Why the “Use of Force” in Iraq Requires a Declaration of War
T.S. Eliot wrote in his immemorial poem The Hollow Men,
This is the way the world ends
This is the way the world ends
This is the way the world ends.
Not with a bang, but a whimper.
So, too, goes the Constitution. The silent and egregious asphyxiation of Article 1, Sec. 8, Cl. 10 is over 50 years old now. The plastic bag placed over this clause in 1949 was intentional. Today, Congress doesn’t even know to whimper as her suitor approaches. What have been the results of this pound of flesh? What have ye wrought? For starters, America has not declared war since WWII and yet, we have been engaged in over 70 military actions.
The purpose of writing this post is to champion the constitutional meaning of a declaration of war and on the other hand, how to know when a formal declaration of war is unnecessary. The modern application has made the distinction not so clear. In the context of Congress’ power to declare war, pragmatism has dictated that initiation of hostilities requires an authorization for use of force. This authorization comes not from Congress but rather from the U.N. Security Council. Indeed, the argument is that Congress “authorized use of force” in Iraq through a “Use of Force” resolution deferring judgment to the Security Council. The argument goes like this: a declaration of war under the Constitution is the same as Congress’ resolution adopting the Security Council’s permission to go to war. Good enough, right? Wrong. This raises troubling questions purposefully ignored by the Republican leadership and others that were probably not contemplated. The dilemma is easily seen with respect to the term “terrorist.”
Purpose for the “Legal” State of War
As the Father of International Law, Hugo Grotius, wrote, the state of war is
not an immediate action, but a state of affairs; so that war is the state of contending parties, considered as such. This definition, by is general extent, comprises wars of every description . . . .For the Latin word, Bellum, WAR, comes from the old word, Duellum, a DUEL, . . . and thereby implied a difference between two persons, in the same since as we term peace . . .
See Hugo Grotius, The Rights of War and Peace18 (1901 Dunne Reprint of Campbell Latin translation). This description of affairs between opposing nations, or in some contexts, between a nation and a group of individuals is a critical legal state. It is critical because the parties to this state of affairs immediately become “enemies.” If we know who the enemy is, terms such as “terrorist” are properly side stepped. After all, who exactly is a terrorist? I challenge you to give it a definition before you go further. Seriously, don’t read any further until you write a definition.
The term “terrorist” is a broad and vague term that doesn’t help adjudicate the laws of war. The word “terrorist” can’t be defined without including George Washington, Patrick Henry, Robert E. Lee, and Thomas Jefferson, et al. In short, you can’t make a verb into a noun and expect it to fulfill a legal role.
Let me illustrate this point. Police seek to terrorize criminals. Criminals terrorize their victims. In fact, most common criminals would be terrorists, right? I, too, terrorize my 4 year old son when he is disobedient and my wife when I decide to give chase. Don’t mistake the argument for being flippant or hyper-technical. There is no mistaking that Al Quaeda intends to terrorize their victims and more. And, I fully realize we are trying to describe a particular individual with the term “terrorist.” But with this term, we are left with an analogy to Justice Potter Stewart who defined pornography as, “I know it when I see it.” The problem of murky legal classification is easily seen when we arrest people around the world as suspected “terrorists” instead of determining whether that individual belongs to a group or nation that has declared war on us. We cannot know what legal rights to ascribe or impute to a particular individual. The laws of Nature do not allow us to simply arrest people on a whim. We must have authority. A declaration of war, on the other hand, identifies a specific enemy. We know who to target and who to destroy. We have authority.
When is a Declaration of War Unnecessary?
There are times when a declaration of war is patently unnecessary. Revisited many times as of late, the example of the Barbary Pirates is instructive. They attacked our ships and demanded tribute. They received that tribute from us until we decided not to pay. The host Islamic countries, Algiers, Tunis, and Tripoli decided on two occasions based on the Koran, to declare war on the United States. Congress then passed laws to go after these host countries under its war power and made rules for the capture of vessels. From there, the Marine Corps hymn was born. A declaration from Congress was, therefore, wholly unnecessary because the legal state of affairs constituting war already existed. Congress needed only to implement rules for the capture of the pirates and the authorization of the military force for that purpose.
