by Mike Bodine
for We The People Foundation

War Without The Constitution:
How it Really Works

The Capitol’s a Stage and All of Government Its’ Players

In the January 7th, 1999 issue of USA Today, Robert Reich, former Secretary of Labor under Bill Clinton, uttered this thought:

"The dirty little secret is that both houses of Congress are
irrelevant." Reich cut to the chase when he said that "America's
domestic policy is now being run by Alan Greenspan and the Federal
Reserve and America's foreign policy is now being run by the
International Monetary Fund [IMF]." And, "...when the president decides
to go to war, he no longer needs a declaration of war from Congress."

As this nation prepares to send its armies into Iraq and our government uses the dominant media on a daily basis to justify it crusade into the Mideast, it is worth examining in detail, and recording for posterity, how our Constitutional system of representative government actually arrived at the decision to commit the United States to this war.

And therein lies the problem. We don’t declare "war" anymore.
As we shall soon see: This is NOT a war.

It looks like a war. It sounds like a war. Legions of our troops are deployed like in war. Our tanks, planes and bombs will be used -- just like in war. And many sons and daughters, husbands and wives -- will become disabled and die – just like in war. Even the media says we are "going to war" with Iraq to win the "War on Terrorism".

The only thing remotely more nauseous than war itself, is the fact that our government has virtually betrayed our own Constitution in its quest to commit this nation to war. Instead of a full, painstaking, public and legislative debate requiring the full assent and commitment of the People to formally declare war, our elected representatives have merely passed a legislative "resolution" ostensibly conveying to the President a power that cannot be legally delegated to him under our Constitution as it is written.

Indeed, many representatives seem far more concerned about maintaining an image of "solidarity" and about our relationship to the United Nations than they seem to be about the Constitutional mandates that our nation must legally adhere to if they seek to commit the armed forces of this nation to war.

Worse yet, as we shall see from the following excerpts from the House International Relations Committee hearing of October 2nd and 3rd, 2002, is that the "legislative" process actually exercised to reach this crucial resolution was essentially just a "play" staged in the Committee room for the People and the C-SPAN cameras.

The committee chair, Henry Hyde, made it abundantly clear that dissention by representatives was clearly unwanted and insured that full debate on the various amendments and the resolution itself was stymied in order to expedite the all-but-certain conclusion of the Committee and move the bill to the House floor and the Senate for final passage.

This Foundation has previously documented the specific Constitutional issues surrounding the war powers clauses and the constitutional controversy and risks raised by proceeding to commit to war in this manner. Our questions were put forth to the government in a formal petition for redress of grievances, signed by thousands, that was -- and remains -- summarily ignored by our government.

The following excerpts from the transcript of the October 2 and 3rd House International Relations Committee hearing on the Iraq resolution clearly demonstrate, and record for history, that our leaders are fully aware of the Constitutional improprieties that they have committed.

We would also point out that it is strange that the full video record of the second day’s proceeding is noted on the Committee’s own website as being incomplete due to "technical difficulties". It further strange that the hyperlink to the plain text version of the transcript for the second day was also not working properly. Rep. Ron Paul’s office further reported that the separate C-SPAN recording of the hearing was also incomplete due to "technical difficulties". (The excerpts cited here were retrieved from a .pdf version of the full hearing transcript.)

The violations of our Founding Document witnessed in this hearing, are prima facie evidence of our representatives’ failure to uphold their oaths of office. They demonstrate their disdain of the People’s inherent right to a Constitutional form of government. That they do this while committing this nation to war should be inexcusable.

As Chairman Hyde is quoted (more fully) below,

"It is fascinating to go back in history and see how our Constitution
was drafted and what it means. There are things in the Constitution
that have been overtaken by events, by time. Declaration of war is one."

Let us make a short review some of the hearing content in detail and examine how our government committed us to war in Iraq while forsaking our Constitution:

We begin on page 15 of the transcript:

Chairman HYDE. Thank you. The gentleman from New Jersey, Mr. Payne.
Mr. PAYNE "….Only Congress has the authority to declare war."

