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Edited on Sun May-22-11 08:07 PM by Vattel
that the WPA is unconstitutional because the Constitution, as originally understood, granted the President, as CIC, the right to involve the nation in war. The historical record is crystal clear on this issue: Yoo is wrong. Obviously I can't prove that here, but some of you may find the following small sample of the historical record interesting:
Even Alexander Hamilton, who was very pro executive power, described Congress’s power to create war as “the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war.”
Hamilton also wrote: “While, therefore, the legislature can alone declare war, can alone actually transfer the nation from a state of peace to a state of hostility, it belongs to the “executive power” to do whatever else the law of nations, cooperating with the treaties of the country, enjoin in the intercourse of the United States with foreign powers. In this distribution of authority, the wisdom of our Constitution is manifested. It is the province and duty of the executive to preserve to the nation the blessings of peace. The legislature alone can interrupt them by placing the nation in a state of war.”
In President Jefferson’s first annual message to Congress (December 8. 1801), he recognized that Tripoli had declared war, but denied that he had the constitutional right to authorize anything more than self-defense. Explaining the release of an enemy ship and its crew, he stated: “Unauthorized by the constitution, without the sanction of Congress to go out beyond the line of defence, the vessel being disabled from committing further hostilities, was liberated with its crew. The legislature will doubtless consider whether, by authorizing measures of offence, also, they will place our force on an equal footing with that of its adversaries.”
And in a special message to Congress on Foreign Policy (Dec. 6, 1805), President Jefferson remarked, “Congress alone is constitutionally invested with the power of changing our condition from peace to war . . .”
Jefferson again: “The idea seems to gain credit that the naval powers combined against France will prohibit supplies even of provisions to that country. Should this be formally notified I should suppose congress would be called, because it is a justifiable cause of war, and as the Executive cannot decide the question of war on the affirmative side, neither ought it to do so on the negative side,”
In a letter to General William Moultrie (Aug. 28, 1793), President Washington wrote: “The constitution vests the power to declare war in Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject and authorized such a measure.”
Madison wrote: “In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department.”
Madison also wrote: “‘The president shall be commander in chief of the army and navy of the United States, and of the militia when called into the actual service of the United States.’ There can be no relation worth examining between this power and the general power of making treaties. And instead of being analogous to the power of declaring war, it affords a striking illustration of the incompatibility of the two powers in the same hands. Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded.”
And in a message to Congress urging war against Great Britain (June 14, 1812), President Madison wrote: “Whether the United States shall continue passive under these progressive usurpations and these accumulating wrongs, or, opposing force to force in defense of their national rights, shall commit a just cause into the hands of the Almighty Disposer of Events . . . is a solemn question which the Constitution wisely confides to the legislative department of the Government.”
In the Pennsylvania ratifying convention, James Wilson argued (Dec. 7, 1787): “This system will not hurry us into war; 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, for the important power of declaring war is vested in the legislature at large.”
A delegate to the Virginia ratifying convention, John Marshall, later served as Chief Justice of the US Supreme Court and in an 1801 opinion wrote, “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.”
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