matter how many times it’s been violated by presidents in the past.
We all know that the Supreme Court isn’t going to enforce this particular provision of the Constitution, no doubt because the justices know that the president wouldn’t comply with its ruling anyway. Thus, the Court has long resorted to such legal nonsense as “no standing” or “lack of justiciability” to avoid exposing its impotence in this regard.
But that doesn’t mean that Congress can’t enforce the law. How? Through impeachment. That’s the part of the Constitution that empowers the House of Representatives to formally charge the president with a high crime or misdemeanor. What better example of a high crime or misdemeanor than the president’s decision to send the nation into war in express violation of the Constitution?
Finally, Krauthammer obviously has little appreciation of the superior position of the Constitution in America’s political structure. If public officials or the citizenry are unhappy with a particular part of the Constitution because they feel it’s outmoded or for any other reason, then the Constitution provides them a way to change it — by amending the Constitution. Admittedly, that’s not an easy process. It requires two-thirds of both houses of Congress to propose an amendment and then ratification by three-fourths of the state legislatures. Alternatively, it entails a constitutional convention called for by two-thirds of the states legislatures.
Nonetheless, again, the law is the law. People like Krauthammer might not like the amendment process set forth in the Constitution due to its difficulty, but that’s the law, the law of the Constitution. And as the highest law of the land, public officials are expected to obey it.
Sadly, Krauthammer would have the president and the Congress ignore not only the declaration-of-war requirement but also the provision in the Constitution for amending the document. He thinks that as long as the president and the Congress agree on a substitute proposal and then have it read aloud by a nationally renowned historian at the signing ceremony, then that’s as good as amending the Constitution in the prescribed manner.
Two questions for Mr. Krauthammer: If federal officials are free to violate one or two provisions of the Constitution, then why aren’t they free to violate all provisions of the Constitution? And if that’s the case, then how is our government different from those Middle East dictatorships that the U.S. government has long supported and partnered with?
Jacob Hornberger is founder and president of the Future of Freedom Foundation.
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