Note how Rep. Payne acknowledges for all the Constitutional truth. Unfortunately, 31 of the 49 other committee members eventually pass the Iraq resolution anyway. During the hearing, no representative except Rep. Ron Paul (below) discusses and defends the limits of the Constitution in any substantive manner.

On page 17, Mr. Brown of Ohio:

"The whole point of the Security Council is to prevent members
states, including veto wielding permanent members, perhaps especially
veto wielding permanent members, from launching unilateral, unprovoked war."

Mr. Brown is just one of the representatives that goes to significant lengths to discuss the relationship between the United States and the United Nations, the prior Gulf War ("war"?), etc. It is all of our shame that his concerns about launching a pre-emptive, unilateral war will not be fully addressed because he, and other representatives, did not uphold their oath of office and demand that a declaration of war be sought.

On page 29 From Colorado, Mr.Tancredo:

"But I will tell you this, that my vote to go to war, the vote I will
take as to whether or not to send somebody else’s child to war, is
whether or not I am willing to send mine. And that is a higher
standard than I can possibly establish for anything else I do. And
so that is why it is a tough, tough vote to take."

Mr. Trancredo does get bonus points for acknowledgement that this is "war", his brief reference concerning constitutionally protected civil liberties and the problems associated with launching a "first-strike" war (see the full transcript).

Unfortunately, as witnessed by his affirmative vote on the final resolution, he is indicating that he is more than willing to violate the Constitution’s restrictions regarding declaring war AND that he will send his children to that war – all presumably to protect the Constitution and our Republic.

Rep. Ron Paul starts his initial protest of the "resolution" on page 30:

Mr. KING. The gentleman from Texas, Dr. Paul.

Mr. PAUL. Thank you, Mr. Chairman.

Mr. Chairman, I welcome the opportunity to speak out in opposition
to this resolution. Let me very briefly state what the essence
of the whole resolution says. And it is in section 3, and it is really—
it is 10 pages long, but it is narrowed down to two sentences:
We are giving the President the authority to defend the national
security of the United States against the continuing threat posed
by Iraq. In other words, we are transferring the power to declare
war to the President. He can declare the war and fight the war
when he pleases. And that is number one.

Number two, equal to number one, enforce all relevant United
Nations Security Council resolutions. In this bill that we are working
on, they mention United Nations 32 times—I am sorry, 25 times.
They never mention article 1, section 8, once.

I have three main concerns.

One is, first, the merits of the war itself—that has been addressed
rather extensively so far
Two is, the constitutional process, which I think we have totally neglected.

And three is also something else that we don’t talk about much,
but gets us to these places so often, and we wonder why we are
here, and that is the philosophy of our foreign policy.
Lately, in dealing with this resolution, we deal with the technical
aspects of it. We have long forgotten about what the morally just
war was all about, defined more than a thousand years ago. And
I don’t think this one meets up to this.

It has been stated that we are starting something historically different,
and I believe we are. We are institutionalizing the concept
of preemptive war. We are embarking on something brand-new and
different. It is not part of our traditions and it is not part of our

War, and a morally just war, should be defensive, after you have
been attacked and aggression has been committed against us. Also,
it should be of last resort. Negotiate, negotiate, negotiate. It should

(Page 31 Paul continues)

be the last resort. And also the legitimate authority has to be there
to institutionalize the war, and I think we come up short with this.
We do not have any evidence that aggression has been committed
by Saddam Hussein against us, no matter how bad a guy he is.

And there are a lot of bad guys around the world. There is no clear-cut
evidence that there is an imminent threat right now. Even Secretary
Powell admits the military of Iraq is much weaker than it
was 12 years ago. And so far there is nothing brand-new compared
to 2 months ago, 2 years ago, or even 12 years ago that says that
we must send our kids over there to fight this war.

The constitutional process, I think, has been sadly neglected. It
is very clear in the Constitution and it is very clear in our history
about where this power to wage war and declare war resides. And
it resides in the U.S. Congress.

Now, the answer so often that I hear when I raise this is, but
we have done it before. Of course, we have done it before. But does
that make it right? Oh, we have the War Powers Resolution, and
that permits war for 60 to 90 days. That is an illegal, unconstitutional
transfer of power.

