As the 36^th Congress of the United States ended and again as the 37^th began, there were vacant chairs: more and more by the day. This was a fortunate thing for the incoming administration and the incoming President, who as a result gained outright control of both Houses of Congress. And gained something more—and more important—beside.

We shall return to that.

I am a strict constructionist when it comes to the Constitution; a textualist, indeed an originalist. I am also—at least in this regard—not a fool.

The Constitution of the United States of America is—apparently—clear. Article I, Section 8, sets forth that

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the Supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The War Powers Clause—Article I, Section 8, Clause 11—appears (note that word) perfectly clear. Congress alone can declare war.

The United States has not fought a declared war since 1945. Yet these days have not passed in unbroken peace. There is a case to be made, and reputable voices in both parties are seeking to make it, that presidents of both parties have been acting unconstitutionally in sending US Forces into conflicts for eight decades.

QED? Not so fast.

On the basis—or the pretext: you pays your money and you takes your choice—that the advent of nuclear weapons, and particularly the ICBM, has changed the strategic situation in ways the Framers could not have imagined, the power to make war, but not to declare it or fund it, has accreted increasingly to the Executive: to the President. Yes, that leaves me, if not disgruntled, all the same in a state of less than perfect gruntlement. However…

Beginning with the passage in 1973 of 50 US Code § 1541 et sequitur, the ‘War Powers Resolution’, Congress has at once delegated operational power to the Executive and restricted it.

§ 1541 is clear:

(a) Congressional declaration

It is the purpose of this chapter to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.

(b) Congressional legislative power under necessary and proper clause

Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.

(c) Presidential executive power as Commander-in-Chief; limitation

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

Pursuant to § 1542,

The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.

The President is required by § 1543 to act as follows:

(a) Written report; time of submission; circumstances necessitating submission; information reported

In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—

(1)

into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;

(2)

into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or

(3)

in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation;

the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth—

(A)

the circumstances necessitating the introduction of United States Armed Forces;

(B)

the constitutional and legislative authority under which such introduction took place; and

(C)

the estimated scope and duration of the hostilities or involvement.

(b) Other information reported

The President shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad.

(c) Periodic reports; semiannual requirement

Whenever United States Armed Forces are introduced into hostilities or into any situation described in subsection (a) of this section, the President shall, so long as such armed forces continue to be engaged in such hostilities or situation, report to the Congress periodically on the status of such hostilities or situation as well as on the scope and duration of such hostilities or situation, but in no event shall he report to the Congress less often than once every six months.

In accordance with § 1543a,

(a) In general

Not later than 48 hours after any incident in which the United States Armed Forces are involved in an attack or hostilities, whether in an offensive or defensive capacity, the President shall transmit to the congressional defense committees, the Committee on Foreign Relations of the Senate, and the Committee on Foreign Affairs of the House of Representatives a report on the incident, unless the President—

(1)

otherwise reports the incident within 48 hours pursuant to section 1543 of this title; or

(2)

has determined prior to the incident, and so reported pursuant to section 1549 of this title, that the United States Armed Forces involved in the incident would be operating under specific statutory authorization within the meaning of section 1544(b) of this title.

(b) Matters to be included

Each report required by subsection (a) shall include—

(1)

the authority or authorities under which the United States Armed Forces were operating when the incident occurred;

(2)

the date, location, and duration of the incident and the other parties involved;

(3)

a description of the United States Armed Forces involved in the incident and the mission of such Armed Forces;

(4)

the numbers of any combatant casualties and civilian casualties that occurred as a result of the incident; and

(5)

any other information the President determines appropriate.

