Historic References for the War Funding Debate

With April 2007 as one of the deadliest months for US Forces in Iraq after declaration that “Major combat operations in Iraq have ended.” (White House Press Release, May 1, 2003), perhaps it is time to get some concepts straight. Informed debate calls for some understanding about the roles of the President and Congress. I respectfully suggest that a view offered without understanding of our constitutional process is little more than gibberish.

First, I suggest full reading of The Spirit of Laws (Montesquieu, 1748); James Madison’s Essays No. 47 and 51 and Alexander Hamilton’s Essay No. 69 in The Federalist, and at last The United States Constitution (Debates at Convention are optional.) To address the balance of Executive and Legislative power without historic reference is disingenuous.

As a matter of substantive constitutional law, the President may not wage war without congressional approval. This has been the case since the very outset of our nation. Article 1, Section 8 (11) gives Congress the power to declare war. Mr. Chief Justice Marshall wrote in 1801: “The whole powers of war being, by the Constitution of the United States, vested in Congress. . .” Talbot v. Seeman, 1 Cr. 1 (1801), cited as authority in Holtzman v. Schlesinger, 414 U.S. 1304 (1973). In 1973, Mr. Justice Thurgood Marshall wrote in Talbot “In my judgment, nothing in the 172 years since those words were written alter[s] that fundamental constitutional postulate. . .”

In summary: The Civil War ended by Presidential Proclamation. WW I ended by Joint Declaration of Congress. WW II ended by German Instrument of Surrender, May 7, 1945/July 5, 1945 and The U.S. – Japan Peace Treaty of 1951, ratified by the U.S. Senate. The Korean war “ended” by armistice on July 27, 1953, with no peace treaty. Gerald Ford declared an end to the Vietnam War and termination of all U.S. aid on April 23, 1975. In each event, Congress was intricately involved in the “politics” to terminate the legal state of war. The United States Supreme Court stated that termination of a state of war “is a political act” in Ludecke v. Watkins, 335 U.S. 160 (1948).

Article I, section 9 of our Constitutional vests authority in Congress to provide for “the common defense and general welfare.” It is constitutionally appropriate for Congress determine how to fund a war. The President as Commander-in Chief directs the military while funding comes from Congress. Even George Washington understood this balance during the American Revolution. The conflict is inherent and necessary to preserve our constitutional balance. See Hamilton, Federalist No. 69.

Perhaps when we first seek to understand and respect the constitutional balance established by the Founders, the term “patriotism” undertakes a deeper meaning than sophistic posturing. Perhaps adding some historic and constitutional intelligence will result in a more considered view. Perhaps, not.