Why only Congress can prevent pointless wars

In 1932, Albert Einstein inquired of Sigmund Freud: 

“Is there any way of delivering mankind from the menace of war? It is common knowledge that, with the advance of modern science, this issue has come to mean a matter of life and death for civilization as we know it; nevertheless, for all the zeal displayed, every attempt at its solution has ended in a lamentable breakdown.” 

Freud replied: “Any effort to replace brute force by the might of an ideal is, under present conditions, doomed to fail. Our logic is at fault if we ignore the fact that right is founded on brute force and even today needs violence to maintain.” 

The Einstein-Freud exchange occurred on the heels of the Kellogg-Briand Pact of 1928 which renounced war “as an instrument of national policy.” In 1931, Japan, a party to the treaty, invaded Manchuria. Italy, also a treaty signatory, invaded Ethiopia in 1935.   

Kellogg-Briand proved as empty as Glendower’s idle boast in Shakespeare’s “King Henry IV, Part 1”:  

Glendower: “I can call spirits from the vasty deep.”  

Hotspur: “Why, so can I, or so can any man; But will they come when you do call for them?” 

War endures because the species craves and valorizes power for the sake of power. In all nations, the armored knight moves across the pages of romance and poetry eliciting the admiration of the crowd, the smiles of beauty, and the shouts of youth. The glamor of military glory closes the eye to the grisly offspring of war: destruction, death and human misery. War is not rational, but neither is the species. Recall the celebrated lines in Lord Tennyson’s “The Charge of the Light Brigade”: “Theirs not to reason why/ Theirs but to do and die.”   

The United States Constitution is the deus ex machina to the never-ending cycle of war. It entrusts the war power exclusively to Congress in the Declare War Clause, the branch of government with no incentive for adventurism. James Madison, father of the Constitution, amplified in “Helvidius” No. 4: 

“In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department … the trust and the temptation would be too great for any one man … War is in fact the true nurse of executive aggrandizement.” 

The Constitution’s authors correctly distrusted the president in international affairs. Alexander Hamilton amplified in “Federalist” 75 that treaties required ratification by two-thirds of the Senate because otherwise, presidents would betray the country like Benedict Arnold to advance their personal ambitions. The war power is superior to the treaty power, with a corresponding greater invitation to presidential abuse. Congress was made the sole steward of the power not because its members were more virtuous or patriotic than the presidents, but because they have no motive to race abroad in search of monsters to destroy. In wartime, Congress is a caboose and the president a locomotive. 

The Declare War Clause’s purpose has been verified by experience. Congress has declared war in but five conflicts over 230 years. On each occasion, Congress was convinced (sometimes by presidential deceit) that the peace had already been broken by foreign aggression: the War of 1812, the Mexican-American War, the Spanish-American War, World War I and World War II. Presidential actions also support its necessity. The Senate approved President Bill Clinton’s request for a declaration of war against Yugoslavia in 1999, but a Clinton-backed NATO began bombing without approval from the House. 

The Declare War Clause has become a dead letter at least since the 1950 Korean War, which President Harry Truman absurdly trivialized as a “police action.” Congress has unilaterally surrendered the war power to the White House. Chronic, pointless wars have ensued. Presidents instinctively inflate fleas into elephants. 

The fanciful domino theory — the notion that a communist country will try to take over non-communist countries surrounding it — was manufactured to justify the Vietnam War debacle. After the defeat, we became a semi-ally of Vietnam against Communist China. 

The international terrorism risk to Americans was magnified after 9/11 to justify permanent war and limitless presidential power to assassinate any person on the planet. In fact, an American has a greater probability of dying from a falling vending machine than in a terrorist attack. 

President Joe Biden has repeatedly threatened nuclear-armed China with war if it attacks Taiwan and nuclear-armed Russia with war if it invades a NATO member, including countries patently irrelevant to the safety of the United States. As Madison recognized, presidents are eager for war in hopes of earning at least a footnote in the long annals of history. 

Wars initiated by the United States that are not in self-defense to actual or imminent aggression against U.S. territory can be prevented. All that is necessary is to restore constitutional order. Extra measures could be to treat extraconstitutional presidential wars as impeachable high crimes and misdemeanors; terminate the tenure of any executive branch official immediately upon participation in an extraconstitutional presidential war and prohibit the expenditure of any funds to support the offensive use of the United States Armed Forces, except pursuant to a congressional declaration of war.   

For more than 70 years, members of Congress have been dishonoring their oaths of office by scampering away from their responsibility for war like a dog that returns to its kennel when danger appears. Only the threat of losing office will cause members to change.  

The buck stops with American voters.    

Bruce Fein was associate deputy attorney general under President Reagan and is the author of “American Empire Before The Fall and Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy.”