We're a republic, after all

The VodkaPundit worriedly recommends that we read Michael Kelly's latest column, and comment on it.

What I find to worry about is that all the mechanism that Kelly thinks necessary exists already, and has long before 11 September 2001. The current conflict about it represents gross misunderstandings by both sides.

We are at war, but have not declared war on anybody. Some commentators find this a meaningless and outmoded step, but I think it is not -- internally. Let the Congress say (at the behest of Bush or on its own initiative) that we are actually, legally, at war, and a lot of the legal basis for the objections of the political left vanish out from under them.

You object that al-Qa'ida, not being a country, cannot have war declared on it? Fine; let the Congress pass a joint resolution declaring them to be the enemies-general of the U.S., and indeed of all humanity. You object that such a resolution would have no legal force? OK, let us pass a Constitutional amendment stipulating that it does; that what the amending mechanism in the Constitution is for.

(A lot of the aura of sacredness surrounding the Constitution is there because the courts are wont to throw it out in considering the permissibility of legislation and executive action, rather than requiring its explicit amendment. Consider the scope of amendments necessary to bring current practice in line with a strict constructionist view of the Constitution.)

A legal state of war, or even of Congressionally-mandated national emergency, would have two great advantages:

It would take us out of the legal limbo represented by the back-and-forth debate (if I may dignify it with that word) of "That's a violation of civil rights!" "It's necessary in war time!" "But we're not at war" and so forth.
It would have, in theory at least, a well-defined end; when the Senate ratifies a peace treaty, or the Congress revokes its declaration of war, the war is (legally) at an end.

I have previously suggested that Bush go before Congress and say, "I want you declare war on countries X, Y, and Z", and then let the Congress debate the matter on C-SPAN. If Bush is reluctant for whatever reasons, good or bad, then some member of Congress, Republican or Democratic, ought to stand up and say, "This legal limbo is no good; let us consider a formal declaration of war. I may be against it, but I still think that a legal state of war is better than giving the administration all of the powers without any of the trappings."

Who will do this?

John "Akatsukami" Braue Wednesday, June 12, 2002