“War Never Changes” the tag-line for the Fallout videogame franchise. Within that fictional world, it means that even when countries and governments blow each other off the map, a brute with a club is still more powerful than a mayor with a plan. The player is invited to bash skulls just as much (or more) as play politics. “War never changes” means that the reasons for war, human flaws like fear, ambition, and hatred, are constant, regardless of how much society advances. In Fallout, it’s a reminder that even after the end of the world, people are still people, and they will still go to war.
But I want to talk about it in a different context. Clausewitz calls war “politics by other means”. And where there is politics there are lawyers. War is a legal thing. And the legality of war is international, and therefore Constitutional. And the Constitution is clear about who starts, fights, and ends wars for the United States.
Our Constitution is a system. It tries to balance the needs of people, of states, of the country, and of the law. When it comes to Wars: The people’s House – the House of Representatives – declares them. The Executive – the President – fights them. And the states’ ambassadors – the Senate – ends them. And the Law keeps everyone following the rules. Except when all the players agree to ignore the rules.
Lawyers are the plumbers of society. Their domain is infrastructure. And they’re reasonably good at it, all things considered. The Law, and lawyers, are there to make things not fall down, not fall apart. That is why War is a legal thing. If it weren’t, and it was just “brute with club” on demand, things would fall apart. You can’t make plans when a club has the last word. Our current civilization, with its roots in Europe and China and India, is fundamentally about making plans. Civilization does not want war-on-demand. We plumbed in the infrastructure to prevent it.
In 1973, the United States Congress tried to add some new plumbing, the War Powers Resolution, which re-iterated that only the people, via their Representatives in Congress, get to decide to go to war, even little-w wars. This was a pretty solid attempt to put some limits on the President unilaterally deciding to start or join a war. Gerald Ford, Ronald Reagan, George H. W. Bush, Bill Clinton, Barack Obama, Donald Trump, and Joe Biden each broke this law and didn’t get impeached for it.
Agreeing to ignore the law is easier for Congress than upholding it.
Nonetheless, these were all little-w wars. They were not “real” from a legal sense. They do not cross the boundary from Peacetime to Wartime. There are no Wartime powers of the Executive branch that are unlocked by them.
Wartime grants the Executive extraordinary tools. Powers to regulate trade, to seize the assets of enemy nations and their citizens. Powers to detain, relocate, deport. To conscript bodies into service. To commandeer the railroads, the airwaves, the very lines of communication. These are the powers of a war chief.
These are kingly powers.
These are the powers we rose against in 1776. The powers of Empire.
And yet: the nation born of that rebellion, with words as weapons and parchment as battlefield, now wears the mantle of Empire. Not openly. Not with the visible trappings of conquest or colonization. But as shadow. As hegemony. As a fog that settles over maps without drawing new borders.
There is no moral foundation for Empire in the Declaration of Independence. None. That charter speaks of equality, of inalienable rights, of laws drawn not from power but from consent. Empire shatters those premises. To become an empire is to break faith with the principles that made us a nation.
Here is where the American crisis begins.
If equality is conditional, it is not equality. If rights are revocable, they are not inalienable. And if law does not spring from morality, then it is immoral. A government built on such law, drawing its legitimacy from its own perversion, cannot be just. It is a parasite of its founding spirit.
The American Empire does not conquer land. It does not make citizens of its subjects. Instead, it makes offers that cannot be refused. It separates people by class, by race, by geography, by usefulness. It speaks of peace and wages permanent war. It makes alien the inalienable.
And war, that ancient engine of Empire, is no longer declared. Not officially. The last declaration of war issued by Congress was in 1942. The war with Japan officially ended on April 28, 1952, when the Treaty of San Francisco took effect.
Legally, we’ve been at peace ever since.
Yet since that day, the United States has initiated or engaged in hostilities at least thirteen times—each lasting beyond the 90-day limit of the War Powers Resolution of 1973. None were declared wars. But they killed over 100,000 Americans. More than 1.5 million enemy combatants. Over 4 million civilians.
Six million dead.
And still not a war.
Not legally.
Because to declare war is to recognize sovereignty. To declare war is to acknowledge limits. To declare war, in this constitutional republic, is to implicate the people in the decision to kill.
But if we the people do not declare war, we do not have to look in the mirror.
The Declaration of War would bring us face to face with the Declaration of Independence. And in that confrontation, something would break. One of them cannot survive the other.
War Never Changes.
Our American Experiment is testing the hypothesis that a people can be their own king. Un-owned by Lords. Unclaimed by Gods. Autonomous. We base this on a claim to authority. That it is our Divine Right not to rule but to be Free, to have the Liberty to become our best version, to be the ancestors of our own lineage. To be secure in these rights. So we can plan.
Civilization depends on planning and you cannot plan when the club has the last word. Nor can you use a club to guarantee our ability to plan.
Our club defends. It protects those who cannot protect themselves. It does the right thing, no matter the cost. It keeps us un-owned. Autonomous. Free. Equal. Liberated.
We do not wield the club to rule. We do not use it to guarantee our ability to plan. We wield it to protecting one thing worth fighting for:
The idea that a people can be their own king.