Terry Jeffrey

Leave aside for a moment whether it was wise for President Obama to order our military to intervene in Libya's civil war, siding with rebels we know little about against a dictator who has sponsored terrorism against us.

A more fundamental question comes first: Did Obama have constitutional authority to do it? President Washington's actions counsel otherwise.

In responding to Indian raiders, Washington repeatedly declined to order offensive -- as opposed to defensive -- military action because Congress had not approved it, as he believed the Constitution required.

In 1792, William Blount, governor of the territory that became Tennessee, wrote to Secretary of War Henry Knox complaining of aggression by Chickamauga Indians.

"The Congress which possesses the powers of declaring war will assemble on the 5th of next Month -- Until their judgments shall be made known it seems essential to confine all your operations to defensive measures," Knox wrote Blount, as recorded in Louis Fisher's excellent book "Presidential War Power."

A month later, as Fisher notes, Knox wrote Blount: "All your letters have been submitted to the President of the United States. Whatever may be his impression relatively to the proper steps to be adopted, he does not conceive himself authorized to direct offensive operations against the Chickamaggas. If such measures are to be pursued they must result from the decisions of Congress who solely are vested with the powers of War."

A year later -- in a letter Fisher also cites -- Washington personally addressed the issue in a letter to South Carolina Gov. William Moultrie. The problem now was what Washington called "the refractory part of the Creek Nation."

"The Constitution," Washington advised Moultrie, "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."

Why was Washington so deferential to Congress in the use of force? Because he had presided over the Constitutional Convention and knew what the Constitution meant.

Washington was the original originalist.

As reflected in Max Farrand's Records of the Federal Convention and noted in Fisher's work, the Framers made clear they were giving Congress, not the president, the authority to initiate hostilities.

On June 1, 1787, James Wilson, whom Washington would later name to the Supreme Court, said, according to James Madison's notes: "He did not consider the Prerogatives of the British Monarch a proper guide in defining the Executive powers. Some of these prerogatives were of a Legislative nature. Among others that of war & peace &c."


Terry Jeffrey

Terence P. Jeffrey is the editor-in-chief of CNSNews

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