The Heritage Guide to the Constitution: Essay Nos. 51–75

To continue my preview of The Heritage Guide to the Constitution, which will ship on October 14, here are the authors of essays 51–75.

• Essay No. 51: The Postal Clause —Robert G. Natelson
• Essay No. 52: The Copyright And Patent Clause —Adam Mossoff
• Essay No. 53: The Inferior Courts Clause —Judge David R. Stras & Andy Hessick
• Essay No. 54: The Piracies And Felonies Clause —Eugene Kontorovich
• Essay No. 55: The Offenses Against The Law Of Nations Clause —Eugene Kontorovich
• Essay No. 56: The Declare War Clause —John C. Yoo
• Essay No. 57: The Federal Marque And Reprisal Clause —John C. Yoo
• Essay No. 58: The Captures Clause —John C. Yoo
• Essay No. 59: The Armies Clause —Judge Gregory E. Maggs & Robert Leider
• Essay No. 60: The Navy Clause —Judge Gregory E. Maggs & Robert Leider
• Essay No. 61: The Military Regulations Clause —Judge Gregory E. Maggs & Robert Leider
• Essay No. 62: The Calling Forth The Militia Clause —Judge Gregory E. Maggs & Robert Leider
• Essay No. 63: The Militia Organization Clause —Robert Leider & Judge Gregory E. Maggs
• Essay No. 64: The Federal District Clause —Lee A. Casey
• Essay No. 65: The Federal Enclave Clause —Lee A. Casey
• Essay No. 66: The Necessary And Proper Clause —Gary S. Lawson
• Essay No. 67: The Migration Or Importation Clause —Judge Patrick J. Bumatay
• Essay No. 68: The Habeas Corpus Clause —Taylor Meehan
• Essay No. 69: The Federal Bill Of Attainder Clause —Matthew Steilen
• Essay No. 70: The Federal Ex Post Facto Clause —Evan C. Zoldan
• Essay No. 71: The Direct Taxes Clause —Andy Grewal
• Essay No. 72: The Export Taxation Clause —Chief Judge Matthew H. Solomson, Athanasius Sirilla, & Jacob B. Chefitz
• Essay No. 73: The Port Preference Clause —Nelson Lund
• Essay No. 74: The Appropriations Clause —Thomas G. Hungar & Michael D. Bopp
• Essay No. 75: The Federal Title Of Nobility Clause —Allyson N. Ho, Elizabeth A. Kiernan, & Michael A. Zarian

Comments

[Michael D]

I am curious what John Yoo writes about the use of military force by the U.S. at any given time somewhere on the globe.

One issue is that because war has not been declared and the U.S. operates under a series of open ended use of force resolutions, there is little to no oversight by the public and very little disclosure by the government due to classification, which is a whole other discussion.

But as to the war making and use of force, people seem to accept it without much thought. I do not think any of the Founders would be comfortable with the application of military force to the degree it has occurred, especially after WWII.

In fact, we can go back to several of the leading voices of the era who spoke against the existence of standing armies as a matter of principle and fearing potential tyranny.

But history does demonstrate that the military may not be a threat to civilian rule, but instead is a force that has its own policy agenda which President Eisenhower warned against as he was leaving office. It is impossible to say his warning has not come to fruition.

What then are the American people to do to reign in the constant uses of force? My suggestion is to amend the Constitution, thusly:

—The Congress shall have power to declare war, provided two-thirds of each House of Congress approves, and every declaration of war shall expire one year thereafter unless two-thirds of each House of Congress shall authorize an additional year, each year thereafter. Congress shall have no power to authorize any use of military force by any bill, order, resolution or vote other than a declaration of war, unless actually invaded, or in such imminent danger as will not admit of delay.

This proposed amendment restores constitutional discipline and moral seriousness to the gravest act a republic can undertake: war. Under this amendment, Congress may declare war only with a two-thirds vote in both Houses. Every such declaration expires automatically after one year unless renewed annually by the same supermajority. No other mechanism, no resolution, authorization, or executive order, may substitute for a formal declaration of war, except in cases of actual invasion or immediate danger.

This amendment reaffirms the original constitutional design. The Framers did not trust the executive branch to unilaterally initiate war. Nor did they contemplate that Congress would sidestep its duties through vague, open-ended resolutions. As James Madison wrote, “The executive is the branch of power most interested in war and most prone to it. It is accordingly with studied care vested in the legislature.”

Moreover, this amendment helps dismantle the war-making incentives of the military-industrial complex. When war becomes harder to authorize, perpetual conflict becomes harder to sustain. Defense spending, military deployments, and global entanglements can no longer expand unchecked behind rhetorical justifications like “police actions” or “security operations.”