If we want the President to make these decisions, the Constitution
should be amended, and it hasn’t been. And that is what we
are doing with this resolution, we are circumventing the Constitution
to allow the President to make a decision that falls on our
shoulders that we are neglecting. And I think we should think
about that seriously, because I think it fits into the philosophy of
the last 50 or 60 years.

The last half of the last century we did evolve our foreign policy
to the point where now we have become the self-appointed world
policeman. We have accepted not the foreign policy of the Founders
and the foreign policy of the Constitution, where you have a strong
national defense and you defend our country while being friends
and trading, but we have involved ourselves in entangling alliances
and involved ourselves in the internal affairs of so many nations.

But now we have allowed this to happen to the point where we
are responsible for everything and yet the Congress is responsible
for nothing. Congress is there to rubber-stamp what is happening,
and our—not only are we derelict in our duty in transferring this
power to the President, both the executive branch and the legislative
branch are derelict in allowing this power once again to be
transferred to the United Nations.

We should take this very seriously, because the policy of foreign
intervention has a poor record. It hasn’t worked very well. I believe
because we have avoided the Constitution in the way we declare
war, we have had so many failures, we don’t win wars anymore.
And we should be very cautious to follow the rule of law.

Mr. KING. The time of the gentleman has expired.

Rep. Paul has more to say later on the hearing’s second day as his amendment is considered.


Chairman HYDE. The gentleman from California, Mr. Rohrabacher.

"Let me just suggest this. No one is asking anyone to go to a
war—to go to war against Iraq or the Iraqi people. We are talking
about liberating the people of Iraq from Saddam Hussein, this
monster who has murdered them, who holds them in an iron grip.

They will be dancing in the streets of Baghdad and waving American
flags when American troops and their own people come to liberate
them. This is a liberation."

This representative seems to reside contently in the "it’s not a war" room. Launching a preemptive, military invasion of a foreign, sovereign nation is, according to Rohrabacher, a "liberation". Rep. Rohrabacher should be reminded of the title of the resolution:



Also on page 34:

Chairman HYDE. The gentlelady from California, Ms. Lee.

Ms. LEE. Thank you, Mr. Chairman.

Today, we are confronting one of the most important questions
we face as Members of Congress, whether or not to wage war.
And, Mr. Chairman, I would like to reread the statement by the
Congressional Black Caucus, which was unanimously adopted; and
I would like to ask for unanimous consent to insert it into the record.

[The information referred to was not submitted.]

Chairman HYDE. Without objection.

Ms. LEE. Thank you, Mr. Chairman.

We recently held our Congressional Black Caucus weekend, and
the theme was a voice for global understanding. We adopted this
resolution, and it says, once again:

‘‘We oppose a unilateral first-strike action by the United
States without a clearly demonstrated and imminent threat of
attack on the United States.

‘‘Only Congress has the authority to declare a war.. . .

There’s that pesky reference to the Constitution again. Unfortunately, Rep. Lee was not present for the Committee’s final vote on the resolution and therefore, did not cast a vote.

Starting on page 62 -- Chairman Hyde speaks on the opening of the hearing’s 2nd day:

"Over a century ago, in another conflict, Lincoln said that ‘‘we cannot escape history.
We of this Congress and this administration, will be remembered in spite of
ourselves. No personal significance, or insignificance, can spare one or another of
us. The fiery trial through which we pass, will light us down, in honor or dishonor,
to the latest generation.’’ Those same words apply to us here today.

A century ago, Britain stood majestically at the height of her power. Within 40
years, the knife was at her throat, and she survived only because we were there
to rescue her. But there is no one to rescue us.

We cannot entrust our fate to others, for others may never come. If we are not
prepared to defend ourselves, and to defend ourselves alone if need be, if we cannot
convince the world that we are unshakably resolved to do so, then there can be no
security for us, no safety to be purchased, no refuge to be found.

In the name of those brave souls, both living and departed, who purchased our
freedom, let us now act."

Most Americans probably believe that all those People that Chairman Hyde refers to above gave their lives to defend the Constitution. How ironic that Hyde sits at the helm of a Committee determined to commit the nation to war using unconstitutional means. 



The Chair recognizes Mr. Lantos.

