To: Leaning Right
Bolton is correct.
Get over it!
Get
an education.
The Power to Declare War
Article I, section 8, clause 11, of the Constitution grants to Congress the power "to declare War."
As Hamilton noted in 1793, this was an "exception" to the general grant of "executive power" to the President, and thus was intended to be narrowly construed [15] .
One of the common errors in discussing the scope of this exception to the President's general "executive Power"a power reinforced by the specific recognition in article II, section 2, that "[t]he President shall be Commander in Chief of the Army and Navy of the United States" [16]
-has been to focus on the meaning of the term "War" under the Constitution.
Congress is not granted the power of "War,"but rather the more limited power "to declare War,"which was a term of art from the Law of Nations with a clearly understood meaning in 1787.
The Framers were remarkably well-read men.
The publicists with whom they were familiar in this area-writers like Grotius, Vattel, and Burlamaqui-all argued that a formal declaration of war was unnecessary for defensive hostilities [17].
It was only when nations were at peace and one wished to initiate an offensive (or what we would today call an aggressive) war that it was necessary to declare war.
And this distinction between the President's right to use force defensively, but requiring legislative sanction to initiate an offensive war,
was evident in the debate at the Philadelphia Convention over Madison's motion to give Congress not the power "to make War," but the more narrow power "to declare War." [18]
In 1928 [19] and again in 1945 [20] , the world community by treaty outlawed the aggressive use of force among nations,
and in the process made the declaration of war clause a constitutional anachronism.
It is no coincidence that no sovereign state has clearly issued a declaration of war in more than half a century [21].
----------
15. "The General doctrine of our Constitution, then, is, that the EXECUTIVE POWER of the nation is vested in the President;
subject only to the exceptions and qu[a]lifications which are expressed in the instrument. . . .
It deserves to be remarked, that as the participation of the Senate in the making of treaties, and the power of the Legislature to declare war, are exceptions out of the general "executive power" vested in the President,
they are to be construed strictly, and ought to be extended no further than is essential to their execution."Pacificus I, in 15 PAPERS OF ALEXANDER HAMILTON, 39, 42 (Harold C. Syrett ed., 1969)(italics in original).
16. U.S. CONST. Art. II, Sec. 2, cl. 1.
17. See Robert F. Turner, War and the Forgotten Executive Power Clause of the Constitution, 34 VA. J. INT'L L. 903 (1994).
To properly understand the term "defensive" in this context, it is important to understand that declarations of war were governed by jus ad bellum(the law concerning the initiation of coercion)
rather than jus in bello(the law governing the conduct of military operations, widely described as the law of armed conflict today).
Thus, the offensive-defensive distinction relevant to a declaration of war related entirely to which State launched the attack and which State was attacked,
and not to whether the victim of an aggressive attack elected to defend itself by blocking punches or launching a major counterattack.
18. See, e.g., 4 WRITINGS OF JAMES MADISON 227-28.
Madison told his colleagues that the change from "make" to "declare" war would leave the President "the power to repel sudden attacks,"
and Sherman argued that "[t]he Executive shd. Be able to repel and not to commence war." Id. at 227.
19. Treaty on the Renunciation of War As An Instrument of National Policy (Kellogg-Briand), Aug. 27, 1928, 46 Stat. 2343, TIAS 796, 94 LNTS 57 (entered into force July 24, 1929).
20. Article 2(4) of the United Nations Charter provides:"All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state,
or in any other manner inconsistent with the Purposes of the United Nations."
21. The power of Congress to declare War remains a part of the U.S. Constitution,
and were the President to decide to violate international law and initiate an aggressive war
the Congress would be entitled to pass judgment on the decision
and either branch could exercise a "veto" by refusing to approve a declaration of war.
76 posted on
08/30/2013 11:07:08 PM PDT by
Yosemitest
(It's Simple ! Fight, ... or Die !)
To: Yosemitest
Sorry, but I’m not swayed by an enormous cut-and-paste.
79 posted on
08/30/2013 11:20:59 PM PDT by
Leaning Right
(Why am I holding this lantern? I am looking for the next Reagan.)
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