Constitutional Question

To the Editor:

Concerning David N. Mayer’s article in the July issue of The Freeman, yes, “Monica’s War” (as broadcaster Paul Harvey labeled it) against Yugoslavia was “immoral,” but as to whether it was “unconstitutional” requires clarification.

In Mayer’s article, I find no mention of Article VI, paragraph 2, of the U.S. Constitution, which states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (emphasis added)

This, I presume, was the basis for Mayer’s writing that “Some legal scholars have advanced the extraordinary argument that Congress has neither a constitutional obligation nor a right to declare war before the United States joins in a ‘police action’ sanctioned by either the United Nations or NATO. They argue that U.S. ratification of the U.N. Charter or the North Atlantic Treaty after World War II made us part of a ‘new world order’ in which member nations can no longer ‘make war,’ in the classic sense.”

Because of paragraph 2, I see nothing extraordinary in the legal argument that the United States is bound by the U.N. Charter and the North Atlantic Treaty. The certain way out of the legal argument and the “new world disorder” is for the U.S. Senate to repeal approval of the U.N. Charter and the North Atlantic Treaty.

—Earl Zarbin
Phoenix, Arizona

David Mayer replies:

The “Supremacy Clause” of Article VI, paragraph 2, notwithstanding, there is one and only one way in which the U.S. Constitution can be amended, and that is by the procedure stipulated in Article V. Neither the U.N. Charter nor the North Atlantic Treaty can give the U.S. president powers he does not have; the sole source of presidential power is the U.S. Constitution. The Constitution provides that Congress alone has the power to declare war, and that power (to be meaningful) today means the power to decide where and when U.S. military force should be used offensively; the president has only the power of commander-in-chief, which (properly viewed) is the power to determine how, not where, U.S. military force is used. Constitutionally, then, prior to any U.S. military involvement under either U.N. or NATO auspices, Congress should debate and vote whether or not to commit U.S. troops: under our constitutional system, it is a question to be decided by the legislative, not the executive branch, of the U.S. government. We needn’t repeal our ratification of either of these treaties (although there may be other good reasons for doing so) in order to follow the separation of powers mandated by the Constitution.

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