Whereupon, under § 1544,

(a) Transmittal of report and referral to Congressional committees; joint request for convening Congress

Each report submitted pursuant to section 1543(a)(1) of this title shall be transmitted to the Speaker of the House of Representatives and to the President pro tempore of the Senate on the same calendar day. Each report so transmitted shall be referred to the Committee on Foreign Affairs of the House of Representatives and to the Committee on Foreign Relations of the Senate for appropriate action. If, when the report is transmitted, the Congress has adjourned sine die or has adjourned for any period in excess of three calendar days, the Speaker of the House of Representatives and the President pro tempore of the Senate, if they deem it advisable (or if petitioned by at least 30 percent of the membership of their respective Houses) shall jointly request the President to convene Congress in order that it may consider the report and take appropriate action pursuant to this section.

(b) Termination of use of United States Armed Forces; exceptions; extension period

Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543(a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.

(c) Concurrent resolution for removal by President of United States Armed Forces Notwithstanding subsection (b), at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.

The remaining sections are largely administrative or definitional.

The Supreme Court has not been called upon to determine any dispute as to whether the War Power is delegable; or, four-square, whether the War Powers Resolution is constitutional; any distinction between ‘police actions’ as opposed to ‘war’; the sufficiency—or necessity—of congressional AUMFs; or, really, right much regarding this issue at all. It is possible the courts and, ultimately, the Court, should in the event of any challenge regard the matter as political and thus not justiciable. But so far, the question has not arisen.

The Framers were neither omniscient nor clairvoyant. But they were remarkably shrewd … to the point of prescience.

Here, from Farrand’s Records of the Constitutional Convention, is the debate amongst the Framers regarding Article I, Section 8, Clause 11, the War Power, on 17 August 1787.

“To make war”

Mr Pinkney¹ opposed the vesting this power in the Legislature. Its proceedings were too slow. It wd. meet but once a year. The Hs. of Reps. would be too numerous for such deliberations. The Senate would be the best depositary, being more acquainted with foreign affairs, and most capable of proper resolutions. If the States are equally represented in Senate, so as to give no advantage to large States, the power will notwithstanding be safe, as the small have their all at stake in such cases as well as the large States. It would be singular for one authority to make war, and another peace.

Mr Butler.² The Objections agst the Legislature lie in a great degree agst the Senate. He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it.

Mr Madison³ and Mr Gerry⁴ moved to insert “declare,” striking out “make” war; leaving to the Executive the power to repel sudden attacks. Mr Sharman⁵ thought it stood very well. The Executive shd. be able to repel and not to commence war. “Make” better than “declare” the latter narrowing the power too much.

Mr Gerry never expected to hear in a republic a motion to empower the Executive alone to declare war.

Mr Elseworth.⁶ There is a material difference between the cases of making war, and making peace. It shd. be more easy to get out of war, than into it. War also is a simple and overt declaration, peace attended with intricate & secret negociations.

Mr Mason⁷ was agst giving the power of war to the Executive, because not (safely) to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred “declare” to “make”.

On the Motion to insert declare — in place of Make, (it was agreed to.)

N. H. no. Mas. abst. Cont. no. [On the remark by Mr King⁸ that “make” war might be understood to “conduct” it which was an Executive function, Mr Elseworth gave up his objection (and the vote of Cont was changed to—ay.] Pa ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo— ay. [Ayes — 7; noes —2; absent — I.]

Mr Pinkney’s motion to strike out whole clause, disagd. to without call of States.

Mr Butler moved to give the Legislature power of peace, as they were to have that of war. Mr Gerry 2ds. him. 8 Senators may possibly exercise the power if vested in that body, and 14 if all should be present; and may consequently give up part of the U. States. The Senate are more liable to be corrupted by an Enemy than the whole Legislature.

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. [Ayes — 0; noes — 10.

Adjourned.

The power reserved to Congress was by the Framers specifically limited to declaring, not making or waging, war; and the power reserved to the President, that of making war, repelling attack. And Congress retained the reins insofar as it retained the purse-strings.

There is a legally colorable and intellectually reputable argument that the Iranian theocracy—not its people: its government—has for 47 years being attacking the United States regularly and has been, whether we have reciprocated it or not, at war with this country; and that they have been confirmed in that course by the curious habit in administrations of both parties of rewarding rather than repelling their acts of war. But we need not reach the merits of that issue.

