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Syria Strikes were Constitutional

Monday, April 16, 2018 8:09
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Chemical Warfare in Syria
was even used against children.

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

My friend and co-host on Constitution Radio, Dennis Jackson, has a saying.  “For God so Loved the World, he didn’t send a committee.”

That kind of sentiment is exactly why the Framers of the United States Constitution placed the concept of a separation of powers in the Constitution, as well as a bunch of authorities for the President that do not necessarily require congressional approval.

Don’t get me wrong, I don’t believe in an overly strong executive.  I recognize that, as Article I, Section 1 tells us, all legislative powers belong to Congress, so the President cannot legislate from the White House.  There are many things he can only do if legislation exists first regarding particular issues.  That’s why Executive Order 11030, signed by President Kennedy in 1962, requires that an executive order must contain a ‘citation of authority,’ saying what law it’s based on.  (Gregory Korte, “Obama issues ‘executive orders by another name’,” USA Today, December 16, 2014; https://www.usatoday.com/story/news/politics/2014/12/16/obama-presidential-memoranda-executive-orders/20191805/ [accessed February 9, 2018])

That said, National Security and the power to “wage war” belong to the President, and to carry out those duties, the President of the United States does not necessarily have to consult with Congress before carrying out those duties.

Seton Motley, who fancies himself a constitutionalist, posted on Facebook,

He then followed up the inaccurate proclamation with,

While I respect the opinions of my fellow Americans, and I am willing to listen to my fellow conservatives about their feelings regarding the unfortunate reality of war, I have real difficulty with their statements when they try to say something is constitutional, or unconstitutional, and do so without having a full understanding of the original intent of the document.

Seton Motley’s statement that attacking Syria was completely unconstitutional was, to use his words, titanicallly stupid.

Please understand, my argument is not about if the United States “should” have conducted airstrikes against Syria.  My argument is if the Trump administration “could” have conducted airstrikes against Syria.

Mr. Motley’s opinion about if Trump “should” have launched airstrikes against Syria largely runs in line with the Founding Fathers’ assertion (George Washington’s, in particular) warning against “foreign entanglements.”  The common belief among many of the Framers of the Constitution was that unless necessary to repel an attack, or if it is thought that the country is in eminent danger of attack, military operations should not be engaged.

During the John Adams presidency, when Britain and France were going at it, Vice President Thomas Jefferson desired that the United States get involved, or at least pick sides.  Adams disagreed, using the foreign entanglements argument as his defense.  From May to July of 1797 President John Adams appointed a peace mission to France in hopes to resolve the issue of American rights as a neutral maritime power during the Anglo-French war.  It was the first of two such peace missions.  While in the Spring of 1798 President John Adams declared a state of “quasi-war” with France, that ended in October of 1800 at the Convention of Mortefontaine, as did the Franco-American alliance of 1778.

Many people in today’s political dialogue, using the “foreign entanglements” argument, will tell you that the power to declare war, listed in Article I, Section 8 of the U.S. Constitution, belongs to Congress for that reason, and the President may only act as Commander in Chief of the U.S. Military with a congressional declaration of war, or if we are directly attacked, or it is believed we will eminently be attacked.

The nice thing about studying the original debates surrounding the Constitutional Convention in 1787, the subsequent State Ratifying Conventions, and other documents from that time period, is that one may act as a sleuth and get to the bottom of the argument to discover what the Founding Fathers really believed, and authorized.

According to Seton Motley,

In response, I asked, “Show me where in the Constitution it says that?”  I then added that the Constitution does not state what he claims, and I would prefer he does not claim the Constitution says something that it does not.

Seton Motley responded,

During my debate with Mr. Motley, I was in the middle of performing a number of tasks, including getting out the door for a Holocaust Remembrance event in Murrieta, California, so I was using the verbal function on my smart phone to debate with him.  When I said “That is false,” as I had earlier on a previous post, this time the auto-correct spelled it out to say “You are false.”  As you can see from the above Facebook post, Motley jumped all over my, from his point of view, bad grammar.

I responded, explaining that his attack, which basically said if my grammar is not perfect then my argument must not be valid, is a common liberal leftist tactic.  The fact is, after over and over asking him where in the Constitution it says what he was claiming it says, he still could not come up with an answer.

Notice, I didn’t attack his misspelling of the word “eminently” in an earlier post.

Then, he changed his argument.

He was trying to turn the tables on me.  Suddenly, since Mr. Motley realized the Constitution does not say what he claimed, he decided to argue that it doesn’t say what I claim it says, either, therefore, my argument must be invalid, and he wins.

False.

Here’s my argument in a nutshell. . .

