Only Congress has the power to declare war according to Article 1, Section 8 of  the Constitution. In our more than 230 years there has been only five declared wars and each we decisively won — the War of 1812, the Mexican-American War¹, the Spanish-American War, World War I, and World War II.

Other military engagements have been authorized by Congress but not through a formal declaration of war. With the exception of both Barbary Wars in the early 1800s, most Congressionally-authorized but non-declared wars (or “conflicts”) took place after the 1950s — the Vietnam Conflict, the Gulf War, Operation Enduring Freedom in Afghanistan, and the Iraq War being prime examples. Additionally, several notable military engagements were never authorized by Congress but were initiated instead by presidential action following United Nations (UN) Security Council Resolutions — the Korean War, the Bosnian War, and peacekeeping operations in Haiti and Liberia. Again, for the record, please note that these UN military actions were never expressly authorized by Congress.

According to a September 25, 2001 Memorandum Opinion for the Deputy Counsel to the President and entitled “The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them,” there have been at least 125 occasions where the President has initiated military intervention “without prior express authorization from Congress” (and that total only counts those occurring before 2001). According to this document, the largest action was the Korean War:

Perhaps the most significant deployment without specific statutory authorization took place at the time of the Korean War, when President Truman, without prior authorization from Congress, deployed United States troops in a war that lasted for over three years and caused over 142,000 American casualties.

Similarly, the Bosnian War did not receive explicit congressional authorization. It was, as the Memorandum Opinion explains, a “unilateral deployment . . . [that] constituted full-scale war. On March 24, 1999, without any prior statutory authorization and in the absence of an attack on the United States, President Clinton ordered hostilities to be initiated against the Republic of Yugoslavia.” Like the Korean War, that military campaign was substantial as is noted within the Memorandum Opinion (which uses the word war):

Bombing attacks against targets in both Kosovo and Serbia ended on June 10, 1999, seventy-nine days after the war began. More than 30,000 United States military personnel participated in the operations; some 800 U.S. aircraft flew more than 20,000 sorties; more than 23,000 bombs and missiles were used.

While several wars received some form of congressional approval, the Korean and Bosnian Wars never received any express congressional authorization. In light of these and similar military interventions, does it really matter whether Congress, the President, or even the UN formally commits our troops and resources to war? Is there a difference between authorizing and declaring war?

To answer this question we must look to the Constitution which states how our nation can be committed to war. Jacob G. Hornberger, founder of The Future of Freedom Foundation, addresses this question in his 2002 article entitled “Declaring and Waging War: The U.S. Constitution.” He writes:

What does our Constitution say about war? Our Founders divided war into two separate powers: Congress was given the power to declare war and the president was given the power to wage war. What that means is that under our system of government, the president cannot legally wage war against another nation in the absence of a declaration of war against that nation from Congress.

A literal reading of the Constitution makes it clear that the Korean and Bosnian Wars amounted to bold, unconstitutional power-grabs by Presidents Truman and Clinton. But what about other wars like the Gulf War and the Iraq War? Didn’t both Presidents Bush received Congressional authorization to wage those wars? Wasn’t gaining that approval far better than the unauthorized actions of Presidents Truman and Clinton? Again, Hornberger offers a constitutional answer. He points out that “the fact that later presidents have violated the declaration-of-war requirement does not operate as a grant of power for other presidents to do the same.”

Specifically addressing the authorization for Operation Enduring Freedom in Afghanistan, Hornberger writes:

What about the congressional resolution that granted President Bush the power to wage war against unnamed nations and organizations that the president determines were linked to the September 11 attacks? Doesn’t that constitute a congressional declaration of war? No, it is instead a congressional grant to the president of Caesar-like powers to wage war, a grant that the Constitution does not authorize Congress to make.

Simply put, there was no declaration of war and so military actions taken by the President were unconstitutional. Hornberger concludes that the consequences of supporting such unconstitutional military campaigns are extremely dangerous for our liberty:

Therefore, when a U.S. president wages what might otherwise be considered a just war, if he has failed to secure a congressional declaration of war, he is waging an illegal war — illegal from the standpoint of our own legal and governmental system. And when the American people support any such war, no matter how just and right they believe it is, they are standing not only against their own principles and heritage, not only against their own system of government and laws, but also against the only barrier standing between them and the tyranny of their own government — the Constitution.

Nine years after Congress gave President George W. Bush an almost blank check to use force against terrorists we are still waging war in Afghanistan. Instead of wrapping things up, it seems that the Bush and now Obama administrations actively expanded the scope of this war into other territories. Now hardly a day passes that we don’t learn of new military actions taking place within Pakistan and other sovereign nations. Why is this war dragging on and expanding?