The provisions of 50 USC § 1541 et seq. facially appear to conform to the Framer’s intentions. They recognized a distinction between ‘making’ and ‘declaring’ war. They recognized that ‘making war’ comprehended ‘conducting’ operations—a power they were vesting solely in the Executive as Commander in Chief—and they resiled accordingly from granting the Legislative the power to ‘make’ war instead of merely declaring that a state of war existed. And Art. I, Sec. 8 as adopted and ratified grants Congress the exclusive powers to tax and spend—the defense budget included (Cl. 1)—, to raise, support, and maintain armies and a navy (Cll. 12 and 13), to establish military regulations and what ultimately became the UCMJ (Cl. 14), and to raise (Cl. 15) and regulate (Cl. 16) what is now the National Guard. The War Powers Resolution meets all these criteria and incorporates these safeguards.

The Framers did all and more than men could do to anticipate possible disasters and make the Constitution they were writing proof, so far as possible, against a corrupt, a foolish, or an idiot future President.

The issue now raised is whether beginning combat operations without an AUMF and without securing at least the assent of Congress, beforehand, even if a declaration is not immediately forthcoming and there has been no direct attack upon United States territory or possessions which requires to be repelled, and/or whether evading ‘within 48 hours’ and after full and open Congressional scrutiny, adheres to Art. I, Sec. 8, Cl.11 and to 50 USC § 1541 et seq.

The Framers, immediately prior to the debate upon what became Clause 11, had debated an issue which became Clause 15. As ratified, that clause reads as follows:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions[.]

And the Record sets out the debate which was had.

“To subdue a rebellion in any State, on the application of its legislature”

Mr Pinkney moved to strike out “on the application of its legislature”

Mr Govr. Morris⁹ 2ds.

Mr L— Martin¹⁰ opposed it as giving a dangerous & unnecessary power. The consent of the State ought to precede the introduction of any extraneous force whatever.

Mr Mercer¹¹ supported the opposition of Mr Martin.

Mr Elseworth proposed to add after “legislature” “or Executive”.

Mr Govr Morris. The Executive may possibly be at the head of the Rebellion. The Genl Govt. should enforce obedience in all cases where it may be necessary.

Mr Ellsworth. In many cases The Genl Govt. ought not to be able to interpose unless called upon. He was willing to vary his motion so as to read, “(or without it) when the legislature cannot meet.”

Mr Gerry was agst. letting loose the myrmidons of the U. States on a State without its own consent. The States will be the best Judges in such cases. More blood would have been spilt in Massts in the late insurrection, if the Genl authority had intermeddled.

Mr Langdon¹² was for striking out as moved by Mr Pinkney. The apprehension of the national force, will have a salutary effect in preventing insurrections.

Mr Randolph¹³— If the Natl. Legislature is to judge whether the State legislature can or cannot meet, that amendment would make the clause as objectionable as the motion of Mr Pinkney.

Mr Govr. Morris. We are acting a very strange part. We first form a strong man to protect us, and at the same time wish to tie his hands behind him. The legislature may surely be trusted with such a power to preserve the public tranquillity.

On the motion to add “or without it (application) when the legislature cannot meet”

N. H. ay. Mas. no. Ct ay. Pa. divd. Del. no. Md. no. Va. ay. N- C. divd. S. C. ay. Geo. ay. [Ayes — 5; noes — 3; divided — 2.] so agreed to —

Mr Madison and Mr Dickenson¹⁴ moved (to insert as explanatory,) after “State” — “against the Government thereof” There might be a rebellion agst the U- States. — (which was) Agreed to nem- con.

On the clause as amended N. H. ay. Mas- abst. Ct ay. Pen. abst. Del. no. Md. no. Va. ay. N- C. no. S. C. no- Georg. ay — (so it was) lost [Ayes — 4.; noes — 4; absent — 2.]