Show me in the Constitution where it says that the president can only wage military operations with approval from Congress. If you study the Articles of Confederation you will recognize that the founding fathers believed there were two Powers regarding War, the power to declare war, and the power to wage war. While Congress has the power to declare war, the president as commander-in-chief does have the ability to wage war without Congressional approval. I am not necessarily saying that I approve of a president Waging War at will without any discussions with the people around him, or congress. In Article 2 it clearly states that he may seek advice from those around him. If Congress has a problem with his operations in Syria then they can defund it, that is the whole point of Congress having the power of the purse strings. Thomas Jefferson and James Madison during the Barbary pirate Wars waged war without a Congressional declaration of war, but then later the money was appropriated. Those were Undeclared Wars. Are you willing to tell me that Thomas Jefferson and James Madison did not understand the Constitution?

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Reply20h

Seton Motley The Constitution states that without Congress, the president may only act when America is attacked or threatened. 

Which is why until recently we didn’t behave is such a stupid manner as bombing ourselves into an irrelevant country’s civil war.

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Reply19h

Douglas V. Gibbs You are false, the Constitution does not state that without Congress the president may only act when America was attacked or threatened. Show me article and section in the Constitution that says that? You are referring to the War Powers Act of 1973 which changed the authorities of the president without amending the Constitution, that is an unlawful Act. Again, I’m not necessarily saying I want a president to be going around Waging War right and left, I do believe that George Washington was right when he warned against foreign entanglements. I am just stating that that from a constitutional point of view the move on Syria without a declaration from Congress is not unlawful. If you are going to State the Constitution says something please show me where it says that, otherwise don’t claim the Constitution says something that it does not.

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Reply19hEdited

Seton Motley Yes it does. 

And you aren’t “false.” You’re incorrect. 

Perhaps your inability to write and read properly explains your profound wrongness.

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Reply19h

Douglas V. Gibbs Seton Motley Constitution does not say that. Give me article and section to prove otherwise. I teach classes on the United States Constitution. I’m here to tell you it does not say that. you are wrong in what you are saying. Please do not spread false constitutional information. Once again, if you truly believe it is in there, give me the article and section in which that phrase is in the Constitution. Since it is not in the Constitution you will be unable to do so. As for my choice of words, if you’re trying to state that I don’t know what I’m talking about because I miss verbalized a particular word then that makes you no different than liberals because that’s what they do. Once again, the burden of proof is in your court, tell me what section and article in the United States Constitution that it says that the president cannot wage war without Congressional approval unless we are attacked or it is a direct response to an eminent attack. Your move.

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Reply19h

Seton Motley Your students should ask for their money back.

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Reply19h

Seton Motley You miss the fundamental tenet of the Constitution. 

The federal government must be expressly empowered to do something. Or it can’t do it. 

Where in the Constitution is the president without Congressional approval expressly empowered to insert itself in the middle of irrelevant nations’ civil wars?

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Reply19h

Douglas V. Gibbs Seton Motley I don’t miss the fundamental tenet, I understand what it is. But you also have to understand the history behind the language. If you read Madison’s notes on the US Constitution you will understand that as commander-in-chief the president has the ability to wage war as necessary. In Article 2 Section 2 it indicates that the president is commander-in-chief over the US military which is always in service of the United States, and of the militias when they are called into service of the United States of America by Congress, which is detailed also in Article 1 Section 8. Once again you have to go back to the definitions of the time. Not your current thinking of what you think it means. Go back to Madison’s notes, the Articles of Confederation, and the ratification conventions of the time, and you will determine based on what you read that there are two powers granted when it comes to war, the power to declare war and the power to wage war. They are separate Powers. So while Congress may declare war, which makes it an action that has been formally announced, the president is allowed to wage war without a declaration. Once again, the Barbary wars were Undeclared Wars, so are you telling me that Thomas Jefferson and James Madison did not understand the Constitution? As for the Articles and sections, which you seem not to be willing to look up, in Article 1 Section 8 it grants Congress the authority to declare war, and in Article 2 Section 2 it grants the power as commander-in-chief to the president of the United States. I offer the classes for free, by the way. And as for any criticisms of spelling or word usage or capitalization, I am using the verbal function on my phone to communicate with you because I am also acting as an advocate for the Constitution outside. Thank you for keyboard Warriors like yourself, every once in a while it might be a good idea to get some sun.

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Reply19h

Douglas V. Gibbs Seton Motley a textbook I have written regarding government and the US Constitution that is being picked up by a bunch of home school programs and a couple of private schools will be available for sale in a couple months, I would be glad to send you a copy so that you can learn the Constitution better.

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Reply18h

Seton Motley You’re wrong. 

And I don’t have a birdcage to line – so you can keep the book.

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Reply18h

Seton Motley If you asked any Founding Father “should we militarily intervene in an irrelevant country on the other side of the planet’s civil war?” – they’d laugh you out of the room.

