By Bruce Fein
November 27, 2016
The Washington Times
Contrary to conventional wisdom (which is invariably wrong), the United States Constitution is the nation’s strategy for greatness. The strategy entails invincible self-defense; peace, commerce, and honest friendship with all nations; and, entangling alliances with none.
At present, that strategy means returning our troops stationed abroad back to the United States to defend we the people, not foreigners whose loyalties lie elsewhere. It means repositioning all of our air and naval forces to defend we the people, not foreigners whose loyalties lie elsewhere. It means devoting our cyber warfare capabilities to defending we the people, not foreigners whose loyalties lie elsewhere. And it means renouncing all of our treaty commitments to defend other nations militarily without congressional declarations of war.
Our national strategy of invincible self-defense; peace, commerce, and honest friendship with all nations; and, entangling alliances with none, finds expression not in the Constitution’s text, but in its dispersal of power among the three branches.
Institutions possess distinct personalities that transcend the personalities of the occupants of the offices. These institutional personalities determine policies within a very narrow range.
The Constitution as our national strategy follows inexorably from its assignment of the war power exclusively to Congress, i.e., its prohibition of presidential wars. Article I, section 8, clause 11 empowers only the legislative branch to declare war.
The Constitution’s profound authors knew that Congress would be a “talking shop.” It would be highly risk-averse, like a dog that retreats to its kennel when danger appears. Members of Congress would have little to gain but much to lose politically by initiating war. No obelisk or monument had ever been constructed to honor a legislator’s vote for war. Legislative powers diminished during belligerency. And if the war ended in defeat or a truce because of the President’s ineptitude as commander in chief or otherwise, Members would not be able to evade political responsibility.
The Constitution’s drafters knew to a virtual certainty that Congress would only declare war in response to actual or perceived aggression against the United States, i.e., only in self-defense. Indeed, during the drafting, debating, and ratification of the Constitution, no participant conceived that the war power would ever be exercised for preemptive, preventive, humanitarian, economic, democratizing or other non-self-defense objectives.
History has vindicated the Constitution’s conception of the congressional personality. In 227 years, Congress has declared war in only five conflicts, and only in response to actual or perceived aggression against the United States: the War of 1812; the Mexican-American War; the Spanish-American War; World War I; and, World War II. The Declare War Clause required Congress to decide whether to cross the Rubicon from peace to war. Congress could not escape its responsibility by delegating the decision to the President. The June 18, 1812 Declaration of War is exemplary. It provided:
“Be it enacted by the Senate and House of Representatives of the United States in Congress assembled, That war be and the same is hereby 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….”
The Constitution’s national strategy of wars only in self-defense and declared by Congress is vastly superior to all the alternatives that have ever been conceived or attempted. War diverts invaluable genius and resources from production to killing, which is an economic deadweight. War crushes liberty and silences the law. War breeds secrecy, which fathers fraud, waste, abuse, and crime. War subordinates civilian supremacy to tenuous claims of military necessity. War makes killings legal that would customarily be punished as first-degree murder. War makes children orphans and wives widows. War causes courageous soldiers to be slaughtered and maimed. It causes taxes to be raised or money to be borrowed to finance the war machine.