Have you noticed lately that everyone thinks they’re a Constitutional scholar? The Tea Party people decided to stage a reformation and affirm the priesthood of all readers. They like to discuss their interpretations — also known as right interpretations — at all times. Then there are the bloggers and talking heads that discuss the Tea Partiers…and various political issues. They make a big deal about what others say about the Constitution and then offer their own two cents in order to “fact check.” There are also journalists who like to report politician’s interpretations and then remind them of these later when those positions have been abandoned due to their inconvenience. Everyone’s an armchair analyst. I will leave you to determine to which category I belong.
The President — who actually is a Constitutional scholar — stated during the 2008 election that he did not think that grand document authorized the executive to launch a military action without Congressional approval, sans immediate and imminent security threat. I’m not sure where he gets that. The Constitution says the Congress has the power to declare war, but it doesn’t say anything about military actions that do not qualify as full-blown campaigns. Even in the founders’ day, governments sometimes engaged in battles or martial action without a declared state of war. Americans frequently had armed conflicts with Native Americans without declaration of war, and President Polk sent troops to occupy/claim Texas well before Congress declared war on Mexico (although there were no actual engagements prior to the declaration). We never declared war on Hawai’i but the Marines went in to support the overthrow of the native government anyway. Of course, more recently, there have been numerous military actions in places ranging from Korea to Afghanistan that were not sanctioned “wars.” In 1983, President Reagan sent troops to Grenada, even though this was a “flagrant violation of international law” according to the United Nations. Now, the U.S. has become involved in a military action in Libya, and the press has set upon the President for betraying his previous claims about the constitutionality of such. Congressmen — eager to protect their territory and authority — have joined in the criticism and deem the involvement unconstitutional. Even a local wrote in to my hometown paper to render his verdict in a letter to the editor. Everyone wants to talk about the Constitution and law.
I want to talk about the history. In colonial times, the Barbary pirates of Northern Africa dominated the Mediterranean Sea, and anyone wanting to run ships full of cargo through the area were their prey. The only way around this was to pay a tribute (read: bribe) to the pirates to let you pass. Since we were allies of the French during our Revolution, we benefited from their protection when our fledgling independent maritime endeavors began (Of course, previously, we sailed under the [first] Union Jack with British protection.). After gaining full independence, however, we found ourselves in the same boat as other trading countries. We began paying off the pirates then too. When Thomas Jefferson took charge, however, things changed. Jefferson initiated what became the First Barbary War (1801-1805). We call it a war, but we never did actually declare the same. Ironically, it began when the leader of Tripoli, of all places, demanded a new payment after Jefferson took office. He refused. Tripoli declared war, but Congress opted just to authorize expenditures for military action without the declaration. Jefferson asked more than once for authorization, but repeatedly, Congress declined to give it. Instead, it just approved action to resolve the issue — and probably wouldn’t have done that much if Jefferson hadn’t pressed it. With the aid of five hundred paid mercenaries then, the U.S. Marines obtained our first foreign military victory in this conflict (“to the shores of Tripoli…”). The U.S. Government ended up paying a ransom to get American prisoners back afterwards anyway though, and we signed a treaty to end hostilities significant for the fact that it expressly states ours is not a “Christian nation” and we have no religious beef with the Muslim people. As a consequence of the “war,” the Navy and Marines remained permanent departments within the federal executive, despite the fact that they weren’t sufficiently developed to have us at the ready when the War of 1812 came shortly thereafter. On the heels of that, it wouldn’t be long again before they were active in the Second Barbary War (1815).
The moral of the story is that we have been hostile with Tripoli/Libya for a long time. We are still plagued by pirates in the Mediterranean two hundred years later. From our earliest days, presidents have ordered military actions without the benefit of declared war. When the matter has come up in court, the judiciary has refused to get involved — usually falling back on the lame claim that if the Congress really objects to the military action, it has the power to cut off funding for it (the courts being apparently unaware of ways around that, demonstrated at least by Charlie Wilson and the Reagan Doctrine and the Iran-Contra Affair). The history here shows that all the armchair scholarship aside, presidents have repeatedly sent troops abroad to fight without the okay from Congress, and no one really does anything about it. The talking heads, politicians, and Average Joes can complain, but that’s about all to which it will amount. Eventually, something else will dominate the news cycle and the Libya issue will join the other “police actions” that litter our past. If you’re really upset about U.S. intervention there and want to take it out on someone, I suppose you can blame Jefferson — he did start the whole thing.