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The Constitution Of The United States: A Familiar Exposition.
textbook ^ | 1840 | Joseph Story

Posted on 01/07/2002 2:12:49 PM PST by KDD

The next power of Congress is, "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." That the power to declare war should belong exclusively to the National Government would hardly seem matter of controversy. If it belonged to the States severally, it would be in the power of any one of them, at any time, to involve the whole Union in hostilities with a foreign country, not only against their interests, but against their judgement. Their very existence might thus be jeoparded without their consent, and their liberties sacrificed to private resentment, or popular prejudice.

The power cannot, therefore, be safely deposited, except in the General Government; and, if in the General Government, it ought to belong to Congress, where all the States and all the people of the States are represented; and where a majority of both Houses must concur, to authorize the declaration.

War, indeed, is, in its mildest form, so dreadful a calamity; it destroys so many lives, wastes so much property, and introduces so much moral desolation; that nothing but the strongest state of necessity can justify, or excuse it. In a republican government, it should never be resorted to, except as a last expedient to vindicate its rights; for military power and military ambition have but too often fatally triumphed over the liberties of the people.

186. The power to declare war, if vested in the General Government, might have been vested in the President, or in the Senate, or in both, or in the House of Representatives alone. In monarchies, the power is ordinarily vested in the Executive. But certainly, in a republic, the chief magistrate ought not to be clothed with a power so summary, and, at the same time, so full of dangers to the public interest and the public safety. It would be to commit the liberties, as well as the rights of the people, to the ambition, or resentment, or caprice, or rashness of a single mind.

If the power were confided to the Senate, either alone, or in connection with the Executive, it might be more safe in its exercise, and the less liable to abuse. Still, however in such a case, the people, who were to bear the burdens, and meet the sacrifice and sufferings of such a calamity, would have no direct voice in the matter. Yet the taxes and the loans, which would be required to carry on the war, must voted by their Representatives, or there would be an utter impossibility of urging it with success.

If the Senate should be favor of war, and the House of Representatives against it, an immediate conflict would arise between them, and in the distraction of the public councils, nothing but disaster or ruin vould follow the nation. On the contrary, if the House of Repsentatives were called upon by the Constitution to join in the Declaration of war, harmony in the public councils might fairly be presumed in carrying on all its operations; for it would be a war sustained by the authority of the voice of the people, as well as of the States.

This reasoning was decisive in confiding power the to Congress.

TOPICS: Constitution/Conservatism; Editorial; Free Republic
KEYWORDS: constitutionlist
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Joseph Story was a child of the American Revolution, born three years after the Declaration of Independence, who became not only a professor of law at Harvard, but a Supreme Court justice-the youngest ever appointed - joining that giant of the early court, Chief Justice John Marshall. As a witness to and participant of the early years of consitutional interpretation, Joseph Story opens a brilliant window into the thinking of the Founders. He reminds us that a strict construction of - and adherence to - the Constitution was what the Founders intended.
1 posted on 01/07/2002 2:12:50 PM PST by KDD
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Great Post
2 posted on 01/07/2002 2:18:45 PM PST by One More Time
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To: One More Time
3 posted on 01/07/2002 2:27:09 PM PST by knarf
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To: Arthur McGowan
4 posted on 01/07/2002 2:31:23 PM PST by KDD
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"§ 1169. The power, to declare war may be exercised by congress, not only by authorizing general hostilities, in which case the general laws of war apply to our situation; or by partial hostilities, in which case the laws of war, so far as they actually apply to our situation, are to be observed. 12 The former course was resorted to in our war with Great Britain in 1812, in which congress enacted, "that war be, and hereby is declared to exist, between the United Kingdom of Great Britain and Ireland and the dependencies thereof, and the United States of America and their territories." 13 The latter course was pursued in the qualified war of 1798 with France, which was-regulated by divers acts of congress, and of course was confined to the limits prescribed by those acts. 14"

Justice Story has no problem with Congress authorizing "partial hostitlities", as it has for President Bush.

His whole "Commentaries" is online at HERE

It is a great and accessible text (though some say he's a little pro-Judicial Branch :-).

5 posted on 01/07/2002 2:37:23 PM PST by mrsmith
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So do you agree with Justice Story that the Congress doesn't have to declare war, but may authorize it "by divers acts of congress"?

Whatever your beliefs, I hope his words have some weight with you.

6 posted on 01/07/2002 2:53:52 PM PST by mrsmith
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To: mrsmith
Can you reference Congress' declaration in support of President Bushs actions. I know there is a statement of support but I can't access it.