And here is the rub, which the Framers partly foresaw. Elbridge Gerry was within the hour to point out, in the context of the War Powers debate, that ‘The Senate are more liable to be corrupted by an Enemy than the whole Legislature.’ He, Martin, Mercer, Morris, Randolph, Madison, and Dickinson all recognized, and made certain the Convention recognized, that any insurrection might be led by the Governor, or the legislature, of any state, or by both—and become an insurrection against the United States government or a full-scale rebellion.

And they surely knew from quite recent experience that there are always those whose loyalties are elsewhere. In 1787, that should be regrettable but not fatal, even were those disaffected towards the United States government, or in any one State against its government, members of the Congress or of a state legislature. The potential damage which such a person could do was then limited by time and distance and the possible speed of communications. Any intelligence of United States plans and dispositions, if war threatened, should have been stale before it reached the nearest Spanish, French, or British outpost; stone-cold before it reached a viceroy or governor-general; and stinking like rotten mackerel before it was halfway across the Atlantic.

That such disloyalty was not seriously attempted all the same was not for want of trying on the part of various political figures serving and resenting the United States over the years. Secession, rather than interposition and nullification, first threatened the young Republic during the War of 1812, when New England began talking of leaving the Union (not from motives of conscience, naturally: they were losing money as a result of the war). Firebrands such as Timothy Pickering¹⁵—who had served in three Cabinet posts, as a US Senator from Massachusetts from 1804 to 1811, and as a Congressman from Massachusetts beginning in 1813—and Josiah Quincy III¹⁶ were abroad in the land preaching disunion and flirting with the idea of creating a new nation with ties to Great Britain. And there were British troops in Canada, on New England’s doorstep; and the Royal Navy just off its coasts…

Ten days before Christmas in 1814, the Hartford Convention first met to take up various proposals arising from this fever dream. Pickering and Quincy were wisely excluded; but it was presided over by George Cabot,¹⁷ a former US Senator from Massachusetts; had as its secretary Theodore Dwight,¹⁸ a former Congressman from Connecticut (and cousin to Aaron Burr); and included such luminaries of Yankeedom as Harrison Gray Otis,¹⁹ a former Congressman from Massachusetts, a future US Senator therefrom, and at the time a member of the Bay State’s legislature; the sitting Speaker of the Massachusetts House, Timothy Bigelow;²⁰ Chauncey Goodrich,²¹ until 1813 a US Senator from Connecticut and during the Hartford Convention the Lieutenant Governor of that state; and Samuel Ward the Younger²² of Rhode Island, an officer in the Revolution and the son of a former governor of Rhode Island.

It was only the good sense of the younger members of the New England political class such as Daniel Webster,²³ and the news that Andrew Jackson²⁴ had beat Pakenham²⁵ at New Orleans, which left the Hartford Convention emissaries, in DC to present their demands, from making the final mistake of their lives—if at the cost of a right smart of embarrassment.

Before ever he won glory at the Battle of New Orleans, Old Hickory also had flirted with disloyalty, touching pitch in the schemes of Burr²⁶ and Wilkinson²⁷ as those two men had schemed with and betrayed one another even as they conspired against the United States and the nation’s interest. But although Wilkinson at the pertinent time was the senior officer in the US Army and Governor of the Louisiana Territory, the former Vice President Burr was long since out of office at the time of his plots.

But imagine the situation three score and thirteen years on.

It is right fashionable nowadays for people to say, and many of them sincerely to imagine, that everyone connected with the Confederacy was a proto-Boer, an incipient Kluxer, a literal Nazi avant la lettre. It is providential: for the United States, North and South, Black or white; for the world; and for the United States government elected in 1860 and taking office in 1861: that this was not so.

Here is where we return to the 36^th and 37^th Congresses: for the former was replaced by the latter in the general election of 1860.

