Funny thing, strict constructionalists on the Supreme Court refuse to take one part of the constitution literally: Article II, section 2:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
This statement is the only authority granted to the president in war and the making of war. If a person is to take this literally, doesn’t it sound more like the president suits up and literally goes to war? Doesn’t it sound more like he gets to devise the strategy of the advancing armies than total determination of the plans for war?
In Article I, section 8, we have the role Congress is to play in war and war-making:
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as my be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
This is it. This is what our Constitution has to say about War Powers.
In shear volume, Congress looks like it plays a bigger role, doesn’t it? They define and punish, they declare War and raise and support Armies, they provide and maintain a Navy, and they compose the terms of regulation for the forces.
Does a picture start to emerge from all of this? Isn’t it obvious that the president doesn’t have extensive War Powers, nor does he get to decide the scope and terms of war?
What I thought of as I was reading this was of a prince or some such isolated and uninformed person of privilege who knocks on the big wooden door and is immediately granted an audience with the powerful ruling king. So he runs the length of a great hall and out of breath kneels before the sovereign power and asks: “My Lord, I have received word that there is a powerful army building in
Another aspect that is dangerous for us is the current talk of distribution of power within the mainstream media. They have no doubt bought the suggestion that Commander in Chief really means king or Overlord of War. In this model, Bush is able to demand that he be authorized to do whatever the hell he wants outside our borders for an indefinite duration. Not only does that go against the principles of the Constitution, but it goes against the principles of a democratic republic. What is the purpose of such a Congress, then?
They also like to suggest that the only power that Congress possess is “the power of the purse” [this, of course is extracanonical and appears nowhere in the Constitution]. In this paradigm that they have forced on us is that the president runs and says whatever he wants to about the military and the only say Congress has is through budgets and funding. Why are they taking that so literally, but not “Commander in Chief”? If the role of Congress is to make war, fund the war, and maintain the faculties of war, then what power should the president really have? The role of Commander in Chief is actually a role of military strategist (which explains our historic love for generals and war heroes).
According to the above line of reasoning (and the language of the Constitution itself), I can come to no conclusion but that the president reserves no right to go to war or maintain a war. Congress leads us into war and the president leads us into battle. In
This can all be resolved rather quickly: Congress need only remove the initial war authorization. This would properly rebuke the president in place of impeachment and would certainly bring the power of military action back under the deliberating and more democratic institution of the Legislative Branch. Now if only the war-hawking media would allow this to happen…