With last weeks’s beginning of Ken Burns’ new documentary about the Vietnam War, the war will be brought back to the front burner for national discussion and debate.
There is one thing that is crystal clear and indisputable about the U. S. intervention into Vietnam’s civil war: The intervention was illegal under our form of government. That’s because it was waged in violation of the U. S. Constitution, the document that sets forth the powers of U. S. officials, including those in the military and the CIA.
When the federal government was called into existence by the Constitution, its powers were limited to those set forth in the document itself. If a power isn’t enumerated, then it cannot lawfully be exercised.
The Constitution does not give the power to initiate war to the president. The Framers and the American people who ratified the Constitution did not want the president or the military making that decision. That’s why the Constitution delegates the power to declare war to Congress, the elected representatives of the American people.
Thus, if the president initiates war against another nation without a congressional declaration of war, he is acting unlawfully under our form of government.
The interesting question is: Why didn’t the U. S. Supreme Court and the federal judiciary declare the U. S. war on North Vietnam to be unconstitutional?
Ever since the Supreme Court’s decision in Marbury vs. Madison in 1803, the Court has assumed the authority and responsibility to declare acts of the president or laws enacted by Congress to be unconstitutional. And ever since Marbury, there have been many cases in which the federal courts have declared presidential actions or congressional laws unconstitutional.
This post was published at Ludwig von Mises Institute on Sept 23, 2017.
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