In his maturer years, James J Kilpatrick, who had succeeded Dr Douglas Southall Freeman²⁸ as editor of the Richmond News Leader, wryly, ruefully, and repentantly described Southern chivalry as merely ‘lace on leg-irons’: a brilliant and accurate description. (Certainly Virginius Dabney,²⁹ editor of the sisterly rival Richmond Times-Dispatch and a man with little use for Dr Freeman, Kilpo, or the Byrd Organization,³⁰ should have concurred—and did.) All the same, the white Southern elites of 1860, whether Southern Unionists or Secessionists, were tied indissolubly to their own self-conception as chivalrous, honorable, and possessed of all the Cavalier virtues. With the secession of South Carolina, the contagion spread through the Lower South, and with the President-Elect’s evident intention not to allow those states to secede peaceably, the Upper South began to consider whether they could remain in a Union ‘held together by bayonets.’ One after another, the congressional delegations of the seceding states in both chambers departed as their states departed; after Fort Sumter, the Upper South and the Border States seceded or tried to, and the seats of their delegations were likewise vacated and sat empty, or were filled with dubiously elected scalawags. This alone gave the Republicans and Unconditional Unionists and National Unionists and Southern Unionists an insuperable majority in the House and in the Senate, such that Representatives and Senators whose states’ position was contested or pending could be and were then expelled ‘for disloyalty’.

Trammeled by their own conception of honor, the Southern senators and representatives departed.

But what if they had not done?

A subtle legal mind—say, that of Louisiana’s US Senator Judah P Benjamin,³¹ the greatest lawyer (and specially the greatest appellate lawyer) of the day, superior even to such legends as Daniel Webster and Henry Clay³²—might well have evolved an elegant trap. Each state as it seceded ought to return representatives and senators to Washington City and an equivalent—a separate but equal—delegation to the provisional and then to the permanent congress of the Confederacy, whatever states might join it and wherever it might sit. (South Carolina should likely have balked at this: from the beginning South Carolina has been a trifle off, settled by Caribbean slave-masters rather than by colonists directly from the British Isles, and Charleston being full of Huguenots who, in their Calvinist certainties, regarded the color line as the outward and visible sign of the difference between the Elect and those doubly damned and predestined to Hell; but the absence of a South Carolina delegation in the US Congress should not be fatal. Nor should it be fatal were the Southern Unionists and the ardent Secessionists in Texas to agree to stand aside and join in the one project they might agree upon: leaving the Union—which Texas, uniquely, had joined by a Treaty between sovereign nations—and resuming their character as the Republic of Texas, a part neither of the United nor of the Confederate States.)

And what could the 37^th Congress, or the new Lincoln Administration, then do?

One can imagine the bland responses of the Gentleman from Mississippi, the senior Senator from Alabama, the Southern and Border States colleagues whose states had not yet voted to secede.

‘You say you shall not seat or recognize us? The Representatives are elected in due form by the people, the Senators canonically appointed by the several legislatures.³³

‘Our states have seceded and left the Union, sir? If you admit the right of secession and that it has been exercised … well… If we are now foreigners to you, we shall depart. But if you admit that, then you have neither cause nor right under the law of nations to assail our states; and we shall appeal to the mediation, and, that failing, the intervention, of the Powers of Europe, and foremost to Great Britain and France.

‘Our states are in rebellion? How, my dear sir, can this be? We are here in due form and prepared to resume or to embark upon our duties.

‘You shall expel us? You shall bring articles of impeachment and try them? Let each chamber then resolve itself into a committee of the whole: which shall require a quorum, which you have not without us. It shall require a majority to vote any such measures: and whilst we are here, sir, you have that not. Or shall, instead, the new Chief Magistrate suspend the writ of habeas corpus as in Maryland, and then imprison the Chief Justice,³⁴ sir, and us with him, without the authority of Congress?

