Re: the constitutionality of declaring war

The lead editorial in The New Yorker is called “The Talk of the Town” and is usually
written by Hendrik Hertzberg who is, believe it or not, an intelligent liberal (they do
exist). He’s the kind of person with whom you might not always agree, but who makes
intelligent arguments. To compare, on the other end of the spectrum, personally I find
Mark Steyn not only funny, but usually pretty intelligent, although I only agree with 
maybe 1/3 of the time. David Frum I rarely agree with, either, but I don’t find him
humourous OR intelligent. Oh, and you know a guy’s intelligent when he knows that a
female professor emeritus is properly called a professor emerita! (like me teasing John
about conjugating the word “signaturi”)

Anyway, I’m not even a scholar on my own country’s constitution, let alone yours’, but 
find Hertzberg makes an interesting argument here. What I find admirable about it is 
I know from other things he’s written that he’s dead set against war with Iraq (as I 
and yet he finds there’s justification for Bush going to war, constitutionally 
whether he (Hertzberg) likes it or not -- and the argument is something which would, I
would think, appeal to most conservatives, although it's got some warnings and

The New Yorker puts a lot of its current issue online, but the problem is that, thanks 
S-Cargo (Escargot) Canada*, by the time I get an issue, it’s a week old. And they don’t
post editorials from their archives, so here’s the column in its entirety.

*How did you think the term snailmail was coined?

Here’s the column, from the 30/09/02 issue of The New Yorker:


Last Tuesday was Constitution Day, the anniversary of the wrap party of the original
Constitutional Convention, when the thirty-nine delegates still in Philadelphia, before
saddling up to disperse to their homes up and down the Eastern Seaboard, got together 
last time to sign the document they had just spent four months hashing out. 
Day, like Flag Day and Armed Forces Day, is one of those would-be holidays that never
quite achieved escape velocity Its just another day at the office. But Joyce Appleby, a
busy and eminent professor emerita of American history at U.C.L.A, took it off anyway.
She spent it in Washington, where she presented members of Congress with a petition
signed by nearly thirteen hundred of her professional colleagues. "We, the undersigned
American historians, urge our members of Congress to assume their Constitutional
responsibility to debate and vote on whether or nor to declare war on Iraq," the 
began. "We ask our senators and representatives to do this because Congress has not
asserted Its authority to declare : war for over half a century, leaving the ' 
solely in control of war powers to the detriment of our democracy and in clear 
of the Constitution."

Just how many wars the United States has fought since that first Constitution Day, ten
score and fifteen years ago, is a hard number to pin down. How does a couple of hundred
sound? There have been eight or nine that were big enough so that most reasonably
attentive college students could probably name them, from the War of 1812 to the 
Gulf War. There have been a dozen other conflicts that involved the accoutrements of 
time warfare) such as pitched battles or naval engagements. And if you count the many
so-called Indian wars, the various Latin-American adventures, and all the military
episodes that, to their participants at least, felt an awful lot like war (from the
forays against the Barbary pirate states of North Africa at the outset of the 
century, to the Balkan interventions at the close of the twentieth), the numbers begin 
mount up.

Formal declarations of war, however, are as rare as the thing itself is common. There
have been only five: for the War of 1812, the Mexican War (1846), the Spanish-American
War (1898), and the two World Wars. The idea that there was once a time when American
soldiers never went into battle without a declaration of war is an Edenic fantasy—an
exercise in nostalgia for a past that never was, like the idea that the government used
to belong to "the people" and now serves "the special interests." Anyway, a formal
declaration is hardly a necessary condition for a war to be, so to speak, 
Our bloodiest undeclared war was not Vietnam; it was the Civil War, which killed more
Americans than all the nations wars put together except the Second World War) and which
the national imagination has sacralized. In 1861, the government of the United States
viewed itself as suppressing a lawless rebellion, not as fighting the armies of a
sovereign state. For Congress to have declared war on the Confederacy would have been 
bestow upon the Slave Power a kind of backhanded diplomatic recognition. (The same
difficulty would attend a declaration of war on Al Qaeda and, more broadly, bedevils 
whole metaphor of the “war on terrorism”: it affords the enemy a status and dignity he
doesn't deserve.)

