- Welcome back to "The Constitution Line by Line."
I'm Senator Mike Lee.
(soft music)
Today we'll be talking about Article 1, Section 8,
by looking specifically at clauses 11 through 16
which addressed the military powers granted to Congress.
The text gives Congress the power, quote,
"To declare war, grant letters of marque and reprisal,
and make rules concerning captures on land and water;
to raise and support armies, but no appropriation of money
to that use shall be for a longer term than two years'
to provide and maintain a navy;
to make rules for the government and regulation
of the land and naval Forces;
to provide for calling forth the militia
to execute the laws of the union,
suppress insurrections and repel invasions;
to provide for organizing, arming,
and disciplining the militia,
and for governing such part of them
as may be employed in the service of the United States,
reserving to the states, respectively,
the appointment of the officers
and the authority of training the militia
according to the discipline prescribed by Congress.
When drafting the constitution,
the framers felt it was important that the power to wage war
not rest in the hands of a single individual,
like a king as under the English system.
The consequences of warfare were simply too great
to be left up to the whims of a monarch.
And so it was decided that a democratic process
must, at least in part, govern the waging of war.
(soft music)
In an early draft of this section,
clause 11 gave Congress the power to make war
rather than simply declare it.
This was changed as it was thought that the consent
of both the president and the two houses of Congress
should be necessary before going to war,
with Congress issuing the declaration
and the president serving as commander-in-chief
of the armed forces.
(soft music)
There are a couple of terms in these clauses
that we may not immediately understand today,
or terms that have at least lost their prominence
and fallen out of common usage over time.
For example, the reference to letters of marque and reprisal
referred to a power of Congress to commission privateers,
that is private citizens charged with fighting
decentralized threats to the republic,
like piracy on the high seas,
and piracy on the high seas would be fought essentially
with individuals commissioned to engage
in piracy on the high seas in the name of the United States.
Although this power remains
in the text of the Constitution,
letters of marque and reprisal
haven't been issued for a long time,
and some have even argued that they were prohibited
by a Paris declaration in 1856
to which the United States signed on as a party.
Still, that doesn't mean that you can read out
a power of Congress simply by international agreement.
One could argue, I think persuasively,
that unless or until the Constitution is amended,
Congress has that power, regardless of what some might read
into an international agreement.
In any event, there has been talk of reviving
the power to deal with a variety of modern threats.
In the wake of the September 11th attacks in 2001,
the possibility of using letters of marque and reprisal
to combat the threat of radical Islamic terrorism
was discussed, although it was ultimately rejected.
And then again in 2009, representative Ron Paul
introduced legislation to issue
letters of marque and reprisal
against the then current scourge of Somalian piracy.
This proposal was there again rejected.
And most recently it's been suggested
that letters of marque could be employed
to fight online piracy or cyber attacks.
As of yet, no move has been taken
to act on these suggestions,
but the power remains in the Constitution.
(soft music)
In clauses 15 and 16, the Constitution grants Congress
the power to organize, arm, and call forth the militia
for variety of purposes.
At the time of the founding,
the militia referred to soldiers maintained
by the individual states which could be brought
under federal authority as needed.
Under the National Defense Act of 1916,
the term "militia" was redefined to mean all able-bodied men
between the ages of 18 and 45
who were citizens of the United States.
To that extent, some have argued that the concept
of state militias has become archaic.
Although concept of state militia
still lives on in national guards.
National guards are run by the states
with their officers being selected by the states,
typically the governor, and the national guard
of each state can be mobilized into federal action
when directed to do so under these provisions
by the president of the United States.
(soft music)
The fact that the ability to declare war
is vested in the Congress and not the presidency
has led to some controversies
about what constitutes a legitimate use of military force.
To date, only five wars have been officially
declared by Congress.
The War of 1812, the Mexican-American War,
the Spanish-American War,
and the First and Second World Wars.
During the Civil War, the Supreme Court
upheld President Lincoln's blockade
of the southern ports without Congressional approval,
arguing that the country was already
in a state of war and that no declaration was needed.
In other words, the court decided
that if the nation is under attack,
then the president may respond
without the express authorization of Congress.
Beginning with the Korean War,
every military conflict involving the United States
has lacked a Congressional declaration of war as such.
In most cases, Congress instead has passed
a bill authorizing the use of military force
for a specific time and circumstance.
Occasionally this practice has been challenged
as somehow unconstitutional, and as amounting
to an abuse of executive authority.
For example, in Dellums versus Bush,
54 members of Congress sued then President
George Herbert Walker Bush
seeking to prevent his military engagement in Iraq
without a Congressional declaration of war.
The District Court for the District of Columbia, however,
ruled in favor of President Bush,
and the Supreme Court, always reluctant to get involved
in political power struggles, has declined
to issue a ruling on the war powers clause.
Thank you for joining me for this episode
of "The Constitution Line by Line."
In the next episode, we'll finish talking about
Article One, Section Eight,
with the discussion of the necessary and proper clause.
Remember to subscribe to the channel,
and click the bell for notifications.
I'll see you here again next time.
(gentle music)
(soft music)