‘Is not each chamber of this body the sole judge of the qualifications of its members?³⁵ The Executive cannot be admitted to the determination. Surely the gentleman from Ohio dare not admit a precedent to the contrary: for that is a weapon which may readily in future days turn in his hand and that of his Party. And, Mr Speaker, the qualifications of the members of this, the House of Representatives, are, like those of the Other Chamber, set out exclusively in the Constitution.³⁶ Have not we all of us attained to the age of five-and-twenty years? Which of us, Mr Speaker, has not been seven years a citizen of the United States as of the day of our election? Pray, Mr Speaker, which of us, when elected, was not an inhabitant of the State which has returned us here as her representatives?

‘Treason, sir? Mr President pro tempore, that crime is the only crime defined strictly in the Constitution.³⁷ It is not left to the wisdom of a Solomon or, as matters in equity may be, measured by the length of the Chancellor’s foot.’³⁸

The 37^th Congress began its session on 4 March 1861. At that time, South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana, and Texas had already seceded, although two Louisiana Representatives remained. We have already surveyed South Carolina and Texas: the absence of their delegations meant that four seats in the Senate and eight in the House were vacant. That alone should not have granted the Republicans, and the various Unionists caucusing with them, the bare plurality they had as the session began; had the other states which had already sent delegations to the Provisional Government of the CSA, and those which were later to secede, also sent delegations to Washington, that should have added and retained over twenty Southern Senators and some forty votes in the House.³⁹

Whatever that should have done to the composition of the Congress, it should have made the Union war effort beginning with the attempt to resupply and hold Fort Sumter effectively impossible. The Provisional Confederate Government met in Montgomery, Alabama: with which communication was not impossibly slow. Without the attempt to hold Fort Sumter, and the Federal call for troops, the Upper South—and the Old Dominion in particular—should likely never have seceded: and without Virginia’s secession, it is unlikely that North Carolina and Tennessee should have seceded. Without an overtly hot war, Arkansas as well might have eschewed secession, and Missouri never contemplated it. Perhaps the whole war might have fizzled out, the South having made its point and a new Grand Compromise reached. But it is not necessary to imagine a United States Army, with a Virginia not seceded, in which Winfield Scott⁴⁰ was succeeded by my ninth cousin RE Lee, with George H Thomas⁴¹ spared an agony of choice, with the Mighty Stonewall,⁴² JEB Stuart,⁴³ Joe Johnston,⁴⁴ Dick Ewell,⁴⁵ and all the Army of Northern Virginia in Union blue and US Grant—my eleventh cousin—and Cump Sherman—my fourteenth—holding commands under General Lee, and with my tenth cousin’s husband Phil Sheridan matching horses with my twelfth cousin Turner Ashby and my ninth cousin John Singleton Mosby: all held in reserve to grant some deterrent, some unused but ever-present, fortiter in re to whatever suaviter in modo reconciled the Deep South to the Union. It is necessary only to consider the intelligence problem posed by a Congress which contained an appreciable number of members from the seceded states. Particularly had Virginia seceded, and news and secrets had but ninety miles to travel between the Hill and Richmond.

I repeat: I am not fond of the War Powers Resolution and the Congressional abdication of its prerogatives; but I think it constitutional and practical. Equally, I have no faith in the man Trump or his motives, if one can dignify the infantile whims of the creature with the dignity of ‘motive’. I certainly think it had been much better had the current administration sought an AUMF before beginning operations … in theory.

But we confront a peculiar peril here. The arguments against doing so are obvious. § 1542 provides that ‘The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations’; § 1543 requires that absent a declaration of war, ‘the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth … the circumstances necessitating the introduction of United States Armed Forces … [and] shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad.’

I do not know who has cajoled and flattered MBOTUS, the Man-Baby of the United States, into doing the right thing here: it is assuredly not the State of Israel nor yet the Republic of Ukraine. The through-line, which Trump cannot possibly have thought of for himself, in the Venezuelan intervention so soon followed by the Iranian operations, is evidently to deprive the PRC of oil and influence and the ability to project power, and, which I am certain has carefully not been explained to the orange toddler, to interdict the source of Shahed drones to the PRC and Putin alike. That is doubtless why the public-facing adults, if any, in the administration are unable openly to articulate the causes of the actions to the gum-swallowing public: which has regrettable consequences. But this is not material.

