The Normalcy of American Wars,
By Andrew P. Napolitano
The war in Iran is unlawful and unconstitutional, but in post-World War II America, it is normal. Here is the backstory.
When President Donald Trump decided to begin bombing Iran last June, he did not state a coherent or lawful reason for doing so. His director of national intelligence and his own CIA had publicly told him that Iran did not possess a nuclear weapon and had ceased building one in 2005.
His secretary of state told him that Iran and Israel had threatened each other, but he could not articulate how Iran imminently threatened the United States. Yet, since Israel planned to attack Iran, he wanted the U.S. to help Israel do so. This was not a lawful request as the U.S. has no treaty with Israel and, under treaties to which the U.S. is a party, the legal bases for all offensive wars can only be treaty compliance or prevention of an imminent attack.
When Trump addressed the nation, his helter-skelter rationale argued for replacing Iran’s government, destroying its civilian-use enriched uranium, destroying its ability to build a bomb it wasn’t building, and neutralizing its offensive and defensive weaponry. None of these goals was lawful; nor was attacking a Tehran girls school. There was no mention of an imminent attack on the U.S. or the economic effect of war on the vital international oil super-highway, the Strait of Hormuz.
No one in Trump’s inner circle registered disagreement, except his vice president and his director of counterterrorism. They told him there was no legal or constitutional basis for his war.
They were correct, but Trump had history on his side.
For much of American history, presidents have steadily accumulated the power to wage war while Congress has gradually surrendered the constitutional authority that the Framers explicitly entrusted to it. This transformation has weakened constitutional checks and balances, expanded executive power beyond its constitutional limits, claimed millions of lives, cost trillions of dollars, and repeatedly drawn the United States into conflicts that had little or nothing to do with defending America.
The Constitution is remarkably clear on the question of war. Article I grants Congress — not the president — the power to declare war. The president, under Article II, wages war, but only after Congress has authorized it.
James Madison argued that the executive branch is the branch “most interested in war, and most prone to it,” which is precisely why the Constitution deliberately divided the war power.
The Framers believed that no single individual should possess the authority to plunge the nation into armed conflict, yet over the past eight decades, presidents of both political parties have steadily ignored these constitutional limits.
President Harry Truman committed hundreds of thousands of American troops to combat in Korea without obtaining a declaration of war from Congress because he said U.S. troops there constituted a “police action.”
The pattern only intensified during the Vietnam War. Although Congress passed the Gulf of Tonkin Resolution, it was based on a fraud and effectively delegated its congressional constitutional responsibility to the president. The result was years of escalating conflict that ultimately claimed the lives of more than 58,000 Americans and millions of Vietnamese while achieving none of its stated objectives.
The attacks of September 11, 2001, fundamentally accelerated this trend. Congress passed the Authorization for Use of Military Force and the Patriot Act — the former granting the president broad authority to pursue those responsible for the attacks, and the latter substantially impairing rights protected by the Fourth Amendment.
What was presented as a targeted war authorization evolved into legal justifications for military operations across multiple countries against groups that did not even exist in 2001.
The wars in Afghanistan and Iraq illustrate the costs of this expansive approach. The war in Afghanistan lasted two decades before ending with the return of the Taliban to power. Iraq was invaded based on fabricated or erroneous intelligence assessments regarding weapons of mass destruction.
The proper role of government — according to Thomas Jefferson, its only role — is to protect life, liberty and property, not to remake foreign societies through military force. Wars of choice generate unintended consequences, empower new enemies, create refugee crises and expand government power at home.
The economic and human consequences are equally profound. Massive defense expenditures have pushed the debt of the federal government to nearly $40 trillion. A government willing to kill millions and spend trillions on foreign wars while borrowing money to pay the interest on borrowed money will one day collapse of its own weight; as have all empires.
A genuinely constitutional foreign policy would look very different. Military force should be reserved for defending the United States against actual or truly imminent attacks, not speculative threats or ambitious nation-building projects, or favors for other countries. Congress should debate and vote openly before committing American forces to any combat.
Strong national defense does not require perpetual war. A capable military can deter aggression. Diplomacy, commerce and peaceful engagement generally serve American interests more effectively than military intervention.
George Washington’s warning against entangling foreign commitments and John Quincy Adams’s declaration that America “goes not abroad in search of monsters to destroy” remain relevant guides for a republic committed to liberty, rather than an empire committed to conquest. Of course, monsters abroad can follow you home.
The constitutional allocation of war powers exists not as a procedural rule but as a substantive safeguard for freedom itself. Every unnecessary war expands executive authority, enlarges government, consumes wealth, risks American lives without clear necessity and diminishes personal liberty.
The best protection against endless conflict is a less powerful presidency and a renewed commitment to the Constitution’s deliberate separation of powers and the principle that the United States should fight only when its own security imminently and genuinely requires it.
Is it any wonder that the U.S. is unwilling or unable to justify its recent killings of 163 Tehran school girls and their teachers?
To learn more about Judge Andrew Napolitano, visit JudgeNap.com.
Reprinted with the author’s permission.
Copyright © Andrew P. Napolitano
Andrew P. Napolitano [send him mail], a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written nine books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty.