Could it be that our Founders intended for war to be infrequent because declarations of war are difficult to pass? Could it be they knew that it was foolish to give any President an open-ended “authorization” to simply wage war? Could it be they knew that a formally declared war, as opposed to a vague authorization to use force, would be carefully debated, clearly defined, and then quickly and decisively won?

Contrast our five declared wars with the at least 125 military campaigns initiated by Presidents without prior Congressional authorization. While all five declared wars ended decisively and in most cases quickly, a high percentage of all others have ended poorly at best — with some slogging on to this day. Put another way, most military actions merely authorized by Congress (but not constituting a constitutional declaration of war) have had a dubious outcome.

After 60 years of waging ambiguous and undeclared wars on multiple fronts, Congress is long overdue in reclaiming their rightful authority under the Constitution. Regarding our current war and multiple military incursions, it is time for Congress to revoke all unconstitutional authorizations of force, thoroughly debate each situation, and take a simple up or down vote to declare war. If military action is warranted then Congress should own up to the need and declare war (and the President should then quickly win it). If no declaration of war is merited then our government should cease all military actions within that sovereign nation and bring our troops home. We cannot allow the Constitution to be violated any longer. If we fail to act now and end this unconstitutional abuse then our personal liberty may be the next victim under a President wielding Caesar-like powers.

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¹While not officially declaring war, Congress formally recognized that a state of war existed. However, in 1848 the House of Representatives censured President Polk for “unnecessarily and unconstitutionally” provoking this war with Mexico.

Image credit: jscreationzs

Today’s PonderPicks are for people who want to know more about the founding of the United States of American and our Constitution. They contain free resources that you can use to educate yourself on these vital topics. Please use them and spread the word so others can learn.

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The National Center for Constitutional Studies (NCCS) has made their popular 5000 Year Leap book available for download — download The 5000 Year Leap audio book free now. Read by Earl Taylor, Jr., two formats are available for downloading: Windows Media (individual chapters also available in this format) and Apple iPod.

According to W. Cleon Skousen, author of  The 5000 Year Leap: A Miracle That Changed the World, the Founding Fathers shared 28 essential beliefs that provide for the amazing creation and prosperity of our nation. These 28 beliefs made it possible for our nation to enjoy more progress in 200 years than the world had made in the previous 5,000 — which explains the title’s 5,000 year leap. Skousen devotes one chapter to each of these 28 principles.

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Also available as a free download from the NCCS is their 2-page Constitution at a Glance (.pdf format) document. This document clearly identifies the various Articles and Sections of the Constitution and references the powers granted and forbidden under each. The Amendments, including the Bill of Rights, are neatly summarized also. Print and/or download your free copy today.

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When reading the Constitution, have you ever wondered what “domestic tranquility” means or what “letters of marque and reprisal” are? Well, the NCCS can help you out with their online Constitution of the United States. With a single click this very easy-to-use interactive study tool provides access to dozens of definitions, pronunciation guides, and other details that clearly explain the Constitution.

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The views espoused by the above sources are not necessarily those advocated by PonderPost or held by PonderPost editors. Please share your insights relating to this information below or contact us with your suggestions for future PonderPicks.

Weighing in at just twenty-eight words, the Tenth Amendment to the Constitution of the United States is  a vital part of our Supreme Law of the Land. It reads:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

These twenty-eight words are simple, forceful, and to the point. They are clear and leave no room for confusion or alternate interpretations. Yet, these words are continually ignored by many within our federal government. After more than a century of violating the Tenth Amendment, the bulk of government power no longer resides with the States and the People but is instead squarely in the corner of the federal government. This should not be.

Several writers have provided valuable insights regarding this significant loss of liberty. One such is Dr. Archie Jones of The American Vision. In his article entitled “The Liberty Amendment,” he builds a powerful case for a literal interpretation of the Tenth Amendment and demonstrates the safeguards within it that work to preserve the liberties of the States and the People:

No fundamental provision of the Constitution or the Bill of Rights is more neglected—or thoroughly violated—today than the Tenth Amendment. It is violated in spirit and in practice. Its violation is advocated implicitly and explicitly: in the teaching of American history and government, in legal theory, in what passes for “Constitutional Law,” and in the functioning of everyday American politics and government.

Our Constitution—as the very words of the Tenth Amendment make clear—was intended to be a delegated powers document. The states which formed and ratified the Constitution were free and independent states—nations—which delegated certain authority and powers to the new central or national government created by the Constitution. They delegated—and manifestly intended to delegate—only those powers stated in the Constitution: and no more. They forbade themselves certain other powers which they also stated in Article I, Section 10 of the Constitution.

By clear intention and unmistakable logic the several states entrusted no more authority or powers to the central government which their representatives had created. All other authority and powers which the states had had before they ratified the Constitution they retained to themselves—and intended to retain to themselves.