What is material is that a preemptive request for an AUMF, and any but the barest information to Congress before operations began, should have scuppered everything. No one can seriously contend that Rep. Tlaib and Rep. Omar should not immediately have broadcast every hint of every plan to the adversary; that Sen. Sanders, the Jeremy Corbyn of US politics, should not, with an idealism deserving of better principles, have immediately found a news crew to whom he might detail all operational information shared with him or his colleagues; that staffers all over the Jackass side of the Hill should not have joined with ‘groyper’ groupies and redhats and the disciples of Fuentes and Owens on the Elephant side to leak everything they could find, filch, or hack; and that the deluded Cro-MAGAs in Congress, screaming of ‘forever wars’ and joining the Sedition Squad across the aisle in their Jew-hatred, should not have explicitly briefed the intelligence operatives of our foes.

The War Powers Resolution is a relic of the Cold War and the fear of the ICBM, and that the missiles should have been launched against us and our allies before ever Congress could sit. But the current threat—and it is a clear and present danger, and one for which both parties and particularly Mr Trump and his acolytes are alike responsible—is in the instantaneous speed of the text and the tweet from elected officials in Congress and their true-believer staffers eager to play Tyler Kent or Alger Hiss according to which stripe of totalitarian they sympathize with.

The trouble is no longer that enemy missiles may reach us before Congress can act. It is that Congress is full of the friends of our foes, elected by a rabble and possessed of the means whereby they can, and, given a chance, shall, instantly communicate our military secrets to our adversaries.

I am wary of the War Powers Resolution. I am unimpressed with the administration’s loose adherence to it. But I think the Framers should, just, accept these. The current mechanisms are a function of our dysfunction; like the Thirty-Nine Articles, they are a compromise, a fudge, a bodge, jury-rigged and in want of rethought. But I think, if reluctantly, they suffice. And I am certain that they must suffice for the moment, as the current operations are prosecuted: a position I am not at all pleased to have been forced into.

I am confident that—by God’s good Grace—the Constitution my people⁴⁶ wrote can withstand anything thrown at it, and the Republic they created with it. I have no confidence whatever in the Congress or the President: nor did the Framers. They had and I have but a limited confidence in the people (‘Your “people” are a great beast’⁴⁷)—which is why they created a Republic, not a plebiscitary democracy prey to demagogues. (Repealing the Seventeenth Amendment as we wisely repealed the Eighteenth, another idiocy of its populist, progressive, hysteric time, were a good start to fixing that problem: God knows it’s had a fair trial and its failures are clear. And both parties are going to die and be replaced if they don’t get rid of the primary system, in which the most unhinged of the peons and peasants pick between rival pissants bidding ever higher for their lunatic support.)

But I should be interested to hear—and where these are worthwhile, to engage—other proposed solutions, be these from my old friend and classmate Jack Goldsmith or from our classmate Glenn Kirschner, from Lawyer Conner, Lawyer Thompson, Lawyer Turley, Judge Davidson, Judge Landrum, my old housemate Jim Green Esq., or from any qualified source. Have at it. Just do remember I have other calls upon my time and am not billing for educating or debating the Internet and all who sail therein.