Authorization of funds by Congress to conduct military operations fall under, and create the auspices of a "defacto declared war" by Congress?

Thanks for your input..."§ 1169. The power, to declare war may be exercised by congress, not only by authorizing general hostilities, in which case the general laws of war apply to our situation; or by partial hostilities, in which case the laws of war, so far as they actually apply to our situation, are to be observed.

This would appear to resolve the conflict.

7 posted on 01/07/2002 3:05:36 PM PST by KDD
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Let me see if I can find it.
For comparison I do have the act for the war with France that Justice Story references:
An Act Further to Protect the Commerce of the United States July 9, 1798.
8 posted on 01/07/2002 3:25:05 PM PST by mrsmith
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Helpful post. A little more legal history on declarations of war:
Declaration of War

.... An early controversy revolved about the issue of the President's powers and the necessity of congressional action when hostilities are initiated against us rather than the Nation instituting armed conflict. The Bey of Tripoli, in the course of attempting to extort payment for not molesting United States shipping, declared war upon the United States, and a debate began whether Congress had to enact a formal declaration of war to create a legal status of war. President Jefferson sent a squadron of frigates to the Mediterranean to protect our ships but limited its mission to defense in the narrowest sense of the term. Attacked by a Tripolitan cruiser, one of the frigates subdued it, disarmed it, and, pursuant to instructions, released it. Jefferson in a message to Congress announced his actions as in compliance with constitutional limitations on his authority in the absence of a declaration of war. Hamilton espoused a different interpretation, contending that the Constitution vested in Congress the power to initiate war but that when another nation made war upon the United States we were already in a state of war and no declaration by Congress was needed. Congress thereafter enacted a statute authorizing the President to instruct the commanders of armed vessels of the United States to seize all vessels and goods of the Bey of Tripoli ''and also to cause to be done all such other acts of precaution or hostility as the state of war will justify . . .'' But no formal declaration of war was passed, Congress apparently accepting Hamilton's view.

Sixty years later, the Supreme Court sustained the blockade of the Southern ports instituted by Lincoln in April 1861 at a time when Congress was not in session. Congress had subsequently ratified Lincoln's action, so that it was unnecessary for the Court to consider the constitutional basis of the President's action in the absence of congressional authorization, but the Court nonetheless approved, five-to-four, the blockade order as an exercise of Presidential power alone, on the ground that a state of war was a fact. ''The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.'' The minority challenged this doctrine on the ground that while the President could unquestionably adopt such measures as the laws permitted for the enforcement of order against insurgency, Congress alone could stamp an insurrection with the character of war and thereby authorize the legal consequences ensuing from a state of war.

The view of the majority was proclaimed by a unanimous Court a few years later when it became necessary to ascertain the exact dates on which the war began and ended. The Court, the Chief Justice said, must ''refer to some public act of the political departments of the government to fix the dates; and, for obvious reasons, those of the executive department, which may be, and, in fact, was, at the commencement of hostilities, obliged to act during the recess of Congress, must be taken. The proclamation of intended blockade by the President may therefore be assumed as marking the first of these dates, and the proclamation that the war had closed, as marking the second."

These cases settled the issue whether a state of war could exist without formal declaration by Congress. When hostile action is taken against the Nation, or against its citizens or commerce, the appropriate response by order of the President may be resort to force. But the issue so much a source of controversy in the era of the Cold War and so divisive politically in the context of United States involvement in the Vietnamese War has been whether the President is empowered to commit troops abroad to further national interests in the absence of a declaration of war or specific congressional authorization short of such a declaration. The Supreme Court studiously refused to consider the issue in any of the forms in which it was presented, and the lower courts gen erally refused, on ''political question'' grounds, to adjudicate the matter. In the absence of judicial elucidation, the Congress and the President have been required to accommodate themselves in the controversy to accept from each other less than each has been willing to accept but more than either has been willing to grant.

This is excerpted from an informative article on THE WAR POWER at You can read Hamilton's critique of Jefferson's wierdly Clintonian act of giving the Tripolitans back the ship they had just attacked us with here at The Founders' Constitution

It should be clear that our present situation, when the nation has been attacked, is very different from the various Cold War conflicts and Clinton interventions from Korea to Kosovo. Those were situations where the President initiated war without a declaration. This is a situation where the President responded to an attack on the United States, seeking authorization from Congress along the way.

