33. Article 43 Paragraph 3 of the Charter of the United Nations provides that all resolutions or agreements of the United Nations Security Counsel “shall be subject to ratification by the signatory states in accordance with their respective constitutional processes.” 34. Article 43 Paragraph 3 of Charter of the United Nations was included specifically to allay concerns that prevented the United States of America from ratifying the League of Nations Treaty in 1919. 35. That treaty risked crowning the President with the counter-constitutional authority to initiate warfare. On November 19, 1919, in Section II of his Reservations with Regard to Ratification of the Versailles Treaty, to preserve the balance of power established by the United States Constitution from executive usurpation, Senator Henry Cabot Lodge resolved as follows: The United States assumes no obligation to preserve the territorial integrity or political independence of any other country or to interfere in controversies between nations -- whether members of the League or not -- under the provisions of Article 10, or to employ the military or naval forces of the United States under any article of the treaty for any purpose, unless in any particular case the Congress, which, under the Constitution, has the sole power to declare war or authorize the employment of the military or naval forces of the United States, shall by act or joint resolution so provide. The rejection of Lodge’s reservations by President Woodrow Wilson and his Senate allies insured defeat of the treaty. 36. Section 2(c) of the War Powers Resolution of 1973 clarifies Presidential authority to undertake military action as follows: The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces. 37. In United States v. Smith, 27 F. Cas. 1192 (1806), Supreme Court Justice William Paterson, a delegate to the Federal Convention from New Jersey, wrote on behalf of a federal circuit court: There is a manifest distinction between our going to war with a nation at peace, and a war being made against us by an actual invasion, or a formal declaration. In the former case it is the exclusive province of Congress to change a state of peace into a state of war.
Posted on: Mon, 09 Sep 2013 15:52:36 +0000
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