Bin Laden made no bones about his intent when he declared war against America in 1996. Ergo, a declaration would be unnecessary because the state of affairs was declared. A declaration of war would in fact be redundant. In contrast, with respect to military action in Iraq, we refer to this engagement as the “Iraq War” despite the fact that no declaration exists. Iraq never attacked us and we have no proof that they were going to or had been. Reviewing the Congress’ use of force resolution here is therefore instructive.
What is a Declaration of War?
Congress shall have the power ‘to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.’ Chief Justice John Marshall removed any doubt what this meant:
The whole powers of war being by the Constitution of the United States vested in Congress, the acts of that body can alone be resorted to as our guides in this inquiry. It is not denied, nor in the course of the argument has it been denied, that Congress may authorize general hostilities, in which case the general laws of war apply to our situation, or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed.
Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28 (1801) (emphasis added). It is the exclusive act of Congress alone to “declare” war or hostilities. Congress is therefore unable to delegate this exclusivity either in whole or in part to the President or the U.N. Security Council. The only possible means to do so is to follow the Amendment Clause in Article V. And, before the President can end hostilities, he must have the advice and consent of the Senate to conclude treaties of peace. We have yet further guidance. Marshall’s protege’ Justice Joseph Story wrote,
[T]he constitution confers on congress the power to declare war. Now the word declare has several senses. It may mean to proclaim, or publish. But no person would imagine, that this was the whole sense, in which the word is used in this connexion. It should be interpreted in the sense, in which the phrase is used among nations, when applied to such a subject matter. A power to declare war is a power to make, and carry on war. It is not a mere power to make known an existing thing, but to give life and effect to the thing itself.
(Emphasis added.) II Story’s Commentaries on the Constitution § 428. Under the Constitution, the word “declare” means much more than simply to publish and to make known the state of affairs. It is a state of affairs that draws after it belligerent rights, it changes the legal status of the Government or the relations of its citizens from that of peace to a state of war, and it brings in a host of duties and obligations of neutral third parties.
Rather than looking to past declarations of war which are clear and name an enemy, turn to the Declaration of Independence. We see a bill of particulars, a set of factual occurrences giving rise to an event. We do not see a series of facts determined by a foreign body of non-citizens giving us the authority to sever the political bands.
Why The Resolution of 2002 is not a Declaration of War
When one looks to the final form of H.J. Res. 114, known as the Authorization for Use of Military Force Against Iraq Resolution of 2002, it is filled with reasons unrelated to “war” debates in Congress. There are 23 or so “Whereas” clauses citing a failure to comply with U.N. Resolutions and broad statements without any facts suggesting the Iraq was going to attack the U.S. in the future. WMDs were the primary reason, WMDs that have never been found. In fact, Sadaam Hussein told his interrogator, an FBI Agent named George Piro, that Sadaam didn’t think the U.S. would invade. And, he said he bluffed possession of WMDs to keep Iran at bay. That Sadaam intended to reconstitute his program is of no great moment. After all, it has been alleged that Russia and Syria were involved in moving the WMDs. Of course, Russia has its own WMDs and to be sure, wanted them back from Iraq. Former head of the KGB, Vladimir Putin, knows well how to use them, especially employing radioactive material to murder dissidents in other countries such as Alexander Litvinenko. Why not pass a “use of force” against these nations too?
Further, when one looks at the Resolution of 2002, we see factual violations relating solely to the U.N. and Security Council Resolutions—an unelected body. We see determinations by an unelected body on violations of its own resolutions. We also see a half-hearted, bald allegation that Al Quaeda who is known to have attacked the U.S. on 9/11 was also in Iraq. (This Al Quaeda in Iraq” allegation is unsupported by any facts in the declaration. According to FBI Interrogator Piro, Sadaam hated Al Quaeda because they were disruptive to his power.) So what does the resolution do exactly? By relying on a factual basis of “violations” of U.N. decrees, Congress knowingly allows itself to dodge constitutional duties to debate and declare war. In effect, what Congress has done is to substitute its judgment for this other body known as the U.N. And, the President is therefore authorized to determine what, where, when, and against whom to go to war. Even if that means being at war for 100, 1000 years—ad infinitum.
Turning to the text of the resolution, Section 3 (a) of the “Use of Force Resolution Authorization” Congress delegates its war power to the President and allows him and the Security Council to substitute the judgment of 535 elected congressman. Specifically, the President is empowered to:
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.
