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The Unreported Casualty
by Douglas Savage
14 April 2003

One of the Founders who impresses neither this President nor Ms. Noonan is James Madison, who wrote in 1793, "The power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature."

We won. Saddam Hussein and his kleptocracy of terror are footnotes in history. And our Constitution is an unreported casualty of Coalition success.

Without benefit of the declaration of war required by our Constitution, our President committed our country to the invasion of another sovereign nation whose wild-eyed troops were not landing upon our open shores. Not even the unconstitutional, federal War Powers Act has been invoked.

Peggy Noonan, poet laureate of the Genteel Right, gives full credit to our President whom she calls "Mr. Backbone." In her Wall Street Journal column of April 7, 2003, Ms. Noonan’s words, as ever, flow like warm honey. But she is incorrect when she writes that "George W. Bush is an American of the big and real America. He believes in it all—in the vision of the founders, in the meaning of freedom, in the founding and enduring ideas of our country." This statement is not a lie. With a face like Truth, Ms. Noonan cannot lie. She is merely guilty of historical illiteracy.

In the United States Constitution, the Founders took care to reserve to Congress the power to declare war under Article I, Section 8, Clause 11. Our President is commander in chief under Article II, Section 2.

One of the Founders who impresses neither this President nor Ms. Noonan is James Madison who wrote in 1793, "The power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature." During that remarkable, sweltering Philadelphia summer of 1787, an original draft of the Constitution gave to Congress the authority "to make war." The Framers amended that draft to read, "to declare war." They understood that making war, once declared, was an executive function. So they made the President "commander in chief"—what Alexander Hamilton in the 69th Federalist Paper termed the "first general" of the armed services.

The Framers knew war. They had just fought one against the 18th Century’s greatest empire: our mother country which now is our closest and bravest allie. There was little doubt among those former Englishmen in their satin pants and powered wigs that the commander in chief did not need a formal, Congressional declaration of war "to repel sudden attacks" on our country. The words were Madison’s. Even to the Framers, no declaration of war would have been required for the Iraq incursion had the World Trade Center been annihilated by Iraqi terrorists instead of Saudi terrorists.

"Congress alone," Thomas Jefferson declared on December 6, 1805, "is constitutionally invested with the power of changing our condition from peace to war."

Peggy Noonan might accuse Mr. Jefferson of speaking too loudly in restaurants. To Ms. Noonan, those who opposed or who still oppose our President single-handedly declaring war on foreign governments are "people who talk loudly in restaurants and leftist mandarins." According to Webster’s Collegiate, 10th, she means that a citizen who raises Constitutional reservations about unilateral Presidential invasions is either a "pedantic official" or "a small spiny orange tree."

The unconstitutional offspring of the unconstitutional War Powers Act of 1973 is the Joint Resolution To Authorize the Use of United States Armed Forces Against Iraq, Public Law 107-243, House Joint Resolution 114. This Joint Resolution authorizes the President to attack Iraq "to enforce all relevant United Nations Security Council resolutions regarding Iraq." The Joint Resolution is not an Article I declaration of war. With Baghdad in Coalition hands, Congress now can bravely share credit with the President, although few members of Congress had any skin in the game as did President Bush and Prime Minister Blair.

Any measure of victory in deposing Saddam Hussein will set dangerous precedent for future Presidents who find foreign governments unpleasant. Our President is a good man to the core. He has earned the title Mr. Backbone. But what if a future President happens to be a petty tyrant like Mr. Nixon, or a 15-year-old boy in a grown man’s paunch like Mr. Clinton? Whether faithful to the Framers’ passion for separation of federal powers or gunslingers, future Presidents will enjoy the Bush Doctrine of Congressional abdication of responsibility.

In February, a handful of Congressmen filed suited in Boston’s U. S. District Court to plead for an Order preventing the Iraq incursion. On February 24, 2003, the District Court refused to decide the question on the merits of Articles I and II issues. The Department of Justice attorney argued in his brief that "irrespective of any Congressional assent, the President has broad powers as Commander in Chief of the Armed Forces under the Constitution that would justify the use of force in Iraq." Assistant Attorney General Robert D. McCallum Jr.’s brief advocated "the President’s unilateral war-making powers—with or without a Congressional declaration of war." (DOJ Memorandum in Support of Defendants’ Motion to Dismiss, pp. 4, 22. Doe v. Bush, Case No. 03-CV-10284-JLT. Emphasis added.) When the federal District Court declined to decide Doe v. Bush on the issue of Constitutional separation of powers, Attorney General John Ashcroft instantly issued the following statement: "The President has broad powers as Commander in Chief of the Armed Forces to determine when to use force to defend the national security of the United States." This undoing of that which the Founders intended may haunt our republic forever.

Writing to Thomas Jefferson on April 2, 1798, James Madison declared, "The Constitution supposes, what the history of all governments demonstrates, that the Executive is the branch of power most interested in war and most prone to it. It has accordingly with studied care invested the question of war in the Legislature."

Peggy Noonan is not likely to be seen any time soon in a restaurant with either Mr. Madison or Mr. Jefferson.

Douglas Savage practiced law in Canton, Ohio, for 24 years. He has published six novels and seven nonfiction books. His nonfiction texts are about the Civil War.

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