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The Supreme Court Failed Us On Vietnam

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With last weeks’s beginning of Ken Burns’ new documentary about the Vietnam War, the war will be brought back to the front burner for national discussion and debate.

There is one thing that is crystal clear and indisputable about the U.S. intervention into Vietnam’s civil war: The intervention was illegal under our form of government. That’s because it was waged in violation of the U.S. Constitution, the document that sets forth the powers of U.S. officials, including those in the military and the CIA.

When the federal government was called into existence by the Constitution, its powers were limited to those set forth in the document itself. If a power isn’t enumerated, then it cannot lawfully be exercised.

The Constitution does not give the power to initiate war to the president. The Framers and the American people who ratified the Constitution did not want the president or the military making that decision. That’s why the Constitution delegates the power to declare war to Congress, the elected representatives of the American people.

Thus, if the president initiates war against another nation without a congressional declaration of war, he is acting unlawfully under our form of government.

The interesting question is: Why didn’t the U.S. Supreme Court and the federal judiciary declare the U.S. war on North Vietnam to be unconstitutional?

Ever since the Supreme Court’s decision in Marbury vs. Madison in 1803, the Court has assumed the authority and responsibility to declare acts of the president or laws enacted by Congress to be unconstitutional. And ever since Marbury, there have been many cases in which the federal courts have declared presidential actions or congressional laws unconstitutional.

Yet, when it came to U.S intervention into the Vietnam War, the federal judiciary declined to act. Why?

The issue was certainly clear-cut. The Constitution required a congressional declaration of war against North Vietnam. There was no congressional declaration of war against North Vietnam. Therefore, by initiating a war against North Vietnam, the president, the Pentagon, and the CIA were acting illegally under our form of constitutional government.

The federal judiciary has long rationalized its deference to the Pentagon and the CIA in terms of rhetoric like respect for “the coordinate branches of the government” or by suggesting that federal judges lack foreign-policy expertise or by simply asserting that a petitioners lacks “standing” to bring a legal action to declare a war to be unconstitutional.

In actuality, there is a more fundamental reason for judicial deference to the president and the U.S. national-security establishment.

The federal judges and the Supreme Court justices knew that, as a practical matter, there was no way that the president, backed by the military and the CIA, would comply with a judicial decision declaring the U.S. war in Vietnam to be unconstitutional. They also knew that, as a practical matter, there was no way for the federal courts to enforce their ruling against the president, the Pentagon, and the CIA.

Therefore, rather than expose the impotence on the part of the federal judiciary with respect to that particular part of the Constitution, the federal judiciary decided that it would be more prudent to create an appearance of lacking the authority or jurisdiction to declare the U.S. war in Vietnam unconstitutional. In that way, they could create the façade that the federal judiciary was still the ultimate arbiter of the constitutionality of an action while, in reality, deferring to the overwhelming power of the president, the Pentagon, and the CIA to wage what was clearly an unconstitutional war.

Everyone would have been better off if the Supreme Court and the lower federal courts had not shirked their responsibility under the Constitution and had instead done their duty by declaring the U.S. intervention into the Vietnam War to be unlawful and unconstitutional, even if the president, the Pentagon, and the CIA had ignored the court’s judgment. At least the American people would be able to easily see why President Eisenhower warned the American people of the grave threat that the military-intelligence establishment poses to the liberties and democratic processes of the American people.

Reprinted with permission. 


Jacob G. Hornberger

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.

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