What continuing threat? When one looks to the “Whereas” clauses, the only possible factual threat “continuing” is Iraq’s past conduct in the First Gulf War [i.e., use of force action] and its “violating its obligations under the 1991 cease-fire and other United Nations Security Council resolutions . . . .” Facts were not enumerated in the text. There was no fact indicating a threat to the United States contained in the Resolution. The Resolution of 2002 makes the United States the U.N. enforcer.
On October 3, 2002, Rep. Ron Paul made a motion to declare war on Iraq during discussion on H.J. Res. 114. Then Chairman Henry Hyde (now deceased) rejected Rep. Paul’s motion:
There are things in the Constitution that have been overtaken by events, by time. Declaration of war is one of them. There are things no longer relevant to a modern society. Why declare war if you don’t have to? We are saying to the President, use your judgment. So, to demand that we declare war is to strengthen something to death. You have got a hammerlock on this situation, and it is not called for. Inappropriate, anachronistic, it isn’t done anymore.
There are those who claim the resolution is the same thing as a declaration of war. If a formal Declaration of War is the same thing as a “Use of Force Resolution,” then why would Rep. Hyde make this comment? Why wouldn’t Hyde simply tell Rep. Paul, “Ron, get over it; it’s the same thing.” If it’s the same thing, then why not declare war? The simple answer is that Hyde knew Congress must avoid declaring war or a state of hostilities because of Article 39 of the U.N. Charter. This article is now the repository of declarations: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression . . . .”
But this isn’t all nor the crux of the matter. Hyde’s initial statement that the President was to use his judgment is most troubling. First, like Hyde and the rest of those who voted for it, the President deferred judgment on use of force to the Security Council. Deferring judgment isn’t the same thing as declaring a thing to exist, here a state of affairs. There was and is no need to declare war against Al Quaeda because this state of affairs already existed. Not so with Iraq.
What is it that the 2002 Resolution purported to make known? That the Security Council declared the state of hostility? That the Security Council gave “life and effect” to the use of force? What threat to “National Security” is the President defending us against? The Court in Boumediene v. Bush had the opportunity to clear this matter up but it chose not to.
Boumediene v. Bush
The flaw in both majority and dissenting opinions in Boumediene v. Bush is apparent. The majority presume a legal state of war with Iraq while the dissent juxtapose this state onto radical Islamic jihaadists. We are now embroiled in a religious crusade and a war that was never intended to be a religious war. This leads to further problems. Even Scalia’s dissent attempts to correct the Resolution of 2002 by reciting incident after incident where the United States was attacked by terrorists at large. As Scalia once said, he is not a textualist. If he were, he would have written that the Resolution of 2002 is defective because it fails to indicate that Congress believes the United States is in a state of hostility or partial state of war. He would have no trouble writing that the government has no personal jurisdiction over the detainees because no “enemy” has been established by “declaring” who that enemy is. Detaining “terrorists” is far more problematic than detaining the enemy. We know the enemy when war is declared because a declaration tells us who we are going after. Right now, the “enemy” is not simply Al Quaeda but any radical, transatlantic, fundamentalist jihadist Islamo-facist group in their own country. What does that mean exactly? What is the definition of a “terrorist”? How do we determine these extreme answers?
CONCLUSION
Raising the Constitution and its requirement to declare war is seen as archaic by those who find it problematic to follow it. In support, it is argued that because we’ve got it wrong for 60 years, there is no need to acknowledge the right path. Consider this analogy: Because we’ve had slaves for 60 years, outlawing slavery is now archaic. Absurd? It makes no sense unless it is acceptable to disregard the oath to preserve the Constitution. Since when did we arbitrarily find it right and pure to pick and choose parts of the Constitution that we should enforce? Words mean something. If not, the oath itself is meaningless. Worse, the Republic is meaningless.
When one purposefully ignores the oath and treats it with little imperative, as Rep. Hyde knowingly did, one makes the law political, subject to the arbitrary whims of elections. The will of the People, the source of authority to govern embodied in the Constitution, is simply ignored. While the Iraq war required a declaration, the war against Al Quaeda did not. I leave you with Doug Bandow’s nice summation:
But the U.S. Constitution, to which the president swears allegiance, refers not to the U.N. but rather to the American Congress. Article 1, Sec. 8 (11) states that “Congress shall have the power . . . to declare war.” As Alexander Hamilton indicated, the president is commander-in-chief, but he is to fulfill his responsibilities only within the framework established by the Constitution and subject to the control of Congress.