Mr. LANTOS. Thank you very much, Mr. Chairman. As always,
my friend from California submits a carefully crafted and thoughtful
amendment, and under ordinary circumstances I would offer to
work with him on his amendment, because I know that his basic
position is parallel, if not identical, to those of us who support the

As the gentleman knows, as all Members know, the resolution we
are considering was carefully crafted and agreed upon by the Republican
leadership of this body, the Democratic leadership of this
body, and the White House. And at this stage, amendments do not
serve a constructive purpose because the complex process of re-opening
these negotiations is simply not pragmatic, realistic, or feasible.

Rep. Lantos speaks here for the authors of the play -- the "powers that be". It seems to Lantos, "We’ve had enough talk and debate -- let’s just get this passed the way the leadership has already decided. War talk is so messy. No need to complicate things with loud or long debates about the terms, conditions and consequences -- or even the Constitutional propriety of passing to the President the ‘power’ to commit this nation to war.

PAGE 87, Rep. Ron Paul jumps in on one of the amendments being considered:

Mr. PAUL. Thank you, Mr. Chairman. I want to speak in favor
of the amendment.

It is not the type of amendment that I would have drawn up. It
does recognize the authority of the United Nations, and I do not
believe our national security interests and our national sovereignty
should depend on the United Nations, but nevertheless this amendment
is a big improvement over the current resolution. So I will
support this amendment.

But I think it is important to note that the process that we are
dealing with is very important. As I mentioned yesterday, we
should not forget that the overall philosophy of our foreign policy
brings us to events like this because our philosophy and our foreign
policy for 50 years have been designed not to declare war, but to
slip into war, get sanction of war by the United Nations, and also
to give our Presidents more power and authority than the Constitution
gives them.

So I want to remind my colleagues of that as well as of the short-comings
of this war. Because it really isn’t a war in national defense.
We have not been attacked. So I think we should continue
to remember that and that we deal with the process, we deal with
the philosophy and we deal with the wisdom, or lack of wisdom, for
the war.

This resolution moves in the direction of restraint, making use
of the United Nations in a reasonable fashion, under today’s circumstances,
which I think is much better than getting—pressuring
the United Nations to rubber-stamp our efforts to go to war in the
name of peace.

Because, of course, you don’t go to the United Nations to declare
war. There is no provision for that. The United Nations can only
pursue peace. That is why when you go to war under the United
Nations banner, it is not called war. They don’t declare war; they
call this a ‘‘police action’’ or a ‘‘mission for peace.’’ I think it is misuse
of words and terminology, and we should home in on what we
are doing here.

We are talking about war. We are talking about going to war.
And I support this resolution because I think it will make us stop
and think a little more carefully without a total rejection of the
international order that exists, that I would like to someday challenge,
and I continue to challenge. But we should continue to watch this.

Unfortunately, the transcript doesn’t convey what happened following Rep. Paul’s comments but they
apparently caused some stir requiring Chairman Hyde to restore order.

PAGE 100

Chairman HYDE. The Committee will come to order.

The amendment of the gentleman from Michigan, Mr. Smith, is
the pending order of business, and Congressman Ron Paul of Texas
was about to address the question. So, Mr. Paul, you are recognized.

However, before that, what became of the slip I have here?

We have 11 amendments now. I am told the plane going to Hawaii
for Patsy Mink’s funeral will leave after the last vote, which
is probably the next vote, which means we are getting short on
time. I am going to ask unanimous consent that each and every
amendment be debated, limited to 20 minutes equally divided between
proponent and opponent. Let’s see how far we get.

Here we begin to understand the real priorities of our legislative process. Even though the resolution being debated means war for our nation and the potential for untold, and unforeseen, consequences for the nations of this Earth, there are planes to catch and a final vote to take. Hurry it up folks!

Beginning on PAGE 122 is Rep. Ron Paul’s proposed amendment which caused quite a stir. The text speaks for itself:.



Strike all after the resolving clause and insert the
following:‘‘That pursuant to article I, section 8 of the
United States Constitution,a state of war is declared to
exist between the United States and the Government of
Iraq and the President is hereby authorized and directed
to employ the United States Armed Forces to carry on
war against the Government of Iraq and to bring the
conflict to a successful conclusion.’’.



