Whenever the legitimacy of some U.S. military action comes up, libertarians and leftists generally bring up the issue of a congressional declaration of war, arguing that in the absence of a formal declaration of war, war-fighting is unconstitutional.
(Libertarians at least have standing to make this argument. Leftists do not. When they complain that something goes against a strict interpretation of the Constitution, leftists should be laughed at and dismissed as the unprincipled hypocrites that they are.)
Gabriel Malor, posting at Ace of Spades HQ, tackled declarations of war in three recent installments of his "Law Lessons" series. He looked at the Constitution, U.S. history, 18th-century international law, and case law, and he concluded what I've thought for a long time: Congress doesn't have to use specific "magic words" in order to constitutionally declare a state of war. And in fact, it usually hasn't, beginning with the Barbary Wars, as Malor noted in his first installment:
… Indeed, the U.S. Constitution says that Congress has the power to declare war. It doesn’t say that to exercise that power Congress must perform an arcane ritual of words and actions. There is no constitutional requirement that Congress use the specific words “Declaration of War.” Nor has the use of such language been the usual practice when the U.S. goes to war.
The U.S. has formally declared war only five times. The other 10 or so times a state of war existed between the U.S. and another country or countries, Congress simply authorizes the use of military force. For example, to authorize the First Barbary War, Congress directed President Jefferson “to cause to be done all such other acts of precaution or hostility as the state of war will justify.” …
Malor noted some interesting parallels between the First Barbary War declaration and the 2001 AUMF (authorization to use military force) declaration under which we invaded Afghanistan. Both targeted specific actions and their perpetrators rather than identifying a specific enemy. Furthermore:
Even more noteworthy is the fact that both war authorizations leave it up to the President to determine just which individuals or nations fall into the enabling language. (Think of this the next time you hear a hysterical ninny gulping about how the discretion Congress gave to President Bush is simply unprecedented.)
In the second installment, Malor tackled the 2002 AUMF (Iraq War Resolution) and looked at what little case law exists regarding declarations of war. I was surprised to learn that Attorney General Gonzales claims there's a difference between authorizations to use military force and declarations of war. I wonder how many libertarians and leftists realize that they're perilously close to agreeing with Gonzales on this issue.
In the third installment, Malor expressed some further thoughts about informal versus formal declarations of war and looked at 18th-century thinking about the nature and purpose of war declarations.
If you're interested in this topic, read all three posts, and don't overlook the comments; there are some thought-provoking ones. For instance:
Federalist #23 reasoned that the CinC could face an infinite variety of threats and as such, "no constitutional shackles can wisely be imposed on the power to which the care of [national defense] is committed." Madison went further noting that ''The sword is in the hands of the British king, the purse in the hands of Parliament; it is so in America, as far as any analogy can exist." I'm thinking Madison may know a thing or two about the Constitution.
It can't be true! Madison wouldn't say that, would he? It must be a Rovian trick to justify the imperial presidency, perpetual war, and the BushCheneyHalliburton police state! Aaaargh!
Hmm, that little Google search confirming the Madison quote that I tossed into the previous paragraph led me to an interesting Heritage Foundation article by John Yoo about the war-making power. Among other things, Yoo argues that the Constitution deliberately and with good reason gives Congress the power to "declare" war, not the power to "engage in" or "levy" war (verbs it uses elsewhere regarding war). There is much more, well-buttressed with specific examples from the Constitution and contemporaneous documents. I'm going to have to read it more carefully and give it some thought.
