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American Constitutional Research Service

August 26^th, 2002

The White House Shysters

By John William Kurowski

According to a Washington Post article, http://www.washingtonpost.com/wp-dyn/articles/A61040-2002Aug25.html “ Lawyers for President Bush have concluded he can launch an attack on Iraq without new approval from Congress, in part because they say permission remains in force from the 1991 resolution giving Bush's father authority to wage war in the Persian Gulf, according to administration officials.” see: http://www.uiowa.edu/~c030162/Common/Handouts/War/

PersianGulf.htm

It is quite interesting to immediately note the Presidents’ “Lawyers” do not point to any historical documentation to support their assertion is in harmony with the intent of the Framers and Ratifiers of our Constitution. Instead, they point to a 1991 resolution of Congress which in fact is not a clear declaration of war as required by the Constitution to launch and initiate a war.

The truth is, there is no power granted to the President by the Constitution to command the Sons and Daughters of the American People into harm’s way and launch an attack on a foreign power unless Congress, the voice of the People, has spoken and given its consent to declare war.

It should be pointed out, however, an exception to the required declaration of war by Congress, authorizing the President to act without a declaration of war, is the intent of the Framers for the President to immediately act, to “repel a sudden attack” upon America. As Roger Sherman stated during the framing of the Constitution, “The Executive should be able to repel, and not commence war”.

During the framing of the Constitution, and in regard to the power in question, a proposed power “to make war“, the following discussion took place as recorded in Madison‘s Notes and gives us the intent of those who framed the constitution, which is far different from the uninformed opinions of the White House Shysters. http://www.yale.edu/lawweb/avalon/debates/817.htm

Scroll down to the proposed power…

"To make war"

Mr. PINKNEY opposed the vesting this power in the Legislature. Its proceedings were too slow. It wd. meet but once a year. The Hs. of Reps. would be too numerous for such deliberations. The Senate would be the best depositary, being more acquainted with foreign affairs, and most capable of proper resolutions. If the States are equally represented in Senate, so as to give no advantage to large States, the power will notwithstanding be safe, as the small have their all at stake in such cases as well as the large States. It would be singular for one authority to make war, and another peace.

Mr. BUTLER. The objections agst. the Legislature lie in great degree agst. the Senate. He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it. Mr. MADISON and Mr. GERRY moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks.

Mr. SHARMAN thought it stood very well. The Executive shd. be able to repel and not to commence war. "Make" better than "declare" the latter narrowing the power too much.

Mr. GERRY never expected to hear in a republic a motion to empower the Executive alone to declare war.

Mr. ELSWORTH. there is a material difference between the cases of making war and making peace. It shd. be more easy to get out of war, than into it. War also is a simple and overt declaration. peace attended with intricate & secret negociations.

Mr. MASON was agst. giving the power of war to the Executive, because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred "declare" to "make."

On the motion to insert declare-in place of make, it was agreed to. N. H. no. Mas. abst. Cont. no. Pa. ay. Del. ay. Md.

ay. Va. ay. N. C. ay. S. C. ay. Geo. ay.

As is recorded in the historical record, the Framers intentionally refused a power to the president to declare war and did so because the framers did not believe he could be safely “trusted with it” and wanted to prevent war unless it was supported by the “Nation“, and so, they vested this power, the power to start a war, in Congress…the voice of the People, and not the President as falsely asserted by the White House Shysters.

Perhaps it is time for the President to find some competent “Lawyers” , or, at the very least, lawyers whom are honest in their findings concerning what the constitution means, to which the President has sworn an oath to support and defend.

"On every question of construction [of the Constitution], let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." --Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

[Permission is hereby given to reprint this article if credit to its author and the ACRS appears in such reprint. No copyright is claimed for quotes within the article which are public domain materials.]

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