legality of war

[3lyford]

I see debate on here as to whether or not the war in Libya is legal. Whether or not it is, what about the question of what do we think should be legal. Should the power to enter us into a war, probably the largest decision a government can make. Should that power sit solely in the hands of only one man? I for one think their should be some checks on that power. Basically I'm curious as to what system people would want for us to go to war.

For me, war can only be defensive. As in a response to an attack. Pre-emptive is bs and this insanity of war for oil ooops to help people is crazy. Humanitarian war shouldn't happen, it made more sense in the old days when we just called it manifest destiny. So I'd like a high bar as in at least one branch of congress giving 2/3 support to engage in any hostile action in a foreign country. Any enemy troops that come over here the president can handle that solo I guess.

[PonyJon]

1. Use of war to easy for Chief Executive ie. president.

I've heard mention of possible impeachment for the President
for not getting the constitutionally mandated approval of
congress to engage in military operations of war.  I have some
trepidation about this but it can be argued that if this
happened it would certainly cramp the Commander in Chief's
ability to unilaterally order our troops to war.  I perceive
this to be a good thing, but do not like to hang the onus on
President Obama.

[3lyford]

2. It would seem unfair

to be like all these presidents before you did it but we want to make an example so we are dropping the hammer on you. I'm not really asking if Obama should be impeached, too much precedent for that now. I do think the system needs to be changed.

[Xicano]

3. "War Powers ACT"

War Powers Act vs Constitution Article 1, §8

The way I see it is like this: The war powers act is in conflict with Article 1, §8:

"The Congress shall have power to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."

And it is my understanding from the land mark Supreme Court Case of Marbury v. Madison that whenever an "ACT" is in conflict with the Constitution, the Constitution reigns supreme and the Act is therefore "void".

5 U.S. 137 Marbury v. Madison

"The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.

The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.

Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject."



http://www.law.cornell.edu/supct/html/historics/USSC_CR_0005_0137_ZO.html