Monday, April 11, 2016

Constitution Series Part 9: Article I, Section 8, Clauses 11 through 16

As a reminder, you can read the Constitution yourself at the National Archives website. When I quote the Constitution in this series, I'm quoting from there.

Anyway, today we're going to explore Congress's powers regarding war and the military!


Section 8
[The Congress shall have Power] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
The President can not declare war. Though the President is Commander in Chief of the military, they are not at liberty to declare war on another country.

That said, what does a declaration of war even mean? Does the President require Congressional approval for any military action? What if the United States is attacked? Does the President need Congressional approval to retaliate?

The last time the United States declared war was in June 1942 against Bulgaria, Hungary, and Romania, six months after declaring war against Japan and Germany in December 1941. Despite the fact that we haven't officially declared war since World War II, we've been militarily active ever since. The Korean War, the War in Vietnam, and numerous conflicts in the Middle East; we've been fighting pretty regularly in the 70 years since the last time we declared war. So, what's going on?

You might think that the Presidents since then have simply gotten sneaky. After all, Vietnam wasn't a war, it was a conflict, and other military actions have been justified by similar verbal tap-dancing. That doesn't seem to be the case, though. After all, England was involved in many "undeclared wars" through the years before the American Revolution, so the idea wasn't new at the time of the Constitutional Convention.

A declaration of war is a statement regarding our official diplomatic standing with another country. That's all. It may sound useless, but it's not when you're dealing with nations. Simply put, "at war" is not a state you want your country to be in. It ravages your economy by using up your resources and scaring away trade. Moreover, your country does not want to be at war with the United States. If it is, your government becomes a target for the most advanced military in the world.

Nowadays, most of our conflicts are with ideas, though, not with countries. In the Korean War, we weren't fighting Korea, we were fighting Communism. Same in Vietnam. In the Middle East today, we're not fighting Afghanistan or Libya, we're fighting Terrorism. There isn't a country to declare war on even if we wanted to. There are organizations within those countries, but not countries as a whole. The established governments of those countries do not support terrorism (at least, not publicly), so there's no justification for war.

Given that, the Congressional power to declare war seems fairly pointless. And perhaps it is. Even if you look at the wars we've actually declared, most of them were declared after the military was already engaged in hostilities. Confusingly, Congress as also at times authorized the use of military force without also declaring war, though Presidents continue to plan and execute military operations without any Congressional approval whatsoever.

As it is, this is one of the most confusing and contentious "powers" of Congress. Their authority here is unclear, though I personally feel as though Congress has been denied an important right over the years. Defending our nation from attack is one thing, but extended military action abroad should, I think, be subject to Congressional authorization. Congress is, after all, supposed to represent the people, and the will of the people should be taken into account before we commit to an extended military occupation somewhere.

The next part of this clause, regarding "Letters of Marque and Reprisal," barely sounds like English. Which is partially true: apparently "marque" in this context is just French for "reprisal" in the sense it's meant here, so it's confusingly redundant. "Reprisal" here means government seizure of foreign property or persons in retaliation for an attack on our country. In other words, it means Congress is supposed to have authority over counter-attacks.

Those who believe in Congressional authority over war generally see this part of the clause as working with the "declarations of war" part to encompass authority on all military action, great or small. I tend to agree, though history seems to favor presidential authority on the matter. As it is, Congress has not actually issued a letter of marque and reprisal since 1812, so direct reference to their authority in this case is lacking.

Finally, regarding "captures," Congress is allowed to determine what happens with land and property confiscated during war and reprisal. However, Congress has generally deferred to the President on these matters, which doesn't really help their case in exerting authority on the other parts of this clause.
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
Congress determines the military budget, as they determine the budget of most everything else.

The more interesting part of this clause is the limitation of two years for military appropriations. After all, history shows that a large standing army does not bode well for a country. Rome's military machine grew wild and eventually led to the collapse of the empire after the military was used to take control of that empire. Fears of military takeover and dictatorship were well-founded in history, and early debates regarding this power weighed the benefits of a standing army against the dangers of an army that could be used to subjugate the people.

In the end, having a standing army was seen as the best move for the sake of security. However, the standing army was supposed to be a relatively small force for emergencies, defense, and small conflicts. In times of war, soldiers would be drafted from the populace to swell the ranks as needed. And that worked up until the end of World War II.

After WWII, the Cold War necessitated a much larger standing army, which would be at the ready in case of attack. This heightened tension has maintained our massive army for over 70 years, even though the Cold War is over. On the plus side, the large standing army means we no longer have to worry about the draft, as our massive army is plenty big enough to handle any wars that might come our way.

The two-year term for appropriations is still in effect, but it's kind of pointless. The military budget is appropriated annually.
To provide and maintain a Navy;
Notice that there's no two-year appropriations limit on the navy. After all, a navy isn't really equipped to occupy a country. Or, at least it wasn't at the time of the Constitutional Convention. At the time, a navy was only suited for naval battles, moving troops around, protecting trade vessels, and fighting off pirates.

Altogether, despite technological advances over the years, the U.S. Navy is still basically governed by the same rules now as it was when it was founded.
To make Rules for the Government and Regulation of the land and naval Forces;
Not only can Congress raise and fund armies and navies, they also determine the rules and regulations under which they operate.

They ended up not actually writing these rules themselves, though. Instead, they adopted rules written earlier by John Adams regarding military procedures for both the army and the navy. These are largely the same rules that govern military procedure today, though they've been revised to be less harsh over the years. Fewer summary executions, for instance.
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
In this case, the "Militia" is in reference to local law enforcement. State-run militias evolved into the police force we're familiar with today. In short, this power grants Congress the authority to order local police forces to deal with national threats.

However, this power was delegated to the President in 1795 and has never been rescinded. So, really, the President can order local law enforcement to deal with national threats in their area, though in theory Congress can remove the President's authority in this at any time. There simply has never been a reason to do so.

Interestingly, the idea of these "militias" was that they would be comprised of locals who were invested in defending their land and their people in times of invasions far moreso than a standing army would be. After all, they were the people.

Now there seems to be a separation between the people and the "militia." The founders were afraid of armies subjugating the people and expected the militias to defend them, but these days in some communities it seems like the police force are the ones subjugating the people, and the army is barely even on this continent to influence things one way or the other. When, I wonder, did the police stop representing the people? I think they mostly work for the common good, but their relationship to the populace seems more adversarial than it should be...
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may 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;
Originally, these militias were to be organized and armed by the government. After all, the militias were expected to be the last, best line of defense for the nation. Even citizens who weren't organized were allowed to still keep their weapons (as per the Second Amendment) so that all able-bodied men could assist in the defense of the country.

This notion was completely shattered by the War of 1812. Militias were worthless, as were armed citizens. The British and Canadian forces decimated our militia, our capital was burned, and we learned a valuable lesson about the value of a real army and the uselessness of the Second Amendment. A bunch of citizens with guns are no match for an army of trained soldiers. (Militias were likewise pretty useless in the Revolutionary War, by the way.)

In the end, this clause led to the creation and maintenance of the National Guard, which is sort of a standing, well-trained militia that supplements the army. It is apparently different from the National Guard of the United States, which is a reserve military group that also supplements the army. This adds to the confusion of how the previous clause and this clause both refer to militias yet end up referring to two different groups. I'm not sure that was the intention, but that's how it ended up it seems.

Continue to Part 10: Article I, Section 8, Clauses 17 and 18

No comments:

Post a Comment