The people who call this an un-Constitutional war seem to avoid basic questions. Like, what is a Declaration of War, anyway? What does a Declaration of War do? As far as I can tell, historically a D of W is an act by which one nation initiates hostilities against another. The Constitution does not say that US troops may never be committed to battle without a Declaration of War. It says that only Congress has the right to initiate hostilities against another nation. But we are now at war with enemies, some of them nations, who initiated hostilities against us long ago.

9 posted on 01/07/2002 3:35:47 PM PST by Southern Federalist
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To: Southern Federalist; Luis Gonzalez; William Wallace; Victoria Delsoul; Miss Marple
<.Thought you might be interested in my post above, though I admit it's way long.
10 posted on 01/07/2002 3:39:22 PM PST by Southern Federalist
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To: mrsmith
It appears that I have been laboring under a misunderstanding of the term "declaration" as it is constitutionally applied. You have put that mis-apprehension to rest...thank you.

Upon further reading, this section...§ 1181.

But the dangers from abroad are not alone those, which are to be guarded against in the structure of the national government. Cases may occur, and indeed are contemplated by the constitution itself to occur, in which military force may be indispensable to enforce the laws, or to suppress domestic insurrections.

Where the resistance is confined to a few insurgents, the suppression may be ordinarily, and safely confided to the militia. But where it is extensive, and especially if it should pervade one, or more states, it may become important and even necessary to employ regular troops, as at once the most effective, and the most economical force.

43 Without the power to employ such a force in time of peace for domestic purposes, it is plain, that the government might be in danger of being overthrown by the combinations of a single faction.

In light of the interpretation put forward by Judge Story...what do you think of the potential of Executive abuse of the "Patriot Act"? Does the Executive have exclusive power to determine who fits under the term "terrorist" and therefore which people or groups constitute a threat to the U.S.?

Or is this power only reserved for incidents like the L.A. riots? And if that is true, could you point me to any statutory limitation.

11 posted on 01/07/2002 3:56:06 PM PST by KDD
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To: Southern Federalist
Thank you for the illuminating addition.

This puts to bed the issue of whether or not this war is constitutional.
Thank you.

I still have "issues" concerning the new U.S.A. Patriot Act.

But those are mostly 4th admendment issues that are not revelant to this thread.
When I do address those concerns I hope you will find time to comment.

12 posted on 01/07/2002 4:13:43 PM PST by KDD
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To: Southern Federalist
§ 1894. The next amendment is: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrants shall issue, but. upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things. to be seized."

§ 1895. This provision seems indispensable to the full enjoyment of the rights of personal security, personal liberty, and private property. It is little more. than the affirmance of a great constitutional doctrine of the common law. And its introduction into the amendments was doubtless occasioned by the strong sensibility excited, both in England and America, upon the subject of general warrants almost upon the eve of the American Revolution. Although special warrants upon complaints under oath, stating the crime, and the party by name, against whom the accusation is made, are the only legal warrants, upon which an arrest can be made according to the law of England; yet a practice had obtained in the secretaries' office ever since the restoration, (grounded on some clauses in the acts for regulating the press,) of issuing general warrants to take up, without naming any persons in particular, the authors, printers, and publishers of such obscene, or seditious libels, as were particularly specified in the warrant. When these acts expired, in 1694, the same practice was continued in every reign, and under every administration, except the four last years of Queen Anne's reign, down to the year 1763. The general warrants, so issued, in general terms authorized the officers to apprehend all persons suspected, without naming, or describing any person in special. In the year 1763, the legality of these general warrants was brought before the King's Bench for solemn decision; and they were adjudged to be illegal, and void for uncertainty.

Money v. Leach, 3 Burr, 1743; 4 Black. Comm. 291, 292, and note ibid. See also 15 Hansard's Pad. Hist. 1398 to 1418, (1764); Bell v. Clapp, 10 John. R. 263; Sailly v. Smith, 11 John. R. 500; 1 Tucker's Black. Comm. App. 301; Rawle on Const. ch. 10, p. 127. -- It was on account of a supposed repugnance to this article, that a vehement opposition was made to the alien act of 1798, which authorized the president to order all such aliens, as he should judge dangerous to the peace and safety of the United States, or have reasonable grounds to suspect of any treasonable, or secret machinations against the government to depart out of the United States; and in case of disobedience, punished the refusal with imprisonment. That law having long since passed away, it is not my design to enter upon the grounds, upon which its constitutionality was asserted or denied. But the learned reader will find ample information on the subject in the report of a committee of congress, on the petitions for the repeal of the alien and sedition laws, 25th of February, 1799; the report and resolutions of the Virginia legislature of 7th of January, 1800; Judge Addison's charges to the grand jury in the Appendix to his reports; and Tucker's Black. Comm. App. 301 to 304; Id. 306. See also Vol. III. § 1288, 1289, and note.

