Supreme Court Justice Hugo Black wrote in New York Times v. United States (1971) ("Pentagon Papers" case):
"[P]aramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do."
But is The Washington Post currently discharging its responsibility of fearless and balanced reporting on matters of war and peace, or is it a megaphone of the multi-trillion dollar military-industrial-counterterrorism complex that has engulfed the United States in permanent global warfare? Think about it: approximately 20 percent of our current population has never lived a single day with the United States at peace, and probably never will.
As a concession to the shortness of life, I have selected for analysis a representative paragraph in a news article by Washington Post reporter Karan DeYoung published on July 17, 2016 at A14 ( "Would declaring 'war' on ISIS make victory more certain--or would it not matter?"). The paragraph postulates or insinuates that national security experts virtually universally agree that the President is constitutionally crowned with Article II authority to wage war on his own; and, that detractors who assert that presidential wars are unconstitutional because Congress under Article I, section 8, clause 11 is exclusively entrusted with decisions to cross the Rubicon from a state of peace to a state of war are fringe leftists with fringe arguments. Ms. DeYoung writes:
"There is little argument, outside certain legal and left-leaning political circles, that Obama has the power to do everything he is now doing and more [against ISIS without any congressional declaration of war or authorization to use military force]. Although Obama and his top aides once ridiculed Bush's claim of authority to wage war on his own as commander in chief of the armed forces under Article II of the Constitution, they now regularly invoke it."
Approximately 20 percent of our current population has never lived a single day with the United States at peace, and probably never will.
The Washington Post is an honorable newspaper and its reporters are honorable reporters. It is thus painful to submit that the aforementioned paragraph more befits George Orwell's 1984 than an independent newspaper.
President George Washington, who presided over the constitutional convention and whose politics were not "left-leaning," authoritatively repudiated the claim of presidential power to wage war without congressional authorization. He elaborated without ambiguity: "The Constitution vests the power of declaring war with Congress. Therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure." Every delegate present at the creation of the Constitution agreed.
Alexander Hamilton, who was a delegate to the constitutional convention, echoed President Washington in Federalist 69: "The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature."
James Madison, renowned as the father of the Constitution and Bill of Rights, secretary of state, and twice President of the United States, explained in a letter to Thomas Jefferson: ""The constitution supposes, what the History of all Govts demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl."
President Thomas Jefferson insisted on authorization from Congress before offensive use of the military in the Barbary Wars. He explained that he was "unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense"; Congress alone could authorize "measures of offense also." Jefferson thus informed Congress: "I communicate [to you] all material information on this subject, that in the exercise of this important function confided by the Constitution to the Legislature exclusively their judgment may form itself on a knowledge and consideration of every circumstance of weight."
James Wilson, delegate to the constitutional convention and future Justice of the United States Supreme Court, emphasized to the Pennsylvania ratification convention: "This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our interest can draw us into war."
United States Chief Justice John Marshall, who served in the Virginia ratification convention, in Congress, and as secretary of state, lectured in Talbot v. Seeman (1801): "The whole powers of war being, by the constitution of the United States, vested in Congress, the acts of that body alone [in contrast to presidential orders] can be resorted to as guides to this inquiry."
Abraham Lincoln also rejected presidential power to wage war on his own: "The provision of the Constitution giving the war making power to Congress was dictated, as I understand it, by the following reasons: kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us."
Massachusetts Republican Senator Henry Cabot Lodge spearheaded defeat of the League of Nations Treaty because it would have empowered the president to wage war in defense of other nations without congressional authorization.
Advocates for the view that the Constitution empowers the President to wage war on his own are airbrushing Article I out of the Constitution.
John Bassett Moore, whose voice was gospel on international law, and who occupied the first professorship of international law at Columbia University, instructed, "There can hardly be room for doubt that the framers of the constitution, when they vested in Congress the power to declare war, never imagined that they were leaving it to the executive to use the military and naval forces of the United States all over the world for the purpose of actually coercing other nations, occupying their territory, and killing their soldiers and citizens, all according to his own notions of the fitness of things, as long as he refrained from calling his action war or persisted in calling it peace."
In sum, advocates for the view that the Constitution empowers the President to wage war on his own are airbrushing Article I, section 8, clause 11 out of the constitution as understood by its authors. Could Donald Trump similarly airbrush out of the Bill of Rights the First Amendment's protection of freedom of the press to destroy The Washington Post? What provisions of the Constitution are off limits to airbrushing by sheer assertion? Is the Constitution today a mere homonym of the authentic document? It sounds the same and is spelled the same but means something different?
Repetition does not make unconstitutional actions constitutional. If that were true, we would still be living under separate-but- equal and women would still be second-class citizens or worse under the Fifth and Fourteenth Amendments.
Presidential war power advocates often argue that dramatic changes in weapons and other technologies since the 1789 ratification of the Constitution have placed an unforeseen premium on speed and decisiveness in national security matters that make the Constitution's allocation of war powers to Congress obsolete. But the Constitution's architects were not dolts. They knew that the science of government is the science of experiment. They knew that the future could only be dimly perceived, and thus provided for constitutional amendments in Article V. The very first Congress proposed twelve amendments and ten were ratified. Slavery was abolished by the Thirteenth Amendment. Women were granted the suffrage by the Nineteenth Amendment.
Repetition does not make unconstitutional actions constitutional.
There has never been an amendment, however, that alters the Constitution's exclusive entrustment to Congress of the responsibility of deciding on war, which legalizes what is customarily first degree murder. The Article V amendment process remains open to proponents of presidential authority to wage war without a prior congressional declaration.
Under the constitutional view that The Washington Post represents is as indisputable as the force of gravity and unworthy of debate, the President could wage war against China on his own over the South China Sea based on secret evidence no more reliable than the "slam dunk" intelligence that concluded Saddam Hussein possessed weapons of mass destruction that justified of our 2003 multi-trillion dollar invasion of Iraq. Such a war against China could involve nuclear weapons, inflict tens of millions of civilian casualties, and bring the world to an end with a nuclear winter. China is not ISIS. The Chinese armed forces bested General Douglas MacArthur in the Korean War.
In sum, do you believe The Washington Post is providing fair and balanced reporting and editorializing on the constitutionality of presidential wars? Or is it providing a counter-historical, counter-constitutional argument as valuable as another aircraft carrier to the Pentagon?