Our Founding Fathers found this to be one of the most important discussions at the time, and they were quite concerned about giving the power to declare war to the President. They were concerned an executive with that kind of power could choose to rule like a King.
Before sending our young men and women into battle, we should have a thoughtful and honest discussion about the ramifications, authorization, and motivations for war.
.. Article I, Section 8, Clause 11 of the Constitution grants the Congress and Congress alone the power to declare war. The President is given the power to direct the military only after the Congressional declaration has been passed.
This is our law and was generally our practice. However, like in many areas, we began to abandon our founding principles for expediency. We have not declared a war since World War II and we have too often used our military without even a more modest Authorization for the Use of Military Force.
The Left Distorts Originalism to Attack Judge Gorsuch
In other words, when the equal-protection clause was enacted, what were the words understood to mean? Were they understood to sweep away, say, restrictions on women in combat? Were they understood to mean that legislatures couldn’t enact laws that prohibit certain sexual practices? Drafters create a text, and that text has an original, understood meaning. That, in a nutshell is what “originalism” means.
.. The lesson from the legal Left — a lesson I was very clearly taught by multiple professors in law school — is that when a case is of sufficiently critical social importance, standard rules of legal interpretation give way to the greater demands of social justice. Here’s how one judge put it to me in his chambers: “You should always know the law, and you should always know what’s right. Do what’s right.” This would be an appealing notion if judges possessed godlike powers of judgment, but they don’t; they’re flawed like every other human. So it’s an appalling abuse of power.
.. To smear Neil Gorsuch, the Left has created and attacked a straw man.
A Tree Grows in Canada
The British North America Act, a law from 1867 that served as Canada’s constitution, provided for the appointment of “qualified persons” to the Senate. In the 1920s, with a growing feminist spirit abroad in the land, women had the temerity to assume that “qualified persons” might include them. When Emily Murphy, a leading feminist who was a judge in Alberta, sought an appointment, the prime minister turned her down on the ground that women were not “persons” within the meaning of the law.
.. Driving the point home, Lord Sankey went on to say: “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.” Women, the court concluded, were indeed persons. Soon enough, they were senators as well.
.. “You have to recognize that if the framers knew all the specifics of a just society, they would have written them down,” Justice Kennedy told Jess Bravin of The Wall Street Journal in an appearance earlier this month at the University of California’s Washington Center. The Constitution’s framers, the justice said, “used words that appeal over time to our sense of justice and our sense of freedom.”
.. And the Voting Rights Act decision, as Professor Johnsen goes on to point out, was likewise the opposite of originalist, rejecting the court’s longstanding deference to the role of Congress in enforcing the 15th Amendment’s guarantee of the right to vote.