A Common Lawyer Comments
Winters Inn of Court
Ron Paul has always affirmed his commitment never to trespass the bounds of our Constitution. Accordingly, he insists that presidents not send Americans into foreign countries to fight without Congress’ duly passed declaration of war. Why? Because our Constitution requires Congress’ declaration of war before presidents take Americans from their families and send them to other countries to kill and (inevitably) to be killed. Never forget, war is a direct danger to those sent to fight. And even though the American—unlike the Muslim suicide bomber and Japanese kamikaze—fights to kill and not be killed, when Americans wage war some will die.
Our Constitution, says the Supreme Court, is couched in our common law. Its requirement that Congress declare war before waging war is a matter of common-law due process: our Country ought never send Americans into another country to kill or be killed without having fulfilled the process due to us all by putting Congress to the moderate inconvenience of debate & vote.
Bottom line: war without Congress’s declaration is not our Country’s war, but the war of whoever happens to be living in the White House at the time; but worse, without Congress’s declaration of war the lives our soldiers and sailors become a president’s pawns & a ticket to his ego’s lawless adventure.
Of note, Ron Paul also insists that if Congress does declare war, all concerned must do all within their power to send our armed forces wherever necessary, trained and equipped to strike hard and fast to destroy the enemy Congress has declared war upon. Simply put, once Congress has duly declared war, Americans must not let up until that declared enemy is defeated. The quicker the victory, the more lives spared.
Is it asking too much that presidents and congressman keep the grisly business of war within the bounds of our Constitution? Each of them did promise, by solemn oath, to uphold it. Is it asking too much that before Americans are taken from their families and sent into foreign lands to take the lives of others—and some, inevitably, to lose theirs’—that such dreadful power be kept under the law of the land: our precious due process, the process our Constitution says is due you and me, requiring Congress to declare war?
Do not misunderstand; the power to wage war is not the danger; power does not corrupt presidents. Corruption—that mortal weakness common to all Adam’s race—is already the very fabric of each president’s soul upon moving into the White House. But make no mistake, some presidents, lacking necessary discipline, are weaker than others. And when the unassailable military might of the United States is placed into such hands, the temptation it brings magnifies the likelihood for abuse—lawless (unconstitutional) war with the untold hardships that always follow in its dirty wake.
But, one may ask, what does a president do in an emergency, such as surprise invasion from without or spontaneous insurrection from within? Rest assured, our Constitution provides clear guidance in the common law for such cases—standing orders for all concerned, including presidents. Lord willing, this will be the subject of another blog.
To sum up, our Constitution says Congress alone holds the un-delegable right to say whether a president will ship Americans to foreign lands to kill and risk being killed. Only Congress, says our Constitution, has the power to say yes to war or to say no.
Lastly, consider the comments of Joseph Plumb “J.P.” Martin—a mere sixteen-year old when British Hessians baptized him into the fire of battle. The next year, J.P. ambled over the ground where Americans and Hessians, locked in a death struggle, had been slain. Writing of those Hessians sixty years later J.P. warns us: be careful that you do not allow yourself to be brought to such an abject servile condition:
I, with some of my comrades who were in the battle of the White Plains in the year ‘76, one day took a ramble on the ground where we were then engaged with the British and took a survey of the place. We saw a number of the graves of those who had fell in that battle; some of the bodies had been so slightly buried that the dogs or hogs, or both, had dug them out of the ground. Their skulls and other bones, and hair were scattered about the place. Here were Hessian skulls as thick as a bombshell; —poor fellows! They were left unburied in a foreign land; —they had, perhaps, as near and dear friends to lament their sad destiny as the Americans who laid buried near them.
But they should have kept at home, we should then never have gone after them to kill them in their own country. But, the reader will say, they were forced to come and be killed here; forced by their rulers who have absolute power of life and death over their subjects. Well then reader, bless a kind Providence that has made such a distinction between your condition and theirs. And be careful too that you do not allow yourself to be brought to such an abject servile condition. (bold and italic in orig.)
J.P.’s words, we should then never have gone after them to kill them in their own country should sting a little. But his further point is to distinguish the Hessians from the Americans: the Hessians’ prince, by his single unfettered will, shipped them to America to kill on command; by contrast, our Constitution forbids that any U.S. president ship Americans to foreign countries to fight unless Congress tells him to do so by formal order called a Declaration of War.
For good reason, the decision to wage war belongs to Congress alone. But above all, our common-law government is one of law and not of any man or men, such as, for instance, some wrong-headed president—or worse yet, other men for whom such a wrong-headed president is a secret yes-man.
Copyright © 2012 Brent Allan Winters
For Brent’s further comments concerning the Constituion’s War Powers’ and Militia Clauses’ relationship to the Second Amendment see pages 43, 48, 81–87, 144, 152 of Brent’s Book—
United States Constitution & Declaration of Independence: A Common Lawyer Comments—Clause by Clause (2010).
Available in book form & audio CD at
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