We’re at war, again. Another shovel of dirt on the corpse of the Constitution.

Summary:  As we start yet another war, let’s take a moment to mourn the Constitution.  A landmark from the days when we inspired other peoples by means other than our bombs.

Contents

1. A reminder of what we once were (of course you don’t care)
2. A nostalgic note about a political regime long gone
3. Who said that?
4. For More Information

A reminder of what we once were (of course you don’t care)

The Constitution of the United States — Article One:  The Legislative Branch — Section 8:  Powers of Congress

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

No mention here of the United Nations authority to order US soldiers into action.  No mention of the President’s ability to attack other nations in order to protect their people, or his personal authority to decide what governments meet our standards — and send the military to destroy those that do not.   In this (as in assassination, wiretapping, and so many other things) our leaders no longer even bother with the pretence of following the Constitution.

Listen to the Tea Party.  Listen to the libertarians and other advocates of limited and small government.  Listen to the Conservatives, opponents of a living Constitution — defenders of the Founders’ vision.  Listen to the silence.  It’s the silence of the grave.  RIP, US Constitution.

We didn’t notice your long slow death.  We don’t miss you now.  But we will.

A nostalgic note about a political regime long gone

Besides exercising the constitutional war powers that no longer interest it, our Congress ought to demand answers to several questions on policy toward Libya, such as:

1. What is our goal in Libya? What happens if the allies disagree on goals?
2. Are we planning to enforce a no-fly zone, bomb military units that are attacking civilian targets, or provide the rebels with close air support and strategic bombing? Will we send in special operators to help target air strikes?
3. If we manage to stop, by force or its threat, Qaddafi’s forces from taking Benghazi and the rest of the rebel stronghold in Libya’s east, are we prepared to indefinitely enforce the de facto partition of Libya?
4. Would we offer air support for a rebel offensive?
5. If Qaddafi consolidates his gains before or despite allied efforts to stop him, should we try to overthrow him? If so, how? What if he doesn’t kill many civilians?
6. If the rebels win and ask for a peacekeeping force while they form a new government, do we provide it?
7. If the rebels attack civilians, do we attack them?

— Excerpt from Libya: War Without Policy“, Benjamin H. Friedman, CATO, 18 March 2011

Who said that?

Q: In what circumstances would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress?

A: The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action. As for the specific question about bombing suspected nuclear sites, I recently introduced S.J.Res.23, which states in part that “any offensive military action taken by the United States against Iran must be explicitly authorized by Congress.”

Candidate Obama, in response to a questionnaire published in the Boston Globe (“Candidates on executive power: a full spectrum“, 22 December 2007).

About the President’s war powers

We have traveled a long way to get to this point.  Presidents have ignored the Constitution when it comes to making war.  Congress has abdicated its role in making these decisions, preferring to hold show trials after the fact (if it does not end well).  For details of this sad story see the following.

• Letter from the President regarding the commencement of operations in Libya, 21 March 2011
• This may be where we definatively went off the rails:  “The Korean War:  On What Legal Basis Did Truman Act?“, Louis Fisher (Congressional Research Service), American Journal of International Law, January 1995 — It’s a sad story for anyone who loves the Constitution.
• Letter to Senate Majority Leader Trent Lott on War Powers and Kosovo from the ACLU, 30 April 1999 — Esp note the documentation at the end.

For analysis of the Executive’s use of war powers:

• “Instances of Use of United States Armed Forces Abroad, 1798-2010“, Richard F. Grimmett, Congressional Research Service, 10 March 2011
• “Jack Goldsmith on the Constitutionality of the Libya Intervention“, Ilya Somin (Assoc Prof Low, George Mason U), Volokh Conspiracy, 22 March 2011

Posts about recent events in the Middle East

1. Libya’s people need uninvited infidel foreigners to save them!, 1 March 2011
2. “You just have not seen enough people bleed to death”, 8 March 2011
3. About attacking Libya – let’s give this more thought than we did Afghanistan and Iraq, 6 March 2009
4. Our geopolitical experts see the world with the innocent eyes of children (that’s a bad thing), 14 March 2011
5. The Middle East scorecard, 18 March 2011
6. Events in the Middle East expose the nature of US foreign policy. There is yet time to change before we hit the rocks., 20 March 2011

Other posts about the late Constitution of the United States

1. Please read:  Forecast: Death of the American Constitution, 4 July 2006 — Originally a forecast; a few years later it’s an obituary.
2. The Constitution: wonderful, if we can keep it, 15 February 2008
3. Congress shows us how our new government works, 14 April 2008
4. See the last glimmers of the Constitution’s life…, 27 June 2008
5. Remembering what we have lost… thoughts while looking at the embers of the Constitution, 29 June 2008
6. Another step away from our Constitutional system, with applause, 19 September 2008
7. What comes after the Constitution? Can we see the outlines of the “Mark 3″ version?, 10 November 2008
8. “The Constitution that I interpret and apply is not living, but dead.” – Supreme Court Justice Scalia, 9 June 2009
9. More about the tottering structure of the American political regime, 17 August 2009
10. Listen to the crowds cheering Sarah Palin, hear the hammerblows of another nail in the Constitution’s coffin, 8 February 2010
11. Another nail put in the Constitution’s coffin, but we don’t care, 9 February 2010
12. Recommended reading about the Constitution, 17 March 2010
13. The Feds decide who to lock up for life (not just at Guantanamo), another nail in the Constitution’s coffin, 2 June 2010
14. The President’s big stick (domestic): his National Emergency Powers, 12 June 2010
15. Code red! The Constitution is burning., 5 August 2010
16. An Appalling Threat to Civil Liberties and Democracy, 8 August 2010
17. Every day the Constitution dies a little more, 1 September 2010 — About US government assassination programs
18. What do our Constitution-loving conservatives say about our government’s assassination programs?, 2 September 2010
19. Cutting down the tree of liberty, 9 September 2010 — Government secrets trump fair trials.
20. Which political party will best protect our liberties?, 10 September 2010
21. The guilty ones responsible for the loss of our liberties, 11 September 2010
22. War is the health of the state, 18 September 2010
23. A great philosopher and statesman comments on the Bush-Obama tweaks to the Constitution, 10 October 2010
24. This week’s news: many stories showing that the Constitution is dead, 8 December 2010