As Long as We’re Talking About the Constitution…

“In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”
Thomas Jefferson

All over the country, and even in the press, the U.S. Constitution is being discussed in regards to the president’s war powers. This is apparently a side benefit of having an empire so corrupt and murderous that many folks are considering impeaching and removing the president who lied us into war and claims unlimited authority to wiretap, kidnap, torture, and murder whomever he likes – his lawyers even insist that the “commander in chief” has the “inherent” and “plenary” authority to crush a child’s testicles to get at the boy’s father. (Really. Click here to read all about it.)

The Constitution is not holy writ, but the government it describes would be a hell of a lot better than the one we have now.

It is a commonly held fallacy that the president of the United States has unlimited authority over this country’s foreign policy. What authority does the Constitution grant the president in this regard? Well, he is to retain civilian supremacy over the military “when called into the actual service of the United States,” and he can negotiate treaties that have no authority whatsoever unless and until ratified by a super-majority of the U.S. Senate. That’s it. There is nothing else.

Congress holds “all legislative powers,” according to the first sentence of the first section of Article One.

One could argue, as Thomas Jefferson did, that the spirit and letter of the Constitution has been corrupted since the first Washington administration, when the president accepted Alexander Hamilton’s view that the new government could do anything not expressly forbidden by the Constitution and signed the law creating the second Bank of the United States – an act that caused Jefferson to resign his position as secretary of state. Even accepting Hamilton’s false premise, as every generation since then has, it is apparent that precisely what is considered forbidden by the Constitution has been about as fluid as George Washington’s interpretation of it and the whims of various politicians in the years since.

No where is this clearer than in the record of America’s wars. Of the five wars that were actually declared by the Congress, as required by Article 1, Section 8, Clause 11, not one was defensive. The war of 1812-14 was the result of Jefferson and Madison’s perfectly constitutional, yet economically and politically suicidal, trade war against Britain. James Madison, the Constitution’s principal author, chose to take an aggressive posture against Britain (while, of course, playing the victim), and succeeded only in getting the Capitol burned to the ground and making Andrew Jackson (who would go on to centralize more authority in the presidency) into a war hero.

It’s too bad Madison ignored his own advice on how to keep the government limited. In 1795, he had argued that America should do its best to avoid foreign conflicts since,

“[O]f all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few.”

The war against Mexico (in which half of that country was stolen) was provoked by U.S. troops as soon as possible after Texas’ entry to the Union. Congress was “notified,” that is, lied to, and declared war after the fact, to the infernal consternation of a congressman from Illinois named Abraham Lincoln. After gaining the presidency for himself, Lincoln turned around and provoked the first shots of the Civil War by sending troops to occupy Ft. Sumter, a tax-collection post in the bay of a state that had declared its independence. According to Thomas DiLorenzo, Lincoln “wrote to his naval commander Gustavus Fox thanking him for his assistance in drawing the first shot.” Congress never did declare war, only that the war the president had started was for the purpose of “preserving the union” – months later.

By the time the Civil War was over, the idea that anything could limit the powers of the federal government was gone forever. The final step from a limited constitutional republic to a single nation-state had been taken – the union had become the nation – the united States, plural, replaced forever by the United States, singular. The right of people to secede from what they consider to be an illegitimate government, articulated so clearly in the Declaration of Independence, had been replaced by the president’s prerogative to conquer them by violent force. (Yes, private slavery is also wrong.)

As soon as the settlement of the West, and the near extermination of the American Indians, was complete, the American empire went looking for foreign colonies to conquer. Apparently, the step between post-constitutional “statehood” and empire wasn’t quite as far as the step from republic to nation-state. Hawaii was taken at 40-inch gun point in 1893.

(Throughout all this is a history of violent intervention in Central and South America that defies imagination.)

The “splendid little” Spanish-American war of 1898, which William Graham Sumner argued actually resulted in the U.S. being conquered by Spain, was sold to the people and the Congress as a defensive response to Spanish sabotage of the battleship Maine – which was, of course, a lie. “Acquired” were Cuba, Puerto Rico, Guam, and the Philippines– where a brutal “anti-insurgency” campaign took the lives of hundreds of thousands, all in the name of “liberation.” There was no constitutional provision for how to suppress insurrections by the subjects of foreign colonies, so the Marines just improvised.

With the arrival of the butcher Woodrow Wilson, favorite of American court historians and thus of state-educated folks everywhere, came a whole “New Freedom,” which included mass arrests, deportations, jailing of dissenters, and all the other staples of a totalitarian reign of terror. He had already invaded Mexico, Nicaragua, Haiti, and the Dominican Republic – all without just cause or congressional declaration – before lying the U.S. into World War I. The suspicious sinking of the Lusitania, a ship full of civilians (and unbeknownst to them, munitions for British forces fighting the Kaiser), was not enough to convince the American people to get involved in the “Great War” in Europe, but when the people were shown an intercepted message known as the Zimmerman Telegram, which showed Germany’s offer of an alliance with Mexico in the event of war with the United States and a promise to help them retake the American Southwest, opinion against Germany hit a fever pitch. How Germany could help Mexico retake New Mexico and Arizona when they couldn’t conquer France, England, or Russia was never explained, but it was enough, and Wilson got his declaration of war.

America’s entry into World War I set the 20th century on a course of death and totalitarianism. As described by Jim Powell in Wilson’s War: How Woodrow Wilson’s Great Blunder Led to Hitler, Lenin, Stalin, and World War II, due to Wilson’s interference, Vladimir Ilyich Lenin and Paul Wolfowitz’s hero, Leon Trotsky, were able to seize power in Russia and create the Soviet Union, and the French and British were able to so humiliate the Germans as to assure the rise of the Nazi death machine.

