declare war but to go to war, big wars, little wars. The power to declare, i.e. to wage war, was vested in Congress, James Wilson explained to the Pennsylvania Ratification Convention, as a guard against being hurried into war, so that no "single man (can) involve us in such distress" (RB 36). * * * The severely limited role of the President was a studied response to what Madison called "an axiom, that the Executive is the department of power most distinguished by its propensity to war; hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence" (RB 38). "Those who are to conduct the war," said Madison, "cannot in the nature of things be proper or safe judges, whether a war ought to be commenced, continued or concluded" (RB 39). I beg you to remember not merely "commenced," but also "continued or concluded," meaning terminated by treaty or otherwise. That power was not lodged in the President but in Congress. George Mason also was against giving the power of war to the President, because not (safely) to be trusted with it (RB 40). So the President was left with the power to repel and not to commence war, as Roger Sherman advised (RB 39). THE POWER TO REPEL SUDDEN ATTACK But for the power to repel sudden attacks on the United States or to direct a war once begun by Congress, the entire warmaking power was vested in Congress. On this eminent scholars are agreed, as the hearings before the Senate Foreign Relations Committee on the Javits War Powers Bill (1971) amply testify. I may add. Mr. Chairman, I very drastically foreshortened the historical facts that further buttress this position. Professor John Norton Moore finds uncertainty as to which branch would have authority to commit the nation to force short of war, or indeed what war meant (Fulbright Hearings 462). Such semantic questionings overlook the founders' anxiety to limit the power of a single man to hurry us into war. You may say, Mr. Chairman, what are hostilities: my colleagues were loathe to comment on that. Being an old man I shall be more indiscreet. I would say about hostilities what Justice Potter Stewart said about hardcore propaganda. "I cannot define it but I think I can recognize it: a cock fight or a fight between two soldiers plainly is not hostilities." Maybe a fracas between 50 soldiers is not hostilities; but for example, if 1,000 men invade American soil, that is hostilities. If 1,000 soldiers start firing rockets and bombarding American soldiers on German soil I would say that is hostilities, and for a starter that is good enough. PRESIDENTS STARTING BRUSH FIRES Those who feared a blazing forest fire were little disposed to authorize the President to start brush fires. Brinksmanship is an invention of our era. A convention which carefully authorized the President to repel sudden attacks on the United States hardly left him free to engage in foreign adventures short of war. Congress, said the Supreme Court in 1800, may declare a general war or wage a limited war. Bas v. Tinsay, 4 Dallas 37, dissipating Mr. Moore's uncertainty. Madison's summary of the matter deserves to be blazoned on your walls in letters of gold: Every just view that can be taken of this subject, admonishes the public of the necessity of a rigid adherence to the simple, the received, the fundamental doctrine of the Constitution, that the power to declare war, including the power of judging the cause of war, is fully and exclusively vested in the legislature; that the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war; that the right of convening and informing congress, whenever such a question seems to call for a decision, is all the right which the Constitution has deemed requisite and proper (RB 48). In 1966 the Legal Adviser of the State Department had little quarrel with the view of the original intention of the Founders herein expressed, and said of the President's power to repel sudden attack that "In 1787 the world was a far larger place, and the farmers probably had in mind attacks upon the United States." (RB47). Assuredly the farmers did not conceive that the President might repel attacks on Kamchatka. But the Adviser added: In the 20th century the world has grown much smaller, an attack on a country far from our shores can impinge directly on the nation's security ***. The Constitution leaves to the President the judgment to determine whether the circumstances of a particular armed attack are so urgent and the potential consequences so threatening to the security of the United States that he should act without formally consulting the Congress (RB 50). NO CONSTITUTIONAL SUPPORT No member of the executive has ever pointed to a constitutional provision, or to a statement of the founders that supports this astonishing claim. Recall Madison's words "the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war." Whether an attack on a foreign state represents a threat to the national security is a political matter not left to