Still, the fact that it has been a record sixty-one years since Congress formally
declared war has to mean something, and it obviously doesn't mean that the nation has
beat its swords into ploughshares. Nor is the omission purely a product of Presidential
usurpation. During the first half of the twentieth century, declared war came to mean
world war, total war, war to the finish—exactly what everyone on earth most feared
throughout the West’s long, tense standoff with nuclear-girded Soviet totalitarianism.
Psychologically, declaring war (in Korea or Vietnam, for example) would have felt like
tempting the most terrible of fates. And, while the wars of the past half century were
invariably undertaken at Presidential initiative, it is not quite true that they were
fought without congressional authorization. Congress, on August 7,1964, gave its 
to combat in Vietnam via the Gulf of Tonkin resolution. The trouble with that 
was less that it failed to meet strict constitutional standards than that it was based
upon reports of alleged acts of North Vietnamese aggression so exaggerated as to amount
to lies. The War Powers Resolution, passed in 1973 In the wake of the Vietnam 
was an attempt to right a perceived imbalance. Every President since then has dismissed
it as unconstitutional, and every President has more or less abided by it.

The signers of the historians' petition no doubt include some for whom the 
issue is a screen for a reflexive rejection of any use of American military power. But
the list also includes the names of some of the most distinguished explorers of the
American past, including Alan Brinkley, Henry F. Graff, Gerda Lemer, James M. 
Jack N. Rakove, Arthur M. Schlesinger ,Jr., Gaddis Smith, and Sean Wilentz. They
presumably understood that a formal declaration of war is out of the question. What 
were actually seeking—and what is actually required, constitutionally and 
a vote on a resolution authorizing the use of force and specking the conditions for 
use. While the historians' petition was being circulated, the Bush Administration was
still maintaining that it had the right to make premeditated, pre-emptive, open-ended 
on a large scale without so much as a wink from Congress (let alone from the United
Nations). By the time the petition was presented, however, the historians' point had 
carried; and on Thursday, the White House sent a "discussion draft" resolution to 

That Congress will pass some such resolution) and soon, is a foregone conclusion. But 
text of the resolution is not, and the text matters. The task of the resolution-writers
in Congress mirrors that of those at the U.N., where a similar exercise is under way. 
the U.N., the focus Is on Saddam Hussein. There, any new Security Council resolution 
better make it unmistakably clear that the evasions and the defiance of the past decade
will no longer be tolerated, that "unconditional inspections" must be absolutely and
non-negotiably unconditional, and that the alternative to full cooperation is war. On
Capitol Hill, the focus is on George W. Bush. The White House text is the blankest of
blank cheques; it simply rehearses the case against Saddam and authorizes the President
to do whatever he wishes, not only in Iraq but throughout "the region." That won’t do.
Congress has the opportunity to steer the President toward a goal that makes sense.
"Regime change" in Iraq is not that goal. Bush has occasionally said that regime change
is his "policy." And it is certainly something to be desired. But he did not demand it 
his speech to the General Assembly, and unless he is willing to drop it under the right
conditions then his speech was given in the worst of bad faith. Ultimately, regime 
makes sense only as a last resort—as a means, after all else has failed, to the end of
eliminating an Iraqi threat of weapons, especially nuclear weapons, of mass 
That should be America's goal, and the world’s. Congress now has a chance to keep open
the possibility, however slim, that war can be avoided. If it does that, then truly it
will have something to declare. —Hendrik Hertzberg

…and let me add that such a strategy would also bring Germany and Canada on-side, too,

Marc A. Schindler
Spruce Grove, Alberta, Canada -- Gateway to the Boreal Parkland

"The greater danger for most of us lies not in setting our aim too high and falling
short; but in setting our aim too low, and achieving our mark."
--Michelangelo Buonarroti

Note: This communication represents the informal personal views of the author solely; 
contents do not necessarily reflect those of the author’s employer, nor those of any
organization with which the author may be associated.

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