Distributed Mind

An Amendment?

I was just considering the possibility of proposing an amendment to the Constitution along the lines of this:

The President shall not order engagement in any military combat without a prior declaration of war by Congress (in accordance with Article I, section 8).

Exception shall be made in the case of a defensive engagement when the territory of the United States is under direct and immediate threat and there is insufficient time to obtain such a declaration of war. In that case, a declaration of war shall be asked for as soon as possible after the beginning of hostilies, if not issued by Congress first.

Nothing in this amendment shall be interpreted as preventing the limited use of force by military units or craft stationed abroad or at sea to defend themselves from hostile actions. However, military units and craft shall not be delpoyed outside of a state of war in a such a way as could be reasonably interpreted as expected to incite attacks upon them or as threatening by anoter nation.

Furthermore, nothing in this amendment shall be interpreted as preventing the limited use of military force to defend civilians of any nationality when there is insufficient time to obtain permission from Congress for such an action. In such a case permission for such a deployment shall be asked for as soon as possible after the beginning of deployment, if not issued by Congress first.

I am not sure the last paragraph could not be improved, though I feel the rest of this proposed amendment seems fairly straightforward and reasonable. Of course, I am not a lawyer, so I am sure a professional could come up with something better than this. (And I invite anyone to try to do so.)

One weakness of such an amendment as worded would be that it still requires a declaration of war before defending an ally, which most of the time would be alright, but one could imagine circumstances where that would be inadequate. The danger of adding such a clause to allow action in such a case without a declaration of war is that not all allies are equal, and not all should be automatically protected (an ally might be intentionally provocative, for example). Furthermore, it raises the question, who decides who is an ally? I would not be absolutely opposed to such an addition to the amendment, though.

Such an amendment is neccesary in part because since World War II, the Constitution has been read as not requiring a declaration of war by Congress prior to miltary engagement. In fact, several important pieces of legislation have been written around this interpretation. Obviously, it could be suggested that the Constitution as written should be enforced. While this is not necessarily a bad idea, it has the disadvantage of (1) requiring someone to enforce it, while the only people who could even attempt to do so (namely Congress) currently don't even agree with the straightforward interpretation of Article I, section 8, and thus have no incentive to do so, and (2) it opens the door of potentially having to resort to a original intent for other cases where that might not be such a good idea (the Second Amendment and the Constitutional right to bear nuclear arms comes to mind...). While I have previously felt that simply enforcing the Constitution as written was the obvious right thing to do, it occurred to me this morning that this might be a pragmatically better approach. Such an amendment has the further advantage of reducing some ambiguity as to what circumstances military force might be used without a prior declaration of war.

One concern that occurs to me is that if such an amendment were to fail, it might provide further incentive to ignore the obvious intent of the Constitution on this matter. On the other hand, if such an amendment were to pass, now would not be a bad time to introduce it. I am not sure I would be optimistic about its chances though, even now.

(It also occurs to me that if I were bolder, I could suggest a further amendment that prevented any military action outside of immediate and direct defense of our nation's territory, regardless of declarations of war. I think such an amendment would have very little chance of passing. I'm not even entirely sure that such an amendement is a good idea, but then when I consider the history of United States aggression which was conducted with declarations of war, whether the ridiculous anti-democratic expanionist wars we have fought even with declarations of war (such as the Mexican-American War and the Spanish-American War) or just the ones of questionable wisdom (World War I might be the only war that really fits in that category, and even that classification could be arguable), it seems like it would not be such a bad idea. One of the ideas of a "liberal democracy" is that democracy is not enough to prevent the abuse of liberties without the proper laws to protect minorities, or in the case of war, non-citizens.)

posted at 06:05:21 on 02/13/07 by ben - Category: Politics

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