Senator Schumer’s Surrender

News that Senator Schumer will seek the repeal of the open-ended authorization for our forces to use military action in Iraq throws into sharp relief one of our favorite constitutional questions: Who gets to make peace? One might think that’s an easy query. The power to declare war, after all, is granted in Article I, Section 8 to Congress. So all one has to do is repeal the Iraq War authorization, as Mr. Schumer proposes, and voilà.Then again, too, the records of the convention at which the Constitution was framed at Philadelphia in 1787 suggest that the matter is not so simple. The Framers were certainly prepared to grant Congress the power to “declare war” and also to give the solons the second great war power, which is to grant letters of marque and reprisal. They were not, it turns out, prepared to grant to Congress the power to make or declare peace.We know this because it is recorded in the notes kept by James Madison. His record suggests that the Framers made short work of the power to declare war. It had originally been offered as the power to “make” war but was changed, at the suggestion of George Mason, to “declare” war. That formulation sailed through. Charles Pinckney then moved to strike out the whole clause, but that got laid aside.Then another South Carolinian, Pierce Butler, moved, as Madison put it, “to give the Legislature power of peace, as they were to have that of war.” What Butler was thinking we have no idea. Maybe he’d eaten a bad oyster or something at lunch. He was, in any event, seconded by Elbridge Gerry of Massachusetts. The motion went nowhere, since it seemed to suggest that as few as, at the time, eight senators could “give up part of the U. States.” In other words, the Framers grasped that making peace was more weighty — and dangerous — a matter than making war, and it was in the making of peace, more so than war, that America could be betrayed or its cause could be lost. Our own belief is that the Framers foresaw — we’re speaking figuratively here — what we’ve since learned in Vietnam, Iraq, and Afghanistan, among other places.In those wars, Congress — or, not to put too fine a point on it, the Democratic Party — proved to be summer soldiers and agitated, and eventually voted, to quit the fight, offering, in Senator Kerry’s case in respect of Iraq, that he’d voted to resupply our troops before he voted against it. Now Senator Schumer wants to completely deauthorize the use of force in Iraq — denying it not only to President Biden but any who follow him.Here’s how Mr. Schumer puts it on Twitter: “Each year we keep this authorization to use military force on the books is another chance for future presidents to abuse or misuse it[.] War powers belong in Congress’s hands — that implies we have responsibility to prevent future presidents hijacking this to bumble us into a new war.” Pipes up Senator Kaine, embracing President Trump: “It’s time to end endless wars.”Mr. Schumer’s motion, of course, isn’t binding on our enemies, neither those in Iran, say, nor ISIS, say, nor any other enemies lurking in Iraq. So he wants to prevent future presidents from responding to future attacks by our enemies in the Iraqi theater. His crippling of presidents does not make or declare peace, and he couldn’t, even if he wanted to. That’s because of what happened when the Framers put the matter to a vote.The motion was to insert after the power to “declare war” the two words “and peace.” Here is how Madison recorded the vote: “On the motion for adding ‘and peace’ after ‘war’ N. H. no. Mas. no. Ct. no. Pa. no. Del. no. Md. no. Va. no. N. C. no S. C. no. Geo. no.” New York’s vote, if any, wasn’t recorded. The vote by the Framers means that the only parties to the conflict in Iraq that can “declare peace” are our enemies. Good luck with them, Mr. Schumer.

Senator Schumer’s Surrender

Senator Schumer’s Surrender

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