Direct Violence

As everyone knows by now, President Trump bombed Iran over the weekend – a sovereign nation. Many of the voices on the internet and elsewhere are hailing this attack as a success and the bold actions of a strong leader. Many have also proclaimed this attack to be completely constitutional.

As an attorney, who has studied our U.S. Constitution, the writings of the Framers, with an emphasis on The Federalist Papers, our political history, and the scriptures my entire adult life, over the last 50 years, I have used those sources to prove that President Trump’s attacks were unconstitutional in numerous social media debates over the last several days. This article condenses those debates.

Most of those who are arguing that President Trump’s actions were legal just rely on vague references to Article II of the Constitution or they claim that President Trump was not engaging in war, because it was just a “military action.” Others have argued that his actions were authorized under the 1973 War Powers Resolution Act (WPR).

Without a doubt, there are no Article II powers that authorize the President to bomb Iran’s nuclear facilities. There is not a single word in that Article that grants such authority. It says absolutely nothing that can be read to empower the “Commander in Chief” to use the Armed Forces to bomb a sovereign nation to prevent perceived imminent threats.

Hamilton addressed this issue specifically in The Federalist Papers where he wrote that being designated as Commander-in-Chief in Article II “would amount to nothing more than the supreme command and direction of the military and naval forces . . . 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.”[1] In other words, Hamilton explained that the President’s authority in matters of war is not the same as a king “but in substance much inferior to it.”[2]

In his concluding statement on the matter, Hamilton drew the distinctions between the King of Great Britain and the President to prove that they were not the same – The President “would have a right to command the military and naval forces of the nation; the other, [i.e., the King] in addition to this right, possesses that of DECLARING war, and of RAISING and REGULATING fleets and armies by his own authority.”[3] The Framers did not want the President to be a king and so they placed the power of warmaking in the hands of Congress.

This topic was also addressed in the Declaration of Independence where Thomas Jefferson called out King George’s “usurpations” as nothing but “tyranny.” These acts of usurpation, he explained, included King George’s “transporting large Armies” at will “to compleat the works of death, desolation and tyranny.”[4] In other words, as Hamilton explained, the President cannot transport his armies on his own cognizance for the purposes of attacking another nation without a declaration of war from Congress.

This brings me to the second argument made in favor of Iran’s bombing as being nothing more than a “military action” rather than warmaking. Of course, this argument is wrong and is only used to mislead. For example, in The Federalist Papers, John Jay explained that acts of “war, for the most part, arise either from violation of treaties or from direct violence.”[5] Making war has nothing to do with words and labels. In the minds of the Framers, it was the action that mattered. Direct violence is an act of war. No one can seriously argue that the bombing of Iran was anything but direct violence executed against another sovereign nation. This fact is easily supported by our own history.

The last time Congress issued an official declaration of war was on December 8, 1941. This declaration was in response to Japan’s bombing of our military installations at Pearl Harbor. Everyone at the time knew and understood that the bombing was an act of war against us. Yet, for some reason, today, people believe that if our President does the exact same thing to another sovereign nation, it’s not an act of war. Yet, he bombed their nuclear installations just as Japan bomb us. Unfortunately, this kind of direct violence has been committed by basically every president since LBJ – both Democrats and Republicans included. Call it what you want, but bombing another nation is still direct violence, which the Framers called an act of war along with everybody else up until December 8, 1941.

As an aside, President Trump has just announced an end to the hostilities in Iran but in doing so, he claimed that it should be known as “THE 12 DAY WAR.”[6] This announcement clearly shows that even he understands that it was a war which affirms that it was a war conducted at the sole discretion of the President without an official Congressional declaration of war validating it as an unconstitutional war.

As far as WPR, the Tenth Amendment clearly explains that the Constitution is only a document that contains a specific list of powers granted to the national government by the people. In other words, if a power is not listed in the Constitution, then it doesn’t exist in the national government either. Under the Constitution[7], only Congress can declare war. No such power is given anywhere in the Constitution to the President. Therefore, he does not have it.

More importantly, the Constitution also does NOT give any power to Congress to delegate power to the President to wage war without a Congressional declaration of war. Yet, under the WPR, this is what Congress has tried to do. However, since the Constitution is the Supreme Law of the Land,[8] no act of Congress can contradict the Constitution and be valid. As such, the WPR is clearly unconstitutional because it violates the Constitution by ostensibly authorizing the President power to wage war with acts of direct violence without a Congressional declaration of war.

Besides, such a power would completely undermine the reason Congress was given the exclusive power to declare war – the Framers did not want the President to have and exercise the power of a king in this regard. Authorizing the President to wage war at will turns us back to the age of kings during the American Revolution, which our Forefathers fought and died to prevent from perpetuating itself here in the Americas.

The reason Presidents have been doing this sort of thing since LBJ is because everyone in D.C. plays by the unconstitutional rules of political party politics. This is why President Trump and others are attacking Congressman Thomas Massie for raising the issue of President Trump’s war not being authorized according to the Constitution. Congressman Massie is not following the party mandate, so his character must be destroyed, and he must be removed from office.

Imagine living in a time when someone who stands up for our U.S. Constitution is vilified, attacked, hated, and targeted for removal. The Framers wouldn’t be surprised though as they expected it to happen. Towards the close of the Constitutional Convention in Philadelphia, Benjamin Franklin said that “I agree to this Constitution . . . and I believe, farther, that it is likely to be well administered for a course of years, and can only end in despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic government, being incapable of any other.”[9]

According to Hamilton and Jefferson, what President Trump has done by bombing Iran without a Congressional declaration of war are the actions of a king. From what I can tell, it’s what everyone wants and, since kingly behavior can only lead to tyranny or despotism, it’s clearly fulfillment of Franklin’s prediction.

When a person’s loyalty is to the political party, it always supersedes fealty to the Constitution, which is where we now find ourselves as a nation. Thomas Jefferson warned that “In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”[10] Sadly, democracy has replaced our Constitutional Republic created by our U.S. Constitution, which is now driven by party politics, and in party politics, it means that one’s loyalty is always to the man and not to our U.S. Constitution.

Madame Publius

---

[1] Hamilton, The Federalist Papers, Ltr. 69, ¶8

[2] Id.

[3] Id. at ¶15.

[4] Jefferson, The U.S. Declaration of Independence

[5] Jay, The Federalist Papers, Ltr. 3, ¶6 (emphasis added)

[6] https://truthsocial.com/@realDonaldTrump/posts/114734934153569653

[7] U.S. CONST., Article I, §8, cl. 11

[8] U.S. CONST., Article VI, §2

[9] Benjamin Franklin, Speech in the Constitutional Convention, at the Conclusion of its Deliberations, Delivered September 17, 1787 (emphasis added)

[10] Extract from Thomas Jefferson’s Fair Copy of the Kentucky Resolutions of 1798