Amend the title so as to read:

‘‘Joint Resolution declaring a state of war between the United States and the Government of Iraq.’’.

Mr. PAUL. I ask unanimous consent that it be considered as read
and that the three amendments be considered as one.

Chairman HYDE. Without objection, so ordered. The gentleman is
recognized for 5 minutes.

Mr. PAUL. Five or ten?
Chairman HYDE. I guess 10. I tried to get away with something.

Mr. PAUL. Thank you, Mr. Chairman. Mr. Chairman, this is a
substitute amendment and it is a simple, clear-cut, straight-forward,
front-door declaration of war. No back door to war, it is
the front door. I am depending on you, Mr. Chairman, to make
sure it doesn’t pass.

Chairman HYDE. A very wise move.

Mr. LANTOS. You may count on me, too.

Mr. PAUL. Mr. Chairman, I will be voting with you and the Administration
on this bill, on this particular substitute. But nevertheless,
I consider what I am doing here very important and not
frivolous, because this is a declaration of war. As I mentioned before,
in the resolution that we have before us, we never mention
war. We never mention article I, section 8. We only talk about
transferring the power and the authority to the President to wage
war when he pleases. I consider that unconstitutional.

Of course, we cite the U.N. 25 times as back-up evidence for
what we are doing, so I think it is appropriate for us to think about
our oath of office and the Constitution, what America is all about.

Because, quite frankly, I think we have suffered tremendously over
the last 50 or 60 years, since World War II, since we have rejected
this process, because we don’t win wars but men die. One hundred
thousand men have died in that period of time, and many hundreds
of thousands wounded, and many ignored. The Persian Gulf
syndrome ignored, yet over 100,000 may be suffering from that.
I see this as very important that we should be up front with the
American people, because, if not, we can well slip into war once
again. And that, to me, is not what we are supposed to be doing.
We are supposed to be very up-front in doing this as we have been
obligated to do.

I would like to read a quote from a former President of a few
years back. He had something to do with the Constitution. He
speaks for that time. Of course, most people believe today that the
Constitution is a living, ever-changing document, that the truth is
not everlasting and that the founders are irrelevant.

But we still have the law on the book. We haven’t changed the law. And this
quote emphasizes how they looked at foreign policy and the separation
of powers, because at the time of our Revolution they had first-hand
experience of what happened in Europe when the King or one
leader has the authority and the power to go to war.

So it was strongly emphasized by those who were writing the
Constitution of where this war power would reside. It was put into
the legislative branch of government, which was closest to the people.

That is very important, because our failure to win wars is one
of the strongest motivations on my part to address this subject.
Quite frankly, I believe that the Persian Gulf War, one, never
ended. We are just dealing with one more segment of a war that
is perpetual because it was not declared. We half-heartedly committed,
we had the restraints of the United Nations, we did not go
for the right reasons, and we didn’t win. Therefore, we didn’t do
the job that should have been done in 1990 if we had declared war.

The same thing could have been said about Korea and Vietnam.
It is time we address the process just as emphatically as we address
the pros and cons of whether this country should go to war.

Now, let me quote from James Madison. Madison said in 1798:

‘‘The Constitution supposes what the history of all governments
demonstrate, that the Executive is the branch of power
most interested in war and most prone to it. It has accordingly,
with studied care, vested the question of war in the legislature.’’

We have now just carelessly over the years, and today once
again, easily given this up.

You say, no, this doesn’t necessarily mean that, and we have
done if before. We have allowed our Presidents to do this. But if
the President can go to war, this is the permission that we are giving.

On page 127 of the transcript, Chairman Hyde takes the microphone and in just a few sentences reinforces our worst fears:  The Constitution is now irrelevant.

Chairman HYDE. All right. The Chair yields himself the 10 minutes
in opposition to this.

It is fascinating to go back in history and see how our Constitution
was drafted and what it means. There are things in the Constitution
that have been overtaken by events, by time. Declaration
of war is one. Letters of mark and reprisal are others. There are
things no longer relevant to a modern society.