the decision of the first general. The "power of judging the causes of war," said Madison, "is fully and exclusively vested in the legislature." I don't believe Professor Reveley is going to bring forth any constitutional provision or statement of the framers to the contrary. In essence, the executive branch appeals to emergency power, and on this we need to bear in mind what Justice Jackson stated when President Truman seized the steel mills in the midst of the Korean War so that production would not be interrupted by labor strife: Emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 652 (1952) (concurring opinion). EXTRAORDINARY PRESIDENTIAL CLAIMS I want to stress that the architect of these extraordinary presidential claims was Dean Acheson. When Secretary of State Acheson advised President Truman in 1950 that he had constitutional authority as Commander in Chief to commit troops to meet the invasion of South Korea, he relied on a State Department memorandum which listed 87 instances in the past century in which prior Presidents had exercised presidential power to send our forces into battle (RB 59). Remember those words "to send our forces into battle." Later Under Secretary of State Katzenbach stated that "most of these [incidents] were relatively minor uses of force" (RB 50-60). The vast majority of such cases, said Edward Corwin involved fights with pirates, landings of small naval contingents on barbarous or semi-barbarous coasts [to protect American citizens], the dispatch of small bodies of troops to chase bandits or cattle rustlers across the Mexican border (RB 60). No possibility of war was presented by these incidents; and one can only marvel at the fantasy that can conjure from such incidents precedents for sending our troops into battle. EXECUTIVE WAGING OF WAR Were these incidents to be regarded as equivalent to Executive waging of war, the last precedent would stand no better than the first. Illegality is not legitimated by repetition. So the Supreme Court has held. It was argued in Powell against MacCormack where the House said: "We have been doing this for a long time," and it was argued in the Steel Seizure case where the Attorney General said, "Presidents have done it in the past." But the court said, "that makes no difference. It was illegal then, it is illegal now." It is the academicians who have fallen in love with the theory: If you repeat something often enough it becomes embedded in the Constitution. But in the words of Mr. Reveley: "We cannot permit power seeking presidents to broaden their constitutional control through bootstrapping," and that, Mr. Chairman, will be my text from here on out. Some academicians consider that Presidential practices constitute a gloss of life on the Constitution, that the Constitution is a living document which must expand to meet new needs. But the way to such expansion is by amendment not by self-appointed revisionists. Given a presidential takeover of war powers plainly conferred upon Congress alone, and accompanied by an unmistakable intention of the framers to withhold them from the President, his appeal to his own precedents would alter the constitutional distribution of powers in violation of the separation of powers. HERESY OF EXPANDING LIVING CONSTITUTION I don't want to pause here but should you have the patience later in the hearing I would like to briefly comment on this gloss of life and on this expanding living Constitution heresy because I dug up very interesting facts on that, and it is facts that sustain us, not fantasy. Those who talk to us about a living Constitution are the first who want to amputate it, put a new transplant on it or put new grafts on it. If it is going to be a living Constitution let it live as it was born. Let me read a couple of statements that I garnered from Mr. Reveley's article. The rationale is this: "Even the clear intent of the drafters must be abandoned without the process of formal amendment, if the Constitution is to minister successfully to needs created by changing times." And he says, "because of the difficulty of the [Constitution's] formal amendment process alteration by usage has proved to be the principal means of modifying our fundamental law." Undeniably the process of amendment is cumbersome and it was made designedly so, so as to protect minorities against the passions of the moment. But it is a marvelous non sequitur that in consequence of its cumbersomeness the servants of the people may amend this Constitution without consulting the people. A CLEAR DELINEATION OF POWERS Bear in mind in light of what I have said before, Mr. Chairman, we are dealing with a clear delineation of powers. Nothing vague, nothing amorphous. A Constitution, particularly as explained by the founders, which clearly lodges the vast bulk of the warmaking powers in the Congress. And now comes the President and his adherents and they tell us "Well, the nuclear age, smaller ocean, we