Has the US Run Amuck Constitutionally?

Posted: May 13, 2008 12:00 AM
Has the US Run Amuck Constitutionally?

Who decides whether war continues or not in Iraq? Some might answer Gen. David Petraeus. Others might say Congress. But most probably believe the president has oversight of foreign and war policies. After all, he is the commander in chief, correct?

But to whom did our Founders point? They believed the president's duty is to carry out policy, not make it -- something that is the duty of Congress. That is why so many strict constitutionalists have labeled our battles in Iraq as unconstitutional. Many accuse our president of not only going to war without a congressional declaration but also making other unilateral international policies.

On the other hand, pro-Bush allies say executive government officials always have initiated emergency war decisions, such as in Korea and Vietnam. Still others say Iraq is a continuation of the same Middle East war that began in Afghanistan. Some even point to Thomas Jefferson, who confessed and appealed to Congress in 1801 that he was "unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense" when he sent a small regiment of warships to the Mediterranean to ward off attacks by the Barbary States.

I completely honor and support our service members. That is why I've been to Iraq twice, shaking hands and encouraging nearly 40,000 troops. I believe we ought to enforce our borders better, as well as carry out tactical means abroad to deter terrorism at home. And I don't believe our Founders could have imagined the type of global terrorism we wage war against today. But my devout patriotic support and beliefs do not take away from the fact that we must continue to follow constitutional protocol in engaging in and disengaging from any war.

I'm not a constitutional lawyer. I'm not pretending to be. But I've gained a great appreciation for our history and Founders. And they didn't bottle up the choices of war in one person, but many. Those are the checks and balances of power they provided for us. Here are a few of their select thoughts:

-- "The Congress shall have Power … To declare War." (Article I, Section 8 of the U.S. Constitution)

-- "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." (Article II, Section 2 of the U.S. Constitution)

-- "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." (James Wilson, 1787)

-- "The constitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject and authorized such a measure." (George Washington, 1793)

-- "The power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature. … The executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war." (James Madison, 1793)

-- "It is the exclusive province of congress to change a state of peace into a state of war." (William Patterson, 1806)

The Ninth and 10th amendments specify that the federal government may not do anything that isn't spelled out in the Constitution. That is why, after citing 200 pages of constitutional abuses and violations by our government, Judge Andrew P. Napolitano concludes in his book "Constitutional Chaos" that the whole government has run amuck constitutionally, and we must question and be leery of its future motivations and decisions:

"If the Constitution is enforced selectively, according to the contemporary wants and needs of the government, we will continue to see public trials in Detroit and secret trials in Newark; free speech suppressed on inexplicable whims; police targeting the weak and killing the innocent; government lying to its citizens, stealing their property, tricking them into criminal acts, bribing its witnesses against them, making a mockery of legal reasoning, and breaking down the laws in order to enforce them. A government that commits crime is not your friend."

Judge Roy Moore warns that even the U.S. Supreme Court needs to be suspect of constitutional abuses. He elaborated in a past column:

"The Constitution of the United States is our rule of law, not the opinions and ideas of justices of the Supreme Court. Justice Anthony Kennedy just this month told the American Bar Association, 'Our best security, our only security, is in the world of ideas.' Justice Kennedy's words are particularly alarming as he and his fellow justices actually promote world 'ideas' above the United States Constitution to which they are sworn."

We have reached a critical juncture in the life of our country. And we, the people, must hold our governing officials accountable. That is what our Founders expected and admonished. As Patrick Henry said, "The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government -- lest it come to dominate our lives and interests."