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Reply18h

Douglas V. Gibbs Seton Motley One last thing. There is nothing I hate more than conservatives activating a circular firing squad. I am not trying to go to war with you. It’s just that the Constitution is very specific, if we understand the language, and when people begin spreading information that is not true, it really chaps my a$$. That’s why my first book addressed the myths about the Constitution . . . and the difference between waging war and declaring war is one of those myths I address. Ought the President of the United States consult Congress before taking military action? Sometimes. As a friend says, “For God so loved the world he didn’t send a committee.” The ability to wage war was given to the President so that if necessary, the Commander in Chief may wage war as he sees fit. However, there are no limiting factors listed with that authority. He may wage war as necessary. That said, there are checks against abuse of that power, which includes defunding such operations, and impeachment. That all said, technically, the move against Syria was not unconstitutional. The President of the United States is Commander in Chief over the United States Military, which means, based on original intent, he may utilize those forces as he sees fit. Declaration of War simply puts out there a formal declaration that a state of war exists, which carries with it certain legal protections that are not in place if the President wages war without a declaration. That all said, on August 17, 1787 in the Constitutional Convention the word “make” was removed and replaced with “declare” because the delegates were uneasy giving Congress that authority, and felt it was best to leave “making” war with the President. Mr. Sharman argued that there should be language only allowing the President to “repel attacks,” so that he could not “commence” war. George Mason also voiced his own uneasiness of giving the power of making war to the President. In the end, it was decided to leave any language out of the Constitution limiting the President’s ability to make war so that he may make decisions quickly in any situation where war may be warranted. Thomas Jefferson wrote in November of 1793 (Works 1:325-30) a great deal on the subject, recognizing the importance of Congress having the power to declare war, but that there would be times the President would need to use his ability to make war . . . and that sometimes to defend, one must be on the offense. In a letter from James Madison to Thomas Jefferson, April 2, 1798, recognized that the executive branch held all of the powers to make war, but desired that such a power must be closely monitored. “The constitution supposes, what the History of all Govts demonstrates, that the Ex[ecutive] is the branch of power most interested in war, and most prone to it.” He then explains how the Congress is a check in place, in case those powers are abused. Alexander Hamilton, the leftist of the bunch, spewed your position. In fact, on December 17, 1801 he wrote, “it belongs to Congress only, to go to war. But when a foreign nations declares, or openly and avowedly makes war upon the United States, they are then by the very face, already at war, and any declaration on the part of Congress is nugatory: it is at least unnecessary.” In a letter by “A Georgian” on November 15, 1787 it is recognized in his letter that “it is his right” to wage war as Commander in Chief, and then the writer asks what the consequences and protections are in case the President abuses that power. In the North Carolina ratifying convention, when, on July 28, 1788 the question of Commander in Chief was brought up, it was explained, “In almost every country, the executive has the command of the military forces. From the nature of the thing, the command of armies ought to be delegated to one person only. The secrecy, despatch, and decision, which are necessary in military operations, can only be expected from one person. The President, therefore, is to command the military forces of the United States, and this power I think a proper one; at the same time it will be found to be sufficiently guarded.” What he meant by “guarded” was the provision that if military conflict expands into a major war, Congress alone may declare that war. The House of

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Douglas V. Gibbs Representatives June 22, 1797 also explains that when it comes to the Navy, the President has the authority to use the Navy as necessary. “Why should this power be limited” it was asked by a Mr. Sewall.

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Douglas V. Gibbs Sorry about the break. I am momentarily in my office, and wanted to give you a properly sourced response, and I accidentally hit the “return” key after “The House of. . .”

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Douglas V. Gibbs Again, I recognize the concern for executive abuse of that power, and I agree it is a very real possibility. But, if it is abused, Congress has tools to check against such abuses. However, technically, the President has constitutional authority to wage (or shall we say “make”) war without having to go through the lengthy process of herding cats in Congress to get the authority. Therefore, the strikes against Syria were not unconstitutional. By some opinions they may have not been wise, but they were not unconstitutional.

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Douglas V. Gibbs Seton Motley As for your comment about asking the founding fathers about if we “should” intervene in an irrelevant country on the other side of the planet, that’s not the issue, here. I suppose there would be a variety of responses, but most likely most of them, if they knew the full context, would be wary to take such action. But, the question on the table is not “should” the president have done what he did. The question is “could” the president constitutionally do what he did. Regardless of the “should,” the answer to “could” is “Yes.” If he shouldn’t have, then Congress may act to check his actions, or he may wind up only serving one term as a consequence of his actions. Again, I am not arguing about “foreign entanglements,” I am addressing the black letter of the rule of law as it is presented in the United States Constitution.

Seton Motley never responded, after that.

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Source: http://politicalpistachio.blogspot.com/2018/04/syria-strikes-were-constitutional.html

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