In my post on Congress’ power to declare a limited war, I noted that the leading scholarship in support of Congress’ power is by Saikrishna Prakash (here). I should also have added as well the outstanding two-part article “The Commander in Chief at the Lowest Ebb” by David Barron and Martin Lederman in the Harvard Law…Details
Some people – including the former law instructor who now serves as President of the United States – believe that it is impossible to reconstruct the Constitution’s original meaning. As this book demonstrates, that view is substantially incorrect.
The Original Constitution fills a void that has existed for a long time—the need for a clear, complete, easy-to-read guide to what our Constitution really means.
Using evidence overlooked by nearly all other writers and assessing it with scrupulous objectivity, The Original Constitution tells you the truth about the Constitution. The Constitution the Founders gave us, that is, instead of the distorted version of it foisted upon us today.
In The Original Constitution you will learn:Details
Sometimes I enjoy re-reading old blog posts from the early days of the Tenth Amendment Center, which in our first year or so was little more than a quickly-growing blog.
The principles seem quite similar to what they are today, as evidenced by this Constitution-day post from 09-17-07:
Today is a day that’s not celebrated like many other “holidays” in American society. You see, September 17th is Constitution Day – a day that appears to be nearly forgotten in America.
Sadly, over the years, people have stopped paying attention to the Constitution. It’s rare to hear people talking about the rules for government when discussing current events. And, it’s even more rare to hear politicians refusing to pass legislation because it’s not authorized by the Constitution.
Today is the government-mandated day to celebrate the document which is the set of rules for the federal government. A bit of an odd situation, but the day exists, nonetheless. Here at the Tenth Amendment Center, we consider every day a “Constitution Day.” And every day is a day which provides countless reasons to resist…Details
Those of us who understand and value our unalienable, constitutionally-protected right to keep and bear arms often use this argument regarding gun control:
Gun “laws” don’t work because criminals don’t obey the law!
This seems like a logical argument since criminals, by the very definition of the word, ignore and break the law. Synonyms for criminal include lawbreaker, crook, offender and wrongdoer among others.
Of course we’re not saying that we don’t need laws, we’re just saying that additional laws won’t stop criminals – who by definition are already breaking the law – from breaking the law.
Many people agree with this line of thinking, but apparently only when it comes to gun control.
Example: Several members of the Ohio General Assembly – including some of the more liberty-minded members – support calling for an Article V convention for the purpose of passing an amendment to the Constitution. Ohio HJR 3 calls for an amendment which “shall provide that an increase in the federal debt requires approval from a majority of the legislatures of the separate states”.Details
Does Congress have constitutional power to authorize limited strikes on Syria? In his otherwise outstanding post on Congress’ war powers, Michael Stokes Paulsen suggests that the answer might be no:
… [I]t is fruitless, and equally unconstitutional, for Congress to authorize the use of force but attempt to micro-manage how it is to be used (as some versions of the proposed resolution now being debated would do). As noted, the conduct of war, once authorized, lies in the hands of the president. Congress has the power to declare war, and the president does not. But the president has the power to conduct war as Commander in Chief—and Congress does not.
I’m not sure which versions of the resolution are meant here, but the principal proposal — (a) limiting the use of force to degrading Syria’s chemical weapons capacity, and (b) limiting the use of force to air power — seems well within Congress’ power to declare a limited war.
The leading article on this subject is by Saikrishna Prakash in the Texas Law Review: The Separation and Overlap of Military Powers. From the abstract:
Absent from war-powers scholarship is an account of when war and military powers separate and when they overlap. Making arguments sounding in text, structure, and history, this Article supplies such a theory. Numerous English statutes and practices help identify the meaning of the Constitution’s war and military powers. Additional insights come from the Revolutionary War and the half-dozen or so wars fought in the three decades after 1789. In those early years, Congress micromanaged military and wartime operations. Presidents (and their advisors) acquiesced to these congressional assertions of power, expressing rather narrow understandings of presidential power over war and military matters. Using early history as a guide, this Article argues that the Constitution grants Congress complete control over all war and military matters. Some authorities, such as the powers to declare war and establish a system of military justice, rest exclusively with Congress. Military authorities not granted exclusively to Congress vest concurrently with the President and Congress, meaning that either can exercise such powers. In this area of overlap, where congressional statutes conflict with executive orders, the former always trump the latter. Tempering Congress’s ability to micromanage military operations are significant institutional and constitutional constraints that typically make it impossible for Congress to move military assets on a far-off battlefield. In sum, the Constitution creates a powerful Commander in Chief who may direct military operations in a host of ways but who nonetheless lacks any exclusive military powers and is thus subject to congressional direction in all war and military matters.
While I would not go quite as far as Professor Prakash (see here), I agree that Congress has substantial ability to set the goals and limits of the use of force in connection with an authorization of war.Details
In noting the principal amicus briefs in Bond v. United States, I overlooked this one on behalf of Chemical Weapons Convention Negotiators and Experts. As described in this news release from Indiana University: In the brief, the arms control experts support the U.S. government’s position that, properly interpreted, the treaty requires states parties, including the United States, to apply its prohibitions on…Details
the WPR is profoundly unconstitutional because it cedes Congress’ constitutional war-making power to the president. The WPR was an ill-conceived political compromise effectuated by a Watergate-weakened president, congressional hawks who approved of Nixon’s unilateral invasion of Cambodia and sober congressional heads more faithful to the separation of powers.Details
I was contacted by a reporter from LifeSiteNews.com asking for comment regarding a news item in Texas and Mississippi. According to the Associated Press, the Texas and Mississippi National Guards “won’t give same-sex benefits at some locations,” citing state gay-marriage bans.
Setting aside my own personal view that government-issued marriage license are an affront to the peace and liberty of people from all backgrounds (and were often used in the 19th century as an attempt to prevent interracial marriage), there certainly are some important constitutional issues here.
Constitutionally-speaking, the National Guard of each state is not like a county – a simple political subdivision of the Pentagon. The Constitutional articles of note are:
Article I, Section 8, Clause 15:
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
and Clause 16:Details