Of this, there simply is no doubt. Wrote James Madison in 1793, it is necessary to adhere to the “fundamental doctrine of the Constitution that the power to declare war is fully and exclusively vested in the legislature.” Modern supporters of the doctrine of president-as-Caesar make much of the fact that convention delegates changed Congress’ authority from “make” to “declare” war, but they did so, explained Madison, only to allow the president the authority to respond to a sudden attack. When Pierce Butler of South Carolina formally proposed giving the president the power to start war, Elbridge Gerry of Massachusetts said that he “never expected to hear in a republic a motion to empower the executive to declare war.” Butler’s motion was quickly rejected.
The reasoning of the conferees in opposing Butler’s measure was simple. Explained Virginia’s George Mason, the president “is not safely to be entrusted with” the power to decide on war. Mason therefore favored “clogging rather than facilitating war.” James Wilson, though an advocate of a strong presidency, approvingly observed that the new constitutional system “will not hurry us into war.” Instead, “it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress.” Similarly, Thomas Jefferson wrote: “We have already given . . . one effectual check to the dog of war by transferring the power of letting him loose.”
Top Political Headlines
Iraq, Al Quaeda, and Congress’ Power to Declare War
July 1, 2008 by Brutus
Why the “Use of Force” in Iraq Requires a Declaration of War
T.S. Eliot wrote in his immemorial poem The Hollow Men,
So, too, goes the Constitution. The silent and egregious asphyxiation of Article 1, Sec. 8, Cl. 10 is over 50 years old now. The plastic bag placed over this clause in 1949 was intentional. Today, Congress doesn’t even know to whimper as her suitor approaches. What have been the results of this pound of flesh? What have ye wrought? For starters, America has not declared war since WWII and yet, we have been engaged in over 70 military actions.
The purpose of writing this post is to champion the constitutional meaning of a declaration of war and on the other hand, how to know when a formal declaration of war is unnecessary. The modern application has made the distinction not so clear. In the context of Congress’ power to declare war, pragmatism has dictated that initiation of hostilities requires an authorization for use of force. This authorization comes not from Congress but rather from the U.N. Security Council. Indeed, the argument is that Congress “authorized use of force” in Iraq through a “Use of Force” resolution deferring judgment to the Security Council. The argument goes like this: a declaration of war under the Constitution is the same as Congress’ resolution adopting the Security Council’s permission to go to war. Good enough, right? Wrong. This raises troubling questions purposefully ignored by the Republican leadership and others that were probably not contemplated. The dilemma is easily seen with respect to the term “terrorist.”
Purpose for the “Legal” State of War
As the Father of International Law, Hugo Grotius, wrote, the state of war is
See Hugo Grotius, The Rights of War and Peace18 (1901 Dunne Reprint of Campbell Latin translation). This description of affairs between opposing nations, or in some contexts, between a nation and a group of individuals is a critical legal state. It is critical because the parties to this state of affairs immediately become “enemies.” If we know who the enemy is, terms such as “terrorist” are properly side stepped. After all, who exactly is a terrorist? I challenge you to give it a definition before you go further. Seriously, don’t read any further until you write a definition.
The term “terrorist” is a broad and vague term that doesn’t help adjudicate the laws of war. The word “terrorist” can’t be defined without including George Washington, Patrick Henry, Robert E. Lee, and Thomas Jefferson, et al. In short, you can’t make a verb into a noun and expect it to fulfill a legal role.
Let me illustrate this point. Police seek to terrorize criminals. Criminals terrorize their victims. In fact, most common criminals would be terrorists, right? I, too, terrorize my 4 year old son when he is disobedient and my wife when I decide to give chase. Don’t mistake the argument for being flippant or hyper-technical. There is no mistaking that Al Quaeda intends to terrorize their victims and more. And, I fully realize we are trying to describe a particular individual with the term “terrorist.” But with this term, we are left with an analogy to Justice Potter Stewart who defined pornography as, “I know it when I see it.” The problem of murky legal classification is easily seen when we arrest people around the world as suspected “terrorists” instead of determining whether that individual belongs to a group or nation that has declared war on us. We cannot know what legal rights to ascribe or impute to a particular individual. The laws of Nature do not allow us to simply arrest people on a whim. We must have authority. A declaration of war, on the other hand, identifies a specific enemy. We know who to target and who to destroy. We have authority.