Between Wilson and his fascist spawn, Franklin Roosevelt, there was an attempted “return to normalcy,” but the incredible consolidation of state power during the Wilson years was far too extensive to be undone, and the Republican administrations of Coolidge, Harding, and Hoover were hardly in a hurry to undo Wilson’s gains. After all, he had just been emulating their conservative socialism.

By the time Franklin Roosevelt and Harry “Lucky” Truman were through, the Constitution was nothing but pretty calligraphy on parchment for folks to reminisce about on the Fourth of July. Through various states of national emergency, the wholesale rewriting of the interstate commerce clause by the courts, and America’s participation in WWII (another war in which the American people were deceived into thinking that our intervention was defensive in nature, though their sons were conscripted when that still wasn’t good enough), Washington, D.C., had permanently established itself as the center of economic and political power in the United States. Garet Garrett called it Ex-America way back then: a massive warfare/welfare/regulatory/national security state, the final reduction of the several states to the status of large counties under “federal” control, a permanent military-industrial complex, and the inheritance of all the Western empires, plus Japan’s. War could now be declared by the president or the United Nations Security Council. The Constitution was no longer amended when politicians decided they needed more power – they just went ahead. The rule of law was dead.

It is impossible to have a limited constitutional republic in a state of perpetual war. Since WWII, the Right has agitated for more foreign conflict – a government’s most effective means of expanding its control – while the Left has sung J.P. Morgan’s song of good democratic government and pushed for the disregard of the limits the law places on the actions of the state. As the historians Gabriel Kolko and Murray Rothbard have shown, the push for “progressive” government regulation of business in the years before World War I and during the Great Depression was led by the big businesses that were to be regulated. They had decided that competing over control of congressmen was easier than competing in a free market. The Left bought it, and continues to. When the Republicans are in charge, the Left is mad at them for “not doing enough.” When Democrats are in power, the Left openly laments that our government doesn’t interfere in people’s lives quite as much as in Europe. Even the most atrocious and aggressive wars are sometimes praised by liberals, who, believing wholeheartedly in the benevolent power of the state to order the domestic sphere, carry that faith over into “humanitarian” and “peacekeeping” roles for the U.S. military around the world. Enumerated powers? Never heard of such a thing.

The Cold War – a neat euphemism for 40 years of constant fear and warmongering – required even those most dedicated to markets and the rule of law to accept a “totalitarian bureaucracy on our shores,” according to the court intellectuals, as the military fought its proxy wars and the CIA installed its dictators overseas. As the Cold War was winding down, the National Security Council was preparing to scrap the Constitution altogether and create a military dictatorship, as detailed in the Miami Herald on July 5, 1987.

When the Soviet menace imploded, the U.S. government created and found new enemies here and abroad to fight in the name of ending the distribution of illegal drugs and stopping aggressive war, beginning with Iraq’s invasion of Kuwait, which American diplomats had, of course, invited.

It is easy to see why the politicians lie us into all these conflicts: Americans don’t want empire and never have. We have continued to believe in the traditions of our nation’s founders, who led a successful rebellion against an empire and created in its place, at least they claimed, just enough government to protect our rights. When the politicians send our families off to war, they must always call it “liberation” and “defending freedom” against the forces of malevolent tyrants in order to disguise our empire’s truly aggressive nature.

With the “war on terror,” we see the brutal face of the $2.5 trillion per year government that has been created in this land, supposedly under this Constitution, in the name of all these good works. Halliburton – which has done such a great job with the ghost prisons overseas – has now been awarded the contract to build domestic concentration camps. In the event of a “Red Alert,” we may very well see the Department of Homeland Security fulfill its destiny as the American National Police Force; the repeal (or reinterpretation out of existence) of posse comitatus; and the deployment of the military’s new Northern Command over the people of this once-free land.

Some may try to pretend that the U.S. has become like the Soviet Union “allofasudden,” under the corrupt direction of recent leaders, but the truth is that our government has been turning into this imperial leviathan for generations, while the citizenry has bought every lie and cheered it on. It has taken the blundering stupidity and ruthlessness of this recent gang to make people see what’s happened – and now it may be too late to do anything about it.

There’s one course left open, and that is the election of the House of Representative every two years. (Look out, they’re trying to destroy that, too.) All bills for raising and appropriating revenue must originate in the House. They finally ended the Vietnam War by refusing to continue paying for it.

The U.S. Constitution provides us with the mechanism to completely purge our government without bloodshed – and we may not have many chances left. We could, theoretically, in this year’s primary elections, send the machine candidates in both parties home and completely purge the House of Representatives (current reelection rate 99 percent). But will the choice between republic or empire be on the ballot in 2006?

Author: Scott Horton

Scott Horton is editorial director of, director of the Libertarian Institute, host of Antiwar Radio on Pacifica, 90.7 FM KPFK in Los Angeles, California and podcasts the Scott Horton Show from He’s the author of the 2021 book Enough Already: Time to End the War on Terrorism, the 2017 book, Fool’s Errand: Time to End the War in Afghanistan, and the editor of the 2019 book, The Great Ron Paul: The Scott Horton Show Interviews 2004–2019. He’s conducted more than 5,500 interviews since 2003. Scott’s articles have appeared at, The American Conservative magazine, the History News Network, The Future of Freedom, The National Interest and the Christian Science Monitor. He also contributed a chapter to the 2019 book, The Impact of War. Scott lives in Austin, Texas with his wife, investigative reporter Larisa Alexandrovna Horton. He is a fan of, but no relation to the lawyer from Harper’s. Scott’s Twitter, YouTube, Patreon.