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1. Charles Pinckney, Delegate from South Carolina, and a connexion of mine by marriage. ↩︎
2. Pierce Butler the Elder, Delegate from South Carolina, my twelfth cousin. ↩︎
3. My eighth cousin James Madison, Delegate from Virginia. ↩︎
4. My fifteenth cousin Elbridge Gerry, Delegate from Massachusetts. ↩︎
5. My tenth cousin Roger Sherman, Delegate from Connecticut. ↩︎
6. My sixteenth cousin Oliver Ellsworth, Delegate from Connecticut. ↩︎
7. My ninth cousin George Mason IV, Delegate from Virginia. ↩︎
8. My tenth cousin Rufus King, Delegate from New York. ↩︎
9. My thirteenth cousin Gouverneur Morris, Delegate from Pennsylvania. ↩︎
10. My twelfth cousin Luther Martin, Delegate from Maryland. ↩︎
11. John Francis Mercer, Delegate from Maryland and half-brother to my ninth cousin. ↩︎
12. My thirteenth cousin John Langdon, Delegate from New Hampshire. ↩︎
13. My ninth cousin Edmund Jennings Randolph, Delegate from Virginia. ↩︎
14. My twelfth cousin John Dickinson, Delegate from Delaware. ↩︎
15. My twelfth cousin. ↩︎
16. My eleventh cousin, until 1813 a US Senator from Massachusetts, in 1814 a member of the Bay State’s senate, and the first man ever to threaten secession on the floor of Congress (over admitting Louisiana to the Union). ↩︎
17. My eleventh cousin. ↩︎
18. My fourth cousin. ↩︎
19. My fourteenth cousin. ↩︎
20. My fourteenth cousin. ↩︎
21. My seventh cousin. ↩︎
22. My twelfth cousin. ↩︎
23. My twelfth cousin. ↩︎
24. My fifteenth cousin. ↩︎
25. Major General Sir Edward Michael Pakenham GCB, my ninth cousin. ↩︎
26. My eleventh cousin Aaron Burr. ↩︎
27. Brigadier General James Wilkinson, my fifteenth cousin. ↩︎
28. My fourteenth cousin. ↩︎
29. My fourteenth cousin also. ↩︎
30. The Conservative Democratic political machine of my tenth cousin Governor and US Senator Harry Flood Byrd the Elder and his son and successor in the US Senate Harry F Byrd the Younger, my eleventh cousin, which controlled Virginia politics for eighty years. ↩︎
31. His niece married my sixteenth cousin. ↩︎
32. My eleventh cousin. ↩︎
33. Amendment XVII was not even a dream in anyone’s mazed brain then: under Art. I, Sec. 3, Cll. 1 and 2, US Senators were at the time appointed by the legislature of their states. ↩︎
34. Roger Brooke Taney, my twelfth cousin. ↩︎
35. Art. I, Sec. 5, Cl. 1. ↩︎
36. Art. I, Sec. 2, Cl. 2, for the House; for the Senate, Art. I, Sec. 3, Cl. 3 (‘No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen’). ↩︎
37. Art. III, Sec. 3: ‘Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.’ ↩︎
38. The ‘length of the Chancellor’s foot’ began as a metaphor used by the English legal writer John Selden, in noting that, in equity, judicial judgment, indeed, ‘vibes’, replaced bright-line law; it was quoted by Lord Chancellor Elden in Gee v Pritchard and Anderson (1818) 2 Swanston 402 and by many a court since. The President pro tem of the US Senate in the 37^th Congress was … Senator Solomon Foot, Republican of Vermont, my fifteenth cousin. ↩︎
39. To what extent these members should have fully supported the Confederacy rather than, say, compromise, cannot of course be certainly known. ↩︎
40. My fifteenth cousin. ↩︎
41. My twelfth cousin. ↩︎
42. My twelfth cousin. ↩︎
43. My twelfth cousin. ↩︎
44. My fifteenth cousin. ↩︎
45. My thirteenth cousin. ↩︎
46. A Southernism, meaning, ‘One’s ancestors and closer cousins and connexions, in-laws and outlaws’, not ‘people of one’s particular skin tone or religion or whatnot’. So it means my (extended) family, and not ‘a mathematical class or set defined as “short, stout, balding, red-blond, blue-eyed Continuing Anglicans who are all, by descent, of Welsh, Anglo-Welsh, Irish, Old English in Ireland, Scots, Anglo-Scots, West Midlands, West Country, Cornish, Norman, Vikings-who-stayed-in-the-Danelaw, and the occasional Huguenot, extraction”’, for example. ↩︎
47. The words of Alexander Hamilton, my eighth cousin. ↩︎