When is a Declaration of War Unnecessary?
There are times when a declaration of war is patently unnecessary. Revisited many times as of late, the example of the Barbary Pirates is instructive. They attacked our ships and demanded tribute. They received that tribute from us until we decided not to pay. The host Islamic countries, Algiers, Tunis, and Tripoli decided on two occasions based on the Koran, to declare war on the United States. Congress then passed laws to go after these host countries under its war power and made rules for the capture of vessels. From there, the Marine Corps hymn was born. A declaration from Congress was, therefore, wholly unnecessary because the legal state of affairs constituting war already existed. Congress needed only to implement rules for the capture of the pirates and the authorization of the military force for that purpose.
Bin Laden made no bones about his intent when he declared war against America in 1996. Ergo, a declaration would be unnecessary because the state of affairs was declared. A declaration of war would in fact be redundant. In contrast, with respect to military action in Iraq, we refer to this engagement as the “Iraq War” despite the fact that no declaration exists. Iraq never attacked us and we have no proof that they were going to or had been. Reviewing the Congress’ use of force resolution here is therefore instructive.
What is a Declaration of War?
Congress shall have the power ‘to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.’ Chief Justice John Marshall removed any doubt what this meant:
Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28 (1801) (emphasis added). It is the exclusive act of Congress alone to “declare” war or hostilities. Congress is therefore unable to delegate this exclusivity either in whole or in part to the President or the U.N. Security Council. The only possible means to do so is to follow the Amendment Clause in Article V. And, before the President can end hostilities, he must have the advice and consent of the Senate to conclude treaties of peace. We have yet further guidance. Marshall’s protege’ Justice Joseph Story wrote,
(Emphasis added.) II Story’s Commentaries on the Constitution § 428. Under the Constitution, the word “declare” means much more than simply to publish and to make known the state of affairs. It is a state of affairs that draws after it belligerent rights, it changes the legal status of the Government or the relations of its citizens from that of peace to a state of war, and it brings in a host of duties and obligations of neutral third parties.
Rather than looking to past declarations of war which are clear and name an enemy, turn to the Declaration of Independence. We see a bill of particulars, a set of factual occurrences giving rise to an event. We do not see a series of facts determined by a foreign body of non-citizens giving us the authority to sever the political bands.
Why The Resolution of 2002 is not a Declaration of War
When one looks to the final form of H.J. Res. 114, known as the Authorization for Use of Military Force Against Iraq Resolution of 2002, it is filled with reasons unrelated to “war” debates in Congress. There are 23 or so “Whereas” clauses citing a failure to comply with U.N. Resolutions and broad statements without any facts suggesting the Iraq was going to attack the U.S. in the future. WMDs were the primary reason, WMDs that have never been found. In fact, Sadaam Hussein told his interrogator, an FBI Agent named George Piro, that Sadaam didn’t think the U.S. would invade. And, he said he bluffed possession of WMDs to keep Iran at bay. That Sadaam intended to reconstitute his program is of no great moment. After all, it has been alleged that Russia and Syria were involved in moving the WMDs. Of course, Russia has its own WMDs and to be sure, wanted them back from Iraq. Former head of the KGB, Vladimir Putin, knows well how to use them, especially employing radioactive material to murder dissidents in other countries such as Alexander Litvinenko. Why not pass a “use of force” against these nations too?
Further, when one looks at the Resolution of 2002, we see factual violations relating solely to the U.N. and Security Council Resolutions—an unelected body. We see determinations by an unelected body on violations of its own resolutions. We also see a half-hearted, bald allegation that Al Quaeda who is known to have attacked the U.S. on 9/11 was also in Iraq. (This Al Quaeda in Iraq” allegation is unsupported by any facts in the declaration. According to FBI Interrogator Piro, Sadaam hated Al Quaeda because they were disruptive to his power.) So what does the resolution do exactly? By relying on a factual basis of “violations” of U.N. decrees, Congress knowingly allows itself to dodge constitutional duties to debate and declare war. In effect, what Congress has done is to substitute its judgment for this other body known as the U.N. And, the President is therefore authorized to determine what, where, when, and against whom to go to war. Even if that means being at war for 100, 1000 years—ad infinitum.
