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The Power to Violate the Constitution

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Given President Obama’s refusal to comply with the Constitution’s declaration-of-war requirement in his war on Libya, perhaps this would be a good time for Americans to reflect upon the underlying philosophy of constitutionally limited government, especially as compared to dictatorship.

When the Framers proposed to call the federal government into existence with the Constitution, many Americans were not very excited about the idea. They were concerned that this new federal government would ultimately end up being like most other governments in history — dictatorial and tyrannical — and that the American people would end up losing their fundamental rights and liberties at the hands of their very own government.

Our ancestors in 1787 didn’t view their own government has their provider, their protector, their parent, their big brother, their friend, or their god. They instead considered their own government to be the biggest threat to their fundamental rights and liberties. That’s why they weren’t very excited about letting the federal government come into existence with the Constitution.

Proponents of the new government argued that the Constitution set forth the terms and conditions under which the government would be permitted to operate. It could never be a dictatorial government, they said, because it would be permitted to exercise only those limited powers that were enumerated in the Constitution itself.

Still, Americans weren’t convinced. Their rights and freedoms were of the utmost importance to them. When they finally went along with the deal, it was on the condition that immediately after the Constitution was ratified, a Bill of Rights would be enacted, one that would expressly prohibit federal officials from infringing upon people’s fundamental rights and liberties.

One of the most important restrictions in the Constitution dealt with the power to wage war. The Framers understood what happens with rulers. Their get filled with pride, arrogance, and hubris and especially don’t like being “pushed around” by tin-pot foreign dictators, especially ones that tease and taunt them or, at the very least, fail to show proper deference. The inevitably temptation, of course, is to go after such dictators through the use of the government’s military forces, much as President Bush did with Iraq’s Saddam Hussein and President Obama has done with Libya’s Moammar Qaddafi.

But as Madison pointed out, of all the enemies to liberty war is the biggest. Why? Because war provides the crises, chaos, and fear that give government officials the opportunity to exercise all the powers by which people’s rights and freedoms are taken away — centralization, bureaucratization, regulation, taxation, debt, inflation, militarism, suppression of speech, arbitrary arrests, roundups, indefinite detention, and dungeons and prisons.

So, the Framers decided to make it difficult for the president to wage war. To accomplish that, they delegated the power to wage war to the president but delegated the power to declare war to the Congress. The idea was that under the Constitution, the president would lack the power to wage war without first securing a declaration of war from the Congress.

So, where does that leave us? It leaves us with a president who has chosen to deliberately ignore and violate the law that the Framers and our American ancestors imposed on him and all other federal officials. That law is the Constitution, the law that controls the actions of government.

By deliberately ignoring and violating the Constitution’s declaration-of-war requirement, what other conclusion can be drawn than that the president has crossed into the area we know as dictatorship? After all, what is dictatorship if not the power of the ruler to do whatever he wants whenever he wants with impunity, especially start wars that then provide the government with unlimited opportunities to infringe upon the rights and liberties of the people.

Ironically, that was precisely what our ancestors feared when the Constitution was proposed to them. That was why they were so skeptical about approving the deal.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.