As everyone knows, the U.S. government has not declared war against another country since World War II. Everyone also knows that the Constitution prohibits the federal government from waging war without a declaration of war from Congress. Yet, everyone also knows that since World War II, the U.S. government has waged undeclared wars against many nation-states, such as North Korea, North Vietnam, Cuba, Grenada, Nicaragua, Iraq, Afghanistan, Syria, and others.
Everyone also knows that under the Constitution, it is the responsibility of the Supreme Court and the federal judiciary to enforce the Constitution against the other branches of the federal government. Thus, it was the job of the Supreme Court to enjoin the U.S. government’s waging of all of those post-World War II wars unless and until Congress issued a congressional declaration of war against those nation-states.
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The question no one asks is: Why didn’t the Supreme Court fulfill its responsibility by declaring those wars unconstitutional and enjoining the executive branch from waging them? Why did it instead abrogate its constitutional responsibility by letting those undeclared wars proceed?
The answer to this hands-off phenomenon is actually a pretty simple one: the national-security state and the omnipotent role that the Pentagon, the CIA, and the NSA came to play in America’s federal governmental structure.
After World War II, the federal government was converted from a limited-government republic, which was our founding governmental system, to a national-security state, which is quite similar to a totalitarian-like regime in terms of sheer power.
Under the founding system of a republic, the government’s powers were extremely limited. The relatively small military fell under the control and auspices of the executive branch, whose powers were limited by the Constitution, which was enforced by the Supreme Court.
That changed completely with the conversion to a national-security state. The military-intelligence establishment immediately became, de facto, an independent, all-powerful section of the federal government, wielding omnipotent, totalitarian-like powers, such as assassination, torture, indefinite detention, coups, invasions, foreign interventions, and wars of aggression.
The idea was that in order to win the “Cold War” against the communists, who were supposedly coming to get us, “we” needed to become like “them.” Since the Reds weren’t constrained by a constitution, it was said, they were going to end up defeating us. Given that “they” wielded omnipotent powers, “we” needed to wield omnipotent powers too.
Moreover, everyone understood that this segment of the federal government had the wherewithal to employ those omnipotent powers, given the vast, permanent, and ever-growing number of troops, tanks, planes, ships, and intelligence-gathering apparatuses. In terms of sheer power and force, everyone understood that the national-security branch of the government now ruled the roost within the federal governmental structure.
That’s why there has never been a declaration of war ever since the conversion. The Pentagon, the CIA, and the NSA don’t need a declaration of war because they don’t need a Constitution. They knew from the beginning that the national-security branch of the government was now in charge of running the federal government and that there was nothing that the other three branches, as a practical matter, could do about it.
Consider the declaration-of-war requirement under the Constitution. Let’s say that someone had brought a federal lawsuit at the inception of U.S. intervention into the Vietnam War. Let’s assume that the case reached the Supreme Court. Let’s say that the Supreme Court decided to uphold the Constitution and declared the war illegal for not having a congressional declaration of war. The Court, let’s assume, issued an injunction against the Pentagon ordering the Pentagon to bring all U.S. troops home.
As a practical matter, how would the Court enforce its judgment? It would send a team of deputy U.S. Marshals to the Pentagon, who would deliver a copy of the court’s judgment, including its injunction order, to the guard at the front door of the Pentagon. Operating on orders of the Joint Chiefs of Staff, the guard would simply tear up the document and order that team of U.S. Marshals to vacate the premises.
What then? As a practical matter, there is absolutely nothing the Court could do to enforce its judgment. Suppose it held the Joint Chiefs of Staff in contempt. What then? How would a team of deputy U.S. marshals take the JCS into custody? How would it break through a blocking force consisting of the 82nd Airborne Division and a team of CIA assassins?
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Thus, knowing that it could never enforce its judgment against this all-powerful section of the federal government, the Supreme Court decided early on that there was no point in committing a futile act. Doing so would simply have exposed what the conversion to a national-security state had done to our political system. Exercising prudence, the Court decided to defer to the national-security establishment and has done so every since.
The same holds true, of course, for Congress and the president. Woe to any member of Congress who decides to oppose the national-security establishment. He is immediately targeted for base closures and cancellations of federal funds in his district. His opponent in the next election and the mainstream press will label him an “ineffective” congressman. Moreover, Congress is now stacked with former members of the national-security establishment who remain loyal to their former employer. And woe to any president who bucks the national-security establishment; the last president to do that was John F. Kennedy, and everyone knows the outcome of that conflict.
The reason why the U.S. government has waged undeclared wars in direct violation of the Constitution since World War II is no mystery. It is simply a confirmation of what the conversion of the federal government to a national-security state did to our federal governmental structure and to our nation.
Reprinted with permission from The Future of Freedom Foundation.
