Presidential hopeful Ron Paul insists the U.S. government shouldn’t go to war without a declaration of war. His son Rand has also taken this position, as have several libertarian-leaning Tea Party candidates. According to the U.S. Constitution, Congress is invested with the power to declare war. These constitutionalists say this declaration should be a requirement before military action is authorized.
I’m not sure this is resonating with those unfamiliar with what a declaration of war means. For most people, the declaration of war is a formality whereby the president makes sure it is agreeable to the Congress that he utilizes the military. Some might even go so far as to say it is the president “asking permission” from the Congress to do so. By this reasoning, both Presidents Bush and Obama have complied, especially considering H.J. Res. 114 (October 16, 2002). With that resolution, Congress authorized the president to use military force in the war on terror. What is the difference between that and a declaration of war?
The answer is both intuitive and supported by history. First, a “declaration” has nothing to do with “permission.” Neither is it the same thing as creation or initiation. One can only declare something that already exists. Therefore, a declaration of war does not create a war or initiate a war. A declaration of war is a resolution passed by Congress recognizing that the United States is already at war.
The intent of the declaration of war power is for the government to have an adjudication process for war analogous to a criminal trial for domestic crimes. Evidence must be presented that the nation in question has committed overt acts of war against the United States. The Congress must deliberate on that evidence and then vote on whether or not a state of war exists. The actual declaration of war is analogous to a conviction at a criminal trial. The Congress issues the “verdict” and the president is called upon to employ the military. To wage war without a declaration of war is akin to a lynching: there has been no finding of guilt before force has been employed in response.
Herein lies the difference between H.J. Res. 114 and a declaration of war. In order for President Bush to have obtained a declaration of war against Iraq, he would have had to present his case that Iraq had already committed overt acts of war against the United States. Like a prosecutor, he would have had to convince the “jury” (Congress) that Iraq was guilty – not of “possessing weapons of mass destruction” but of having already aggressed against the United States. Obviously, he would not have been able to do this. In fact, the absence of any overt acts of war by the nations in question is the reason there were no declarations of war against Korea, Viet Nam, Bosnia, or any other nation that the U.S. government has waged war against since WWII.
The declaration of war power requires the government to obey the law of nature that no individual or group may initiate force against another. It ensures that before the executive launches a military action against another nation, a separate body deliberates on evidence and agrees said nation has been an aggressor. Only then is waging war justified.
This interpretation is supported by every declaration of war in U.S. history. Here are two examples.
When James Polk asked Congress to declare war on Mexico in 1846, he said,
“But now, after reiterated menaces, Mexico has passed the boundary of the United States, has invaded our territory and shed American blood upon the American soil. She has proclaimed that hostilities have commenced, and that the two nations are now at war. [emphasis added]
As war exists, and, notwithstanding all our efforts to avoid it, exists by the act of Mexico herself, we are called upon by every consideration of duty and patriotism to vindicate with decision the honor, the rights, and the interests of our country. . . .
In further vindication of our rights and defense of our territory, I invoke the prompt action of Congress to recognize the existence of the war, and to place at the disposition of the Executive the means of prosecuting the war with vigor, and thus hastening the restoration of peace.” [emphasis added]
After reviewing Polk’s request, Congress issued the following declaration of war,
“Whereas, by the act of the Republic of Mexico, a state of war exists between that Government and the United States: Be it enacted by the Senate and House of Representatives of the United States of American in Congress assembled, That for the purpose of enabling the government of the United States to prosecute said war to a speedy and successful termination…” [emphasis added]
Note the italicized words. The state of war already exists because of the act of the Republic of Mexico.
Americans are probably most familiar with the last occasion upon which the United States declared war. In what may have been the only constitutional act of his entire presidency, President Roosevelt asked Congress to declare war on Japan during this famous speech:
Mr. Vice President, Mr. Speaker, Members of the Senate, and of the House of Representatives:
Yesterday, December 7th, 1941 — a date which will live in infamy — the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan.
The United States was at peace with that nation and, at the solicitation of Japan, was still in conversation with its government and its emperor looking toward the maintenance of peace in the Pacific…Yesterday, the Japanese government also launched an attack against Malaya. Last night, Japanese forces attacked Hong Kong. Last night, Japanese forces attacked Guam. Last night, Japanese forces attacked the Philippine Islands. Last night, the Japanese attacked Wake Island. And this morning, the Japanese attacked Midway Island. I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December 7th, 1941, a state of war has existed between the United States and the Japanese empire.” [full text of speech here]
In response, Congress resolved,
“Whereas the Imperial Government of Japan has committed unprovoked acts of war against the Government and the people of the United States of America: Therefore be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial Government of Japan; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States.”
Every other past declaration of war in U.S. history follows exactly this format. The president presents evidence. The Congress votes on the validity of that evidence. It declares that war already exists. It then directs the president to use the military to end the war.
Had this constitutional process been followed, the United States would not have been involved in the wars in Korea, Viet Nam, Iraq, Somalia, Bosnia, or Afghanistan. The declaration of war power ensures the U.S. government never initiates force, but only uses the military to defend its citizens against an aggressor.
Following the constitution on this point would have kept the United States out of every war since WWII and prevented the U.S. government from running up a large portion of its unresolvable debt. Abiding the law of nature is not only moral, but cost-effective.
During the South Carolina Republican Primary Debate on May 5, Herman Cain articulated his position on the government’s war powers. He stated that, as president, he would not involve the U.S. military in war unless three criteria were met. 1. There was a clear objective. 2. There was a verifiable U.S. interest in question. 3. There was a clear path to victory.
While his comments clearly titillated the audience panel interviewed after the debate, one must recognize that Adolph Hitler’s wars would have been justified on this basis. Are those the only criteria upon which the U.S. government should base its decision to go to war? How about, “They attacked us?” That should be the one and only reason.
Going to war without a declaration of war not only represents aggression against the nation in question, but against every U.S. taxpayer as well. The only argument that can be made for taxing a free people is that taxation is necessary to underwrite protection of their lives, liberties, and properties. The only way they can be compelled to pay for a war is if a state of war exists between them and another nation. To tax them for a war fought for other reasons, including defending people other than themselves, is to aggress against them. Once the government is allowed to do that, it is time to stop calling the United States “the land of the free.”
 Twenty-Ninth Congress Sess. I Ch. 16 http://www.lawandfreedom.com/site/historical/Mexico1846.pdf
 Seventy-seventh Congress Sess. 1 Ch. 561 http://www.lawandfreedom.com/site/historical/Japan1941.pdf