Constitutional illiteracy threatens nuclear war

Never in the history of the United States have so many known so little about the United States Constitution

In The Washington Post, (December 26 op-ed), Jon Wolfsthal, a former member of the National Security Council obligated to defend the Constitution, asserted that “whoever is sworn in on Jan. 20, 2025, will immediately be vested with the sole legal authority to use the country’s nuclear weapons.” Nothing in the Constitution justifies such an alarming assertion.

It would have been news to George Washington, who presided over the Constitutional Convention and maintained that the Constitution “vests the power of declaring war with Congress; therefore, no offensive expedition of importance can be undertaken until they have deliberated upon the subject and authorized such a measure.” James Madison, the Father of the Constitution, elaborated, “In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department. … War is in fact the true nurse of executive aggrandizement. … The strongest passions, and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honorable or venial love of fame, are all in conspiracy against the desire and duty of peace.” James Wilson, delegate to the Constitutional Convention and future Supreme Court justice, explained to the Pennsylvania Ratifying Convention, “This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress, for the important power of declaring war is vested in the legislature at large.”

There were no dissenting voices to these authoritative interpretations of the “declare war” clause.

The clause’s authors were not naive. They understood it permitted the president to respond to sudden attacks on the United States that had already broken the peace without awaiting congressional action. But the clause prohibits the president from starting a nuclear war. The prohibition should be fortified by a concurrent resolution warning that a violation would be treated as an impeachable high crime and misdemeanor by Congress, warranting the president’s removal from office.

The Constitution answered Mr. Wolfstahl’s worry 236 years ago.

Bruce Fein, Washington

The writer, an associate deputy attorney general under President Ronald Reagan, is the author of “Congressional Surrender and Presidential Overreach.”