Is Authorization to Use Force Good Enough?

A question I've been pondering lately. Article I, section 8 of the Useless, I mean U.S. Constitution grants Congress the power "To declare War." But does that mean Congress has to say, "We declare war," or can they simply say, "We authorize the President to use force"?

Politically, an actual declaration of war seems a bolder step, so might be desirable as a way of limiting how often we actually go to war. Empirically, this doesn't seem to have happened, although perhaps if we insisted that nothing less than an actual declaration of war was legitimate it might.

But from a constitutional interpretation perspective, does the text demand that kind of interpretation?

Article I, section 8 also authorizes Congress to create tribunals inferior to the Supreme Court. Does that mean legislation creating a new Circuit Court of Appeal, or District Court, must being with the words, "We hereby constitute a Tribunal inferior to the Supreme Court?"

I've been telling students for years that we haven't declared war since WWII, but have been involved in many military conflicts since then anyway, implying that they're all illegitimate. And some clearly are...for example Clinton's insertion of troops into Yugoslavia without even consulting Congress, which really was nothing less than an implicit presidential declaration of war upon the Serbs (not that the action wasn't ethically justified, but that's not my point today). But in the Persian Gulf War, and in the current Iraq war, Congress authorized the use of military force against another country--e.g., they authorized acts of war. And I'm not sure why that's not constitutionally satisfactory.

Granted, Bush declared he had the authority to go to war anyway (he certainly had lots of presidential precedent), but in the end, Congress did give him authorization. And Congress has always declared war only in response to a presidential request for it, I believe.

I don't know. I have to grade 45 student papers on the President's co-optation of the war power, and now I'm not quite so sure what I think about it.

An Open Letter to My Congressman

I am sending the following letter to my Congressman. It is a bit long, just under 600 words, the magic number for trying to get it into my local paper as an opinion piece.

Representative Walberg

I have read the text of House Resolution 888, a resolution to affirm the spiritual and religious history of the United States, and designate the first week in May as “American Religious History Week,” which you have co-sponsored. As a citizen of the United States, and a constituent of yours, I urge you to withdraw your support for this resolution.

This resolution attacks both the truth and the Constitution, with wanton disregard for both.

To begin, the resolution claims that “political scientists have documented that the most frequently-cited source in the political period known as The Founding Era was the Bible.” As a political scientist, I assure you that this claim is wholly false, without the least element of truth. No political scientist has shown this, for the reason that the founding documents of this country contain almost no references to the Bible at all. In the whole of the Declaration of Independence, the Constitution, and the Federalist Papers, there is no mention of the Bible.

The resolution also purposely distorts history. It says “Congress…ordered 20,000 copies of the Bible,” and “Congress pursued a plan to print a Bible.” But notably, those acts were in 1777 and 1782, respectively. As I am sure you know, the Constitution, which created Congress, and which banned religious preferences, was not ratified until 1789. The “Congress” mentioned herein is not the United States Congress of the Constitution, but the Continental Congress. The Continental Congress, of course, could take whatever religious actions it wanted, because it existed before the Constitution was written, but upon ratification that institution wholly ceased to exist. A new government took its place, one that contained a United States Congress that is bound by the constraints of the Constitution.

Further, the resolution suggests that James Madison supported the intertwining of government and religion. This is, again, a falsehood. Madison said, “What influence have ecclesiastical establishments had on Civil Society? In some instances they have been seen to erect a spiritual tyranny on the ruins of Civil authority; in many instances they have been seen upholding the thrones of political tyranny: in no instance have they been the guardians of the liberties of the people.” Referring to his own state of Virginia, he said, “the morality of the priesthood, and the devotion of the people have been manifestly increased by the total separation of the church from the state.” Most assuredly, Madison would not have co-sponsored this resolution.

Most astonishingly, the resolution wholly ignores the text of the Constitution itself.

The Constitution mentions religion in precisely two places. The first place is Article VI of the Constitution, which requires that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

The second place the Constitution mentions religion is in the First Amendment, where it says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These clauses mean that, despite the false claims of this resolution, the Constitution bars Christianity from having a special place in our legal/political system.

It is well known that you are a man of faith, and I would stand beside you and fight for your right to hold, practice, and profess that faith. But I ask you to withdraw your support for a resolution that mocks the U.S. Constitution. Rather, let us stand with Madison, who said that to “employ religion as an engine of Civil policy [is] an unhallowed perversion of the means of salvation.”