#182 Our Unconstitutional Middle-East Wars II

The Founding Fathers, the authors of the Federalist Papers, and the Framers of the Constitution presumed that with its adoption they exempted America from the ever-ongoing warfare that had devastated Europe for centuries. They were pretty much right, for about 150 years (the 1812 thing being an unfortunate Revolutionary leftover). Excellent work, by any standard. It was only in the cause of self-defense that we had to fight the two World Wars, but they violated the letter of the Constitution nary a jot nor tittle. Congress declared; the President warfared--in each case, and in that order.

And the letter of Ur-Constitutional law is strict! More so in matters of war than the chicken-hawks in Congress would want to acknowledge, even as they self-servingly cry out for "original intent" in most matters of Constitutionality. The BlogMan is no Constitutional scholar, but he can point out the words, and it turns out that the wily old Signatories of our founding document (pictured above) had the President pretty much hog-tied when it came to War--by what they said, and didn't say. Whether one calls it "strict construction" or "original intent" or something else, a close reading of the relevant passages makes one wonder how in the world Iraq and Afghanistan could be happening, or that Vietnam ever did.

For there are two other "clauses" touching on War, while never saying it, in that gang of eighteen under Section 8 of Article I--entitled "Congress shall have the power ..."--in addition to #11: "To declare WAR ...." One of the others is this: "To raise and support ARMIES, but no appropriation of MONEY for that use shall be for a longer term than TWO YEARS." For troops and materiel of any kind and anywhere. And for, to repeat, only two years. That's about right. If we count, over the last few decades, only the ludicrous invasion of little Grenada, and the even more risible, "rock-n-roll" occupation of Panama.

And who will be in charge of these two-year wonders? Why, the Commander-in-Chief, of course. Nope. Congress. For further down the list (there's no real logical order to the thing) comes the third clause: "To MAKE RULES for the GOVERNMENT of the LAND AND NAVAL FORCES." In other words, the Legislative branch would seem to be in complete charge of who and what and where they are. The whole megilla. Moreover, when you put all three clauses together, it appears that those venerable Constitutional Conventioneers (my heroes more than ever), meeting in Philadelphia long ago, intended for the Congress, in times of both War and Peace--insofar as any federal Armed Forces were concerned--to be in charge, while not necessarily leading one.

That would fall to the President and Commander-in-Chief, as per the next Article of the Constitution, "Executive Power." Right? Well, so it may be inferred. For this Executive role is far from clearly defined, and far down the list of relative importance--nay, if anything it seems to be little more than a ceremonial appointment. Again, it's not awarded a whole Section, and this time not even a whole Clause. Here's Article II, Section 2, Clause 1, "Command of military; Opinions of cabinet secretaries; Pardons"--

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; he may require the Opinion, in writing, of the principle Officer in each of the executive Departments ... [etc.]; and he shall have power to grant Reprieves and Pardons ... [etc.].

Notice that the post of warrior-chieftain has about equal status with committee chairman and pardoner ... to overstate. But notice too: nothing about the Army and Navy at war, as if the Framers were somehow reserving that term for Congress, for its powers back in Article I. And they didn't envision a standing army, anyway, so the appointment would be a relatively empty one. It would be Congress actually running the military, remember, and furthermore the Framers truly didn't envision any future wars, on their own soil or any others' --a state of mind totally and sadly lost to us today.

Much less would they have predicted some future military-garbed Commander-in Chief-manque' who might parade around a carrier-deck in foreign waters with a "Mission Accomplished" sign behind him. Nor would they have envisioned the President sending the "Militia" of the several states to some overseas desert-outpost, either. The military "Service" they had in mind in that second half-sentence for what is now the National Guard would be to fight the Redcoats if they had the temerity to come back (they did) ... but mainly to put down riots. Which ... if there were a major one today ... would be a major problem, since all the soldiers of our state militias are out-of-state by about 10,000 miles. (more)
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