The problem with a declaration of war is that is a formal step
taken by a nation. And when you do that, you kick in other laws.
Enemy aliens—people suddenly become who are of German extraction
or Saudi extraction, depending on whom you are declaring war
against, suddenly become enemy aliens. Trading with the enemy
becomes effective. Therefore, if a country is trading with your
enemy, they are your enemy.

Most importantly and psychologically, if you declare war, if we
had declared war on Vietnam, China would have had to declare
war on us, and then the Soviet Union, not to be outdone fraternally,
would have had to declare war on us. And you start a chain
of events

That is the last thing you want to do. You want to isolate
these conflicts. You don’t want them to metastasize.
Declaration of war metastasizes conflict.

Insurance policies are invalidated in time of war. There are so
many consequences, criminal statutes. So there are laws affecting
military personnel in time of war and in time of peace.

Now, the Congress always has the last word in war and peace
because we control the purse strings. We could introduce a bill and
rush it through that would say no funds appropriated herein may
be used to pay for an expedition to France or to the Caribbean.

Congress always has the last word because we control the purse
strings. But now this resolution we are dealing with today does not
declare war. It does not approach war. War may never happen. If
we mean what we say and we say what we mean and we have a
reasonably tough posture, we may avoid war.

Why declare war if you don’t have to? We are saying to the President,
use your judgment. We know you have tried to have inspections
work. We have tried the U.N., they have been made a fool of
for 11 years now. The League of Nations was muscular compared
to the U.N. That is the situation we are in now.

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 be-cause
it has the effect of pyramiding when what you want to do is to isolate.

So with great respect for the gentleman’s knowledge of political
science, I suggest this is inappropriate, and I would hope it would
be defeated.

Thank you, Mr. Chairman.

Chairman HYDE. Thank you.


Mr. Royce.

Mr. ROYCE. Thank you, Mr. Chairman.

And I think a formal declaration of war, as opposed to an authorization
to use force should Iraq not disarm, is going to have consequences
under domestic law, but it is also going to have consequences
under international law. And I think for those of us here
in Congress we have got to contemplate the fact that it is going to
have the effect of transferring power, conferring power to the President
and to the Attorney General and to the Pentagon that they
cannot otherwise exercise.

One of those powers is going to be the power to wiretap, notwithstanding
what we do in Congress, once there is a declaration of war, they are
automatically going to be able to wiretap.

Another concern would be what we would do to insurance contracts,
because once you have a declaration of war, you bring into
effect an exclusionary clause in the contracts that are out there. I
think also you have to consider the fact that we are moving away
from our joint objective here, which is to leverage Iraq to disarm,
to have a credible threat against that regime, the threat of use of
force. And instead we are abandoning that, if we go with a formal
declaration of war, we then take on these international and domestic
changes under our Constitution.

And I wanted to ask the author if he contemplated those
changes. Should we actually pass this initiative? What do we do
about them?

Mr. PAUL. Would the gentleman yield?

Yes, I certainly did. But that emphasizes and makes my point
how serious this is, because you are ignoring how serious war is.
And then we know that is what we are talking about here today.

No matter what you call it, we are talking about a resolution that
permits the President to wage war.

Mr. ROYCE. It permits the President to wage war, and the reason
we are going through this exercise is to present a credible threat
to the Iraqi regime so that they do disarm.

And you move us off of that strategy on a completely different
track, a completely different track with this particular amendment.

And that is why I oppose the amendment. I thank you.

Chairman HYDE. The question occurs on the amendment offered
by the gentleman from Texas. All those in favor, say aye.

Chairman Hyde quickly put Rep. Paul’s amendment to rest with NO dissenting votes – including Rep. Paul who votes against his own amendment.

The Chair quickly dispensed with the balance of the discord and on the afternoon of October 3rd, 2002, the Committee voted in favor of a resolution to send our armies, yet again, to spill blood on foreign soil against an enemy that has yet to attack us.

End of Act III, and curtain.

War: No fuss. No muss. 
And unfortunately, no Constitution.



The Right to Petition Lawsuit and to read and/or sign the War Powers Petition.

Transcript of the House International Relations Committee hearing. (In .pdf format)