Friday, January 8, 2010

Constitutional Solutions to Defeating Al-Qaeda

The Constitution was drafted in 1787 and ratified in 1788 after New Hampshire became the 9th state sign off on our founding document. The Constitution is an amazing artifact created by some of the most well respected and wise statesmen our country has ever known. After the first 10 Amendments (Bill of Rights) were approved in 1791, the Constitution has only been amended 17 times.

The document, which is the foundation of our Republic, is NOT a "living and breathing" document which should adapt and change with the passing of time like many academic-progressive-intellectuals claim that it to be. The Constitution is the "supreme law of the land.", as identified in Article VI. If there are changes that must be made to it, a process exists for amending it (see Article V). The founders knew that Constitution was not perfect and would need changes from time to time. But, it in order to do so would require super majorities so as to protect the majority as well as the silent minority. This sacred document was to be our guide for keeping the federal government small constrained with very specific chains, constraints, checks and balances to safeguard liberty and freedom of the American people. James Madison wrote in Federalist Papers 45, "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."

As previously mentioned, the Constitution with unwavering clarity the Federal Government had few and enumerated powers. Having studied and even experienced history of fact that centralized and national governments always lust for growing bigger and attaining more power, the principles described and explicitly called out in the Constitution were essential for maximizing liberty and freedom for American citizens. With these ideas in mind, Article I Section 8 of the Constitution is so important to conceptualize, understand, and have our elected officials follow without exception. Every power that Congress "can" perform is in Article I Section 8. Anything NOT in Article I Section 8, is NOT permitted and must reside to the individual state legislatures or left to the people to decide for themselves.

One of the few and enumerated powers found in Article I Section 8 is: "To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." Yes, the Congress has the power to declare war and not the President of the United States. We have not officially declared war since WWII, yet we have been in numerous military conflicts since then. Many people do not realize that we never declared war on Vietnam, Korea, Kosovo, Somalia, Iraq, or Afghanistan. Based on this information, the facts are clear our nation has continuously violated the enumerated powers of Section 8. This fact poses a significant issue to millions of Americans who would like us to return Congress's few and enumerated powers of our elected leaders that we have abandoned for too long.

For those who believe that the war powers of Congress are too far constrained or outdated to deal with radical elements of terrorism that we face today, the enumerated power to "grant letters of marque and reprisal" has rarely been used or even mentioned as a tool that Congress can or should use. Why is that? This tool has been cited by law scholar, Jules Lobel, that the founding fathers had the express intuition the tools were needed for fighting unconventional warfare with external foreign entities without leveraging the full force of the U.S. Treasury and military might of its armed forces, since doing so by the Executive branch would be illegal without the consent of Congress [1]. Thus, the power to issue marques was left to the Legislative branch, in addition for only Congress to declare war.

By issuing letters of marque and reprisal, the Congress could issue an official warrant, bounty, or commission from a foreign government to individual private citizens (Americans) the ability to seize, search, or destroy property or assets held by perpetrators of a certain foreign party which had committed certain acts against the United States or any private entity therein (citizens, corporations, etc). In affect, the letters would grant private individual the ability to be bounty hunters at the behest of the Congress. To me, the letters of marque would be an innovative, efficient, and swift method for empowering private citizens to seek out and find those who would do us harm under explicit and well defined rules to seek out Al-Qaeda cells and terrorists around the world. Since we are not at war with a single nation, conventional warfare will not preserve our freedom and liberty of this country.

Our military has been completely stretched thin over the past decade and has completely overstepped the purpose of what national defense was intended to be in complete contrast to the philosophy of founding fathers Thomas Jefferson or George Washington. We cannot afford (fiscally) deploying hundreds of thousands of troops throughout the world to police the globe. We now have troops stationed in close to 130 countries. It is time for us to have a fresh approach to looking out for our national defense while at the same time not bankrupting our precious and fragile economy. When we must use our precious blood and treasure, it should be employed Constitutionally and with finite goals in mind set forth by the Congress and led by the Commander in Chief in which capacity the Executive branch must lead. While calling on the national defense is a justifiable and enumerated power of the Legislative branch (under the power to declare war), we must not treat the Constitution as a "worthless piece of paper", like George Bush declared back in December 2005 according Doug Thompson. The Constitution is anything but worthless. Rather, it is actually priceless.

1. Jules Lobel, “‘Little Wars’ and the Constitution,” in “War and Responsibility: A Symposium on Congress, The President, and the Authority to Initiate Hostilities,” 50 U. of Miami Law Rev. 61, 66 (October 1995).

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