A warrant, and the complaint, on which the same is founded, to be legal, must not only state the name of the party, but also the time, and place, and nature of the offence with reasonable certainty.

The loss of these freedoms are no small matter.

13 posted on 01/07/2002 4:56:11 PM PST by KDD
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"§ 1486. ... But if his assuming the actual command depended upon the assent of congress, what was to be done, when an invasion, or insurrection took place during the recess of congress? Besides; the very power of restraint might be so employed, as to cripple the executive department, when filled by a man of extraordinary military genius. The power of the president, too, might well be deemed safe; since he could not, of himself, declare war, raise armies, or call forth the militia, or appropriate money for the purpose; for these powers all belonged to congress.2...
2 3 Elliot's Debates, 103."
He comes mighty close to addresssing the point here but doesn't, unless it be addressed in the debate in the footnote.

But I think the Patriot Act is more of a straight 'public safety- police power' type of law- not particularly relevent to insurrection

The danger of Executive abuse is always present- given any law, or absent any law.

I too, though I seem to always be defending the Patriot Act against Lew Rockwell type crap about it, believe there are fourth amendment violations possible in it which should be corrected, and that it should be more limited in it's scope anyway.
"Sandy" has really impressed me with her posts on that act, though I often think her too hard on it.

14 posted on 01/07/2002 6:02:25 PM PST by mrsmith
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The first insurrection (just for background):

Randolph to GW, 5 Aug. 1794, and Hamilton to GW, 2 Aug. 1794, DLG:GW; Wilson to GW, 4 Aug. 1794, DNA: RG 46, President's Messages. [Associate Justice James ] Wilson was consulted in compliance with Section 2 of "An Act to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions" (1 STAT. 264--65 [ 2 May 1792 ]). This section provided "that whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, the same being notified to the President of the United States, by an associate justice or the district judge, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed." See also Randolph to GW, 5 Aug. 1794, DLC:GW.

15 posted on 01/07/2002 6:43:19 PM PST by mrsmith
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To: Southern Federalist
No sir, not too long at all.

It became fashionable in FR to mock people who challenged the idea that this was an unconstitutional, undeclared war by saying that"war had been declared on us", thanks for putting the argument in historical, and constitutional perspective.

President Bush declared a state of emergency immediately after the attacs on 9/11, Congress followed by authorizing the use of force. All done as per the letter of the War Powers Act.

16 posted on 01/07/2002 7:49:11 PM PST by Luis Gonzalez
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As aways with one of your threads, some first class information to absorb.
17 posted on 01/07/2002 8:21:44 PM PST by KC Burke
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To: Luis Gonzalez
President Bush declared a state of emergency immediately after the attacks on 9/11, Congress followed by authorizing the use of force. All done as per the letter of the War Powers Act.

Although my intent was not to establish the constitutionality of President Bushes actions, it appears that mr.smith and Southern Federalist have done so to my satisfaction. So codification of what should be emergency measures into law via the Patriot Act seems redundant and unnecessary given that the President is endowed with the power to implement the measures in the Act under the WPA.

Such power would then be limited to the length of the conflict. As it stands, many of the provisions in the Act will be with us long after we defeat the current threat. Freedoms surrendered are usually not returned once the actions that proscribed them pass into history. Freedoms that were returned to Citizens after WWII were never codified into a law that had to be repealed or face challenges from the judiciary after the conflict. I don't know Luis, but it looks to me like a huge power grab by the DOJ that can be used against all Americans for any activity that the Feds deem to be in their interests to contain. Privacy and private property rights are bedrock principles of conservatism. It is incumbent on conservatives to question actions and acts that appear to threaten these principals.

18 posted on 01/08/2002 5:15:29 AM PST by KDD
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To: KC Burke
Thank you. I learn much here. And mr.smith is always happy to disabuse me of incorrect conclusions. No ones conclusions are always right and I have trumpeted the "unconstitutional war" theme myself here a couple of times. The evidence posted on this thread has caused me to re-evaluate my position in that regard.
19 posted on 01/08/2002 5:22:34 AM PST by KDD
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The War Powers Resolution:

For me, the saddest part of reading Story's Commentaries, or other pre 17th amendment historical commentaries on the Constitution, is all the mentions of the state appointed Senators serving as a check on the Federal government's powers.

20 posted on 01/08/2002 8:03:39 AM PST by mrsmith
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