The founders intentionally separated the power to declare and wage war. James Madison, for example, considered this the wisest part of the Constitution.

In response, it’s extremely common for us to hear something like this recent comment:

While it’s just dandy to quote those 18th men, the fact is they didn’t have to contend with the 21st century reality that just one Russian Borey-class submarine can carry a dozen sub-launched ballistic missiles (SLBMs), each one of which is tipped with ten MIRVed nuclear warheads (each yielding over 100kT). Moreover, each missile can rain down nuclear armageddon on ten major population centers along the East Coast within six minutes of being launched. So does anyone really think some committee on Capitol Hill should be vested with the sole power to make decisions of war and peace when an act of war is committed against out homeland in the nuclear age? I think not

If reading that made your head hurt, you’re not alone. But neither is the view of the commenter. In short, they take the view that it’s dangerous to follow the constitution on war and peace because, as they tell us over and over and over – if someone attacks, there’s no time to defend the country AND wait for Congress to declare war.

Setting aside the fact that they’re actually telling us that the constitution should be ignored in an emergency situation – which sets the foundation for people in power to do the same on other issues, this is not just a view in the realm of internet comments. It’s actually one of the most common objections that state legislators have to passing the Defend the Guard Act. In short, they tell us, “We don’t have time to wait for a declaration, passing this will not only cost lives, but encourage enemies to attack.”

Paraphrased, that was a pretty well-received opposition line in a House floor debate over the Montana Defend the Guard Act this year.

But, like so many other constitutional provisions, the vast majority have had absolutely no education on the Founders’ design.

To them, the power to declare war actually consisted of the power to change the state of things from peace to war. The executive then has the power to wage that war.

Thomas Jefferson described it like this:

“Congress alone is constitutionally invested with the power of changing our condition from peace to war.”

If there’s an attack, neither congress nor the president is making the decision about peace or war – the attackers did.

They already declared war by their actions. So the president can respond without first getting approval from congress – and without violating the Constitution.

Michael Boldin

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