have to change this oldfashioned document." Who shall change it-the President. He'll decide it is too cumbersome to go to the people, and ergo he will revise the Constitution. Professor Rostow inveighs against the Javits bill because "it would permit Congress to amend the Constitution without the inconvenience of consulting the people," (RB 31) this about a return to the Constitution! If Congress cannot by legislation thus "amend" the Constitution, how can Presidential proponents defend the President's amendment of the Constitution by his own practices? Hamilton, the daring pioneer advocate of broadly read Presidential powers, regarded it as a fundamental maxim that: "An agent cannot new-model his own commission. A treaty, for example, cannot transfer the legislative power to the executive department" (RB 57). Now the President claims that what Senate and President combined cannot do, he can do single-handed-transfer the legislative power to the executive department. Let me read something to you from Professor Reveley. ADHERENCE TO INTENT OF LAWGIVER "It seems that most people feel that the rule of law necessitates undeviating adherence to the intent of the lawgiver, until the language in which he embodies his intent is physically changed in accordance with formal processes of revision. Nothing less," he says, "will suffice to assure these people that our society is governed according to law and not pursuant to the whim of public officials. Thus pending formal amendment of the language of the framers most people believe their intent ought to remain binding." I could not have said that half as well, Mr. Chairman. Very well. We have this sound belief of the people, the bulk of the people, that if the Constitution is going to be changed it should be changed by formal revision. Mr. Reveley proposes a compromise variant: if we are going to revise the Constitution, the ultimate criterion must be the long-term best interest of the country. Who is to decide that. The President? Deputy Attorney General Sneed said the other day, "Neither Congress nor the courts can interfere with the President when he exercises his powers." He asserts a blanket control. So who is going to take that away from him? Or are we going to put it in the hands of a selfappointed elite, be they "the best and the brightest," or some closet philosophers? FORMULA FOR SELECTION OF THE ELITE On this Prof. Myres McDougal of Yale said: Until we are furnished with the formula for selection of the elite we are entitled to doubts that the minority has any unique monopoly of wisdom. Government, by a self-designated elite like that of benevolent despotism, may be a good form of government for some people but it is not the American way. Again hallelujah. I believe that is true. I prefer to regard the framers' expectations as "holy writ," to use the words of Mr. Reveley, rather than to permit a headstrong President to rewrite the Constitution at his will. It is a mark of intellectual confusion that at the very time Secretary of State Rogers was saying of the Javits bill, which merely seeks to insure congressional participation in decisions for hostilities: "I don't think you can change the Constitution, amend the Constitution, by legislation," that he could also state: Mindful of the hardships which war can impose on the citizens of a country and fearful of vesting too much power in any individual, the framers intended that decisions regarding the institution of hostilities be made not by the President alone *** but by the entire Congress and President together [Fulbright Hearings 488]. And he agreed that "the Constitution mandates a role for Congress in the making of decisions to use force." [Fulbright Hearings 528.] How can a bill which seeks to secure that role be in violation of the Constitution? CONSTITUTION VESTS WARMAKING ROLE IN CONGRESS If the Constitution already vests this warmaking role in Congress, it may be asked, why is it necessary so to provide by statute? The reason is that proponents of Presidential warmaking, relying on Acheson's "87 incidents," now swelled to 154, maintain that "a practice so deeply embedded in our constitutional structure should be treated as decisive of the constitutional issue." [RB81.] Congress too can construe its powers under the Constitution; and a statute would serve as such a construction. Since, on the view most favorable to the President, warmaking is a shared power, the Presidential power, the Supreme Court has held, would be subject to a countervailing statute. Moreover, disobedience of a statute by the President would place. him in the position of a lawbreaker. No man is above the law, not even the President; and a violation of law opens the courts to enforcement of the statute. Let me emphasize, this issue will not be settled by pious exhortations, even in statutory form. President Eisenhower in 1960 unhesitatingly ordered the Secretary of the Treasury to disobey a statutory |