An article posted yesterday on the website Responsible Statecraft states “According to a survey by the Chicago Council on Global Affairs, only 41% of Americans support the idea of U.S. troops defending Israel, even if its neighbors attacked it.”
If that statement were made in a U.S. District Court, one of the federal attorneys would undoubtedly stand up and object by declaring, “Irrelevant and immaterial, your honor!” There is no doubt that the presiding judge would sustain the objection. It doesn’t matter one iota what the American people think about whether the nation should go to war. The determiner of that issue is the national-security establishment — namely, the Pentagon, the CIA, and the NSA. When it comes to war and foreign interventions, they are the ones in charge.
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Of course, it wasn’t meant to be that way when the nation was founded. The last thing the Framers and the American people wanted was a governmental system in which either the president or the military made the decision on whether the nation was going to war. That’s why they included the declaration-of-war provision in the Constitution.
The declaration-of war provision states that it is Congress — i.e., the elected representatives of the people within the Senate and the House of Representatives — that wields the power of deciding whether the nation will go to war. Thus, while the Constitution vested the power to wage war within the executive branch, it vested the power to declare war within the legislative branch — that is, within Congress. Without a congressional declaration of war, it is, therefore, illegal under our form of government for the president or the military to wage war.
The Constitution is supposed to be the highest law of the land. It is supposed to control the actions of federal officials. Thus, just as they expect us to obey their laws, no matter how much we might disagree with them (drug laws come to mind), they are expected to obey our law of the Constitution.
The Constitution brought into existence a totally different type of governmental system than that under which we live today. It brought into existence what is called a limited-government republic. It was a type of governmental system in which the government was not vested with
“inherent” powers. Its powers were limited to the powers enumerated in the Constitution.
For more than a century, there was a relatively small, basic army, which fell within the executive branch. As part of the federal government, it was subject to all the restraints and constraints of the Constitution, including the declaration-of-war provision. That’s why presidents had to seek and secure congressional declarations of war for the Mexican War, the Spanish-American War, World War I, and World War II.
In the late 1940s, however, the federal government underwent the most revolutionary transformation in American history. It was converted from a limited-government republic to what is called a national-security state.
The distinguishing characteristic of this new form of governmental structure was its overwhelming power within the federal governmental system — power that was no longer constrained by the Constitution. Becoming sovereign and supreme within the federal government, the national-security state effectively nullified the Constitution. It was all done without even the semblance of a constitutional amendment.
Thus, it is no surprise that there has been any number of wars waged by the U.S. government since the conversion and that none of them have involved a congressional declaration of war. That’s because the national-security establishment, not the Congress, now wielded the power to decide whether the nation would go to war.
Today, people continue to hew to the quaint notion that the vast military-intelligence establishment still falls within the executive branch. Pure nonsense. Since the very beginning of the conversion, the other three branches — the executive, legislative, and judicial — understood that things had changed dramatically in America and that the national-security establishment had, as a practical matter, become a separate branch of government— and the most powerful branch, one that the other three branches would end up deferring to and supporting.
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Under the Constitution, it is the responsibility of the federal judiciary to enforce the Constitution against the other branches of the government. Yet, notice something important: The federal judiciary has never dared to enforce the declaration-of-war constraint against the national-security branch of the government. That’s because federal judges and the justices on the Supreme Court know that they are unable to enforce such a ruling given the overwhelming power of the military-intelligence establishment. For that matter, the same deference-to-authority mindset is exemplified by the federal judiciary’s refusal to enforce the due-process clause of the Fifth Amendment when it comes to assassinations or the infliction of cruel and unusual punishments by the national-security establishment.
Much of the time, the president and the Pentagon/CIA/NSA are on the same page with respect to foreign affairs. But that too is irrelevant and immaterial because it is ultimately the national-security branch that makes the final decision. In that case, the president is much like the Supreme Court and Congress — he comes on board with respect to whatever the Pentagon, the CIA, and the NSA decide in order to create the false appearance that he is in charge.
Thus, as the U.S. national-security establishment gears up to come to the military defense of Israel, it is important that Americans, many of whom are convinced that they live under the same governmental system as our American ancestors, confront reality: We live under a governmental system in which our nation and our very lives, liberty, and well-being are subject to the decisions of the Pentagon, the CIA, and the NSA. That’s not what the Framers and the American people intended when the Constitution called the federal government into existence.
Reprinted with permission from The Future of Freedom Foundation.
