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
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.
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.
Email Douglas Savage
this article to a friend