Why Not Declare War?

Earlier today I watched talking heads debate whether President Obama exceeded his authority by committing US forces to military operations in Libya.

This is a continuation of what seems a perpetual argument over executive authority and the provision of the US Constitution granting Congress the authority to declare war.

The contention that the president must get a declaration of war before commencing military action is as bogus as the contention that the Second Amendment grants individuals the personal right to own firearms. In fact, there is a long-forgotten connection between the two provisions of the Constitution.

Since 1798, the United States has intervened with military forces in overseas conflicts or potential conflicts about 250 times. The US Navy History Center provides a partial list here. Of those conflicts, only in five instances did the United States issue a declaration of war.

Our first armed conflict overseas was our quasi-war with France from 1798 to 1800. The action was mostly at sea, but we landed naval and marine forces on some Caribbean islands of France.

Our second overseas military action was the First Barbary War (against Tripoli) from 1801 to 1805. ("From the halls of Montezuma to the shores of Tripoli....")

So why was there no congressional declaration of war in either of these two conflicts, both undertaken under presidents who were founding fathers? The answer is so simple and obvious, you may think it can't possibly be true.

From the beginning of the American Republic, we had two military departments: the Department of the Navy (including the Marine Corps) and the War Department. If the military action required significant forces from the War Department, there was a declaration of war. If it could be handled by the Department of the Navy by itself, there was no declaration of war.

There was a logic to this. From our founding in 1789, Americans had a deep distrust of standing armies. We based our defense policy on state militias consisting of "the people" trained to bear arms - or at least all white males aged 18 to 45 years. All members of the militia were required by federal law to provide uniforms, weapons and powder at their own expense. Procedures were first spelled out in the Militia Act of 1792.

One of the purposes of the first federal census of 1790 was to determine, state by state, how many citizens there were of military age.

With a small standing army, the only way to mobilize for an expeditionary force was to call up forces from the state militias. A formal declaration of war laid the foundation for such a call up.

This was done for the War of 1812, the War with Mexico, the Spanish American War, World War I and World War II.

Now we have a large standing army and a national guard integrated with that standing army into the "total force concept." The struggle against a large standing army, reflected in the Second Amendment, has been lost. Is it time to rethink our constitutional arrangements for defense?