The Constitution therefore is also a reserved powers document. The powers which the states have neither forbidden to themselves in the Constitution nor delegated to the central government in the Constitution are reserved to the states. These powers are “reserved to the States respectively”: they are reserved to each respective state.

These reserved powers are “reserved to the States respectively, or to the people.” This does not mean that they are reserved to the people of the nation as a whole, for that would mean that they are delegated to the central government—and would make the Tenth Amendment meaningless and ridiculous. The reserved powers are reserved to the people of the respective states. The powers which the government of each state or the people of that state have not delegated to the central government are reserved to the people or government of each state.

The neglected, abused, violated Tenth Amendment is much more than an amendment to our Constitution, much more than the final amendment to the Bill of Rights. The Tenth Amendment is the anchor and guarantee of federalism, a fundamental and essential principle of the Constitution—a principle insisted upon by the states whose representatives framed and ratified the Constitution.

It protects the self-government of the people of each state by protecting the powers which the state has neither assigned to the central government nor forbidden to itself in the Constitution. It thus protects each state’s authority and freedom to govern itself as its people and their representatives see fit (so long as they do not set up a non-republican form of civil government or violate the Constitution’s prohibitions of certain powers to them).

Dr. Jones goes on to point out that the Constitutional system of checks and balances created within the federal government is actually extended across governments to provide extra safeguards for liberty. In short, the federal government is to be checked and balanced by the governments of the States:

The famous system of separation of powers, with accompanying checks and balances between and among the three branches of our central/national government, was intended to protect liberty and justice by preventing the concentration of power, and consequent abuses of power and usurpations of power, in any one branch of the national government. Federalism, Madison tells us, is a system of separation of powers and checks and balances between the central or national government and the state governments. So important is federalism’s separation of powers with accompanying checks and balances between the central government and the state governments that federalism provides us “a double security to liberty.”

Dr. Jones points out that the Tenth Amendment was ratified to permanently create a balanced and limited federal government. He correctly argues that the Tenth Amendment must be followed if the federal government is to be restrained to its Constitutional role:

The Tenth Amendment was intended to make it clear that federalism is to remain basic to our Constitution and constitutional law. No fundamental provision of the Constitution and the Bill of Rights needs more urgently to be restored to its rightful place in our civil government and law.

Restoration of the Tenth Amendment to its rightful place in American political thought, constitutional law, and civil government is a necessary condition of the restoration of justice and freedom in America.

As voters and citizens we must demand that our federal government be restrained and subject to the limitations of the Tenth Amendment. Likewise we must demand that the States and the People retake their rightful place within our federal system. It is wrong to ignore and disobey the Constitution. The amendment process provides a sufficient tool-set for addressing perceived shortcomings; however, before proceeding down that path, one should consider that many of the issues currently handled by the federal government could be addressed more effectively at the state and/or local levels where Constitutional prohibitions against government involvement do not exist.

Additional Information on the Tenth Amendment

Amendment X: The False Truism

Roger Clemens: Pleading the Tenth

On the Tenth Amendment — Federalism

Tenth Amendment Center – provides a wealth of articles and resources

Americans, we are not without power in the fight to safeguard liberty against federal government growth and encroachment. Our Founders distrusted strong centralized government. To allow for needed change and as an additional safeguard against federal abuse, they authorized both the Congress and the States to initiate the process of amending the Constitution. This powerful tool enables the People to lobby their elected representatives and/or their state legislature for a change to the United States Constitution. Collectively, the People and the States are supreme over the federal government.

The procedure for amending the Constitution is specified under Article V of the Constitution. A quick read will identify the only two amendment procedures allowed: The proposed amendment must originate either by (1) a two thirds vote of both chambers of Congress or through (2) the establishment of a “Convention to Propose Amendments” mandated by the Legislatures in two thirds of the States:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress . . . (Article V of the Constitution)

The amendment process does not end here. Proposed amendments must be ratified by the Legislatures of three fourths of all States before they become part of the Constitution. After ratification an Amendment becomes part of the Constitution and is the supreme law of the land.

Because amending the Constitution is a very serious move, the amendment process was made difficult by design. In the more than 230 years of governance under our Constitution, hundreds of amendments have been proposed but only 27 have been ratified. Surprisingly, none of these Amendments were the result of a Convention to Propose Amendments.

The amendment power is real and allows the People and the States to take action and force significant change on the federal government. Thankfully, in their wisdom, the Founders created this powerful tool for we the People.

We can reduce the scope of our federal government. Let us take this authority seriously and use it!

Additional Information

For an informative overview of the Amendment process in general and a more in-depth discussion of the Convention to Propose Amendments power, see Rob Natelson’s article entitled “A Safeguard Against Federal Abuse.”