Turning to the text of the resolution, Section 3 (a) of the “Use of Force Resolution Authorization” Congress delegates its war power to the President and allows him and the Security Council to substitute the judgment of 535 elected congressman. Specifically, the President is empowered to:
What continuing threat? When one looks to the “Whereas” clauses, the only possible factual threat “continuing” is Iraq’s past conduct in the First Gulf War [i.e., use of force action] and its “violating its obligations under the 1991 cease-fire and other United Nations Security Council resolutions . . . .” Facts were not enumerated in the text. There was no fact indicating a threat to the United States contained in the Resolution. The Resolution of 2002 makes the United States the U.N. enforcer.
On October 3, 2002, Rep. Ron Paul made a motion to declare war on Iraq during discussion on H.J. Res. 114. Then Chairman Henry Hyde (now deceased) rejected Rep. Paul’s motion:
There are those who claim the resolution is the same thing as a declaration of war. If a formal Declaration of War is the same thing as a “Use of Force Resolution,” then why would Rep. Hyde make this comment? Why wouldn’t Hyde simply tell Rep. Paul, “Ron, get over it; it’s the same thing.” If it’s the same thing, then why not declare war? The simple answer is that Hyde knew Congress must avoid declaring war or a state of hostilities because of Article 39 of the U.N. Charter. This article is now the repository of declarations: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression . . . .”
But this isn’t all nor the crux of the matter. Hyde’s initial statement that the President was to use his judgment is most troubling. First, like Hyde and the rest of those who voted for it, the President deferred judgment on use of force to the Security Council. Deferring judgment isn’t the same thing as declaring a thing to exist, here a state of affairs. There was and is no need to declare war against Al Quaeda because this state of affairs already existed. Not so with Iraq.
What is it that the 2002 Resolution purported to make known? That the Security Council declared the state of hostility? That the Security Council gave “life and effect” to the use of force? What threat to “National Security” is the President defending us against? The Court in Boumediene v. Bush had the opportunity to clear this matter up but it chose not to.
Boumediene v. Bush
The flaw in both majority and dissenting opinions in Boumediene v. Bush is apparent. The majority presume a legal state of war with Iraq while the dissent juxtapose this state onto radical Islamic jihaadists. We are now embroiled in a religious crusade and a war that was never intended to be a religious war. This leads to further problems. Even Scalia’s dissent attempts to correct the Resolution of 2002 by reciting incident after incident where the United States was attacked by terrorists at large. As Scalia once said, he is not a textualist. If he were, he would have written that the Resolution of 2002 is defective because it fails to indicate that Congress believes the United States is in a state of hostility or partial state of war. He would have no trouble writing that the government has no personal jurisdiction over the detainees because no “enemy” has been established by “declaring” who that enemy is. Detaining “terrorists” is far more problematic than detaining the enemy. We know the enemy when war is declared because a declaration tells us who we are going after. Right now, the “enemy” is not simply Al Quaeda but any radical, transatlantic, fundamentalist jihadist Islamo-facist group in their own country. What does that mean exactly? What is the definition of a “terrorist”? How do we determine these extreme answers?
CONCLUSION
Raising the Constitution and its requirement to declare war is seen as archaic by those who find it problematic to follow it. In support, it is argued that because we’ve got it wrong for 60 years, there is no need to acknowledge the right path. Consider this analogy: Because we’ve had slaves for 60 years, outlawing slavery is now archaic. Absurd? It makes no sense unless it is acceptable to disregard the oath to preserve the Constitution. Since when did we arbitrarily find it right and pure to pick and choose parts of the Constitution that we should enforce? Words mean something. If not, the oath itself is meaningless. Worse, the Republic is meaningless.
When one purposefully ignores the oath and treats it with little imperative, as Rep. Hyde knowingly did, one makes the law political, subject to the arbitrary whims of elections. The will of the People, the source of authority to govern embodied in the Constitution, is simply ignored. While the Iraq war required a declaration, the war against Al Quaeda did not. I leave you with Doug Bandow’s nice summation:
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