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 FindLaw.com. 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.
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.
§ 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.
It's clear that Congress would have declared war after the September 11th attacks, except they didn't know who to declare war against. It's clear too that they have supported the Administration's response to date.