Constitution Daily

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The Vietnam War and Its Constitutional Legacy – Part I

September 19, 2017 by Lyle Denniston


This is the first of several articles that Constitution Daily will publish on the constitutional legacy of the war in Vietnam, with each article focused on a theme that is being explored in episodes this week and next of the PBS documentary, “The Vietnam War,” by Ken Burns and Lynn Novick.  The broadcasts began Sunday night. This article is keyed to the broadcast tonight, on the Vietnam conflict as it unfolded in 1964 and 1965.

The constitutional controversy over whether wars can only be started by a formal declaration by Congress, and not by the President, has been on America’s mind for generations, and a version of the dispute was, in fact, debated in Congress as recently as last week.

It might be argued that the dispute probably began when President James Polk used the U.S. military so aggressively along the border with Mexico in 1845 in a feud about land ownership that Congress had no choice but to enact a formal declaration after the reality of war already existed.

A beginning that is totally free of ambiguity came when President Harry Truman deployed U.S. troops to South Korea in 1950 after North Korean troops had invaded.  Congress never gave formal consent to the Korean War, and Truman cited only a United Nations resolution calling for an international “police” force to answer the invasion.  The Constitution’s Article I, of course, does not treat the UN as the source of American war-making authority, however valuable cooperative international action may be in response to aggression.

“Undeclared wars,” in a constitutional sense, have become the norm since then.  Presidents have quite reluctantly conceded that Congress should have some role, but not the decisive one that the Constitution seems to contemplate in the assignment of explicit war powers.

That enhancement of presidential authority is one of the most vivid constitutional legacies of the Vietnam War.  Another is the pervasive effort by government officials, from the president on down, to far exceed the norms of wartime propaganda by intentionally manipulating the public narrative when a war effort goes badly.

Still another legacy, to be explored in a later article, is related both to the way that wars start and to the way they continue for years.  That is the widespread loss of fervent patriotic support for the war effort, replaced by a fervent anti-war sentiment on the home front.  For the Vietnam War, that seems to have had its origins in 1965 at a small protest demonstration outside a chemical weapons factory of Dow Chemical, the main – and, later, the only – supplier of one of the fiercest weapons of war, the exploding liquid called “napalm.”

Looking back now to the Vietnam War and to its constitutional significance, it seems clear that one of its most significant legacies has been the onset of wars by presidential choice and action, only later ratified by open-ended congressional resolutions that send a blank check of authority to the White House but do not -- and cannot -- mobilize the sentiment of the whole nation as only declarations of war could and in past wars actually did. 

Such resolutions, in effect, unite in the presidency both the power to start wars and then to manage them with unchecked discretion, even though those who drafted the Constitution tried to separate those powers.

A small commitment of military advisers to a threatened foreign ally can rapidly escalate into the deployment of masses of soldiers and weaponry; congressional acquiescence is practically always assured by the political risk of resistance.   A political check on war, if there is to be any, shifts from Congress to the people in the streets of America.

Such resolutions can ratify wars that last even longer than any of the five past wars authorized by formal declarations of war.  This year, 16 years after Congress reacted to the terrorist attacks on the U.S. on September 11, 2001, by passing an anti-terrorism authorization for the use of military force abroad, that resolution and another enacted a year later are still the constitutional foundation for an ongoing war in Afghanistan, lingering conflict in Iraq, and a ceaseless global “war” against terrorism being waged in a variety of places, especially in Syria.

Just last Wednesday, the United States Senate again proved the durability of such congressional enactments.  By a vote of 61 to 36, the chamber refused to repeal the 9/11 resolutions at the urging of Republican Senator Rand Paul of Kentucky, who thought that Congress should at least  say something fresher about keeping U.S. troops in combat zones overseas.

Where, and why, did this begin?

In 1964, President Lyndon Johnson fretted that “we’re not getting it done” in the war in Southeast Asia, and in fact that “we’re losing,” according to the vivid testimony of the current PBS documentary on that war.  But he was fretting only in private; he did not want to share his worries with the American people in the final months of his campaign to get reelected.

One of his advisers, McGeorge Bundy, suggested that a military authorization resolution should be drawn up, ready to send to Congress if the president decided he should deepen the involvement in Vietnam.  On August 2, 1964, in the waters known as the Gulf of Tonkin, off the east coast of Vietnam, something happened – its details are still debated even today – that led President Johnson to act to widen the war.  In fact, he actually chose to make it America’s war, no longer a war to support a shaky South Vietnam government in Saigon.

A U.S. destroyer, the Maddox, was patrolling the Gulf to gather intelligence on what North Vietnam was doing militarily.  Its commander reported that his vessel had been fired upon by a North Vietnamese patrol boat.   History shows that Johnson’s top military advisers wanted him to respond immediately, to retaliate; he refused.  From there on, what unfolded in the Gulf is still something of a mystery. 

American intelligence reported that there were new plans by the North Vietnamese to attack the Maddox again, and also to assault another U.S. vessel, the Turner Joy.  Whether true or not, that intelligence was sufficient for President Johnson.  Ready now to act, he spoke to the nation, denouncing “open aggression on the high seas against the United States.”  The military response, he promised, would be “limited and fitting….We seek no wider war.”

But wider war, it turned out to be.  For the first time, American planes began bombing sites in North Korea.

After an American pilot was shot down and captured in the North, Johnson moved.  He sent to Congress the resolution Bundy had drafted.  Five days after the Maddox had been targeted, Congress consented.  In the PBS documentary, the plainspoken Johnson is quoted as saying that the Gulf of Tonkin Resolution was “like Grandma’s nightshirt, it covers everything.”

With only two “No” votes in the Senate and none in the House of Representatives, Congress authorized the government to “take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression” by North Vietnam.

The election was still three months off; in the following weeks, the president’s aides and his military advisers pondered how to use the new authorization.   What did “necessary” mean?  That was solely for the President and his advisers to decide.

Two days before the election, Johnson refused a new request by the military to go all-out in the use of the permission from Congress.   After his landslide reelection victory over Republican Barry Goldwater, Johnson told the nation he planned only a “graduated response” to North Vietnam’s aggression.

From the military on the ground in the land of deep jungle-like foliage and rice paddies, the land that also was the scene of a constant but mostly undetected flow of Viet Cong guerrillas and regular North Vietnamese Army soldiers down the “Ho Chi Minh trail” into the South, two messages were reaching America.

For the public narrative, the now oft-repeated refrain was that the conflict was going well, so well that “there is light at the end of the tunnel.”  In Vietnam, even the new U.S. commander, General William Westmoreland, was telling the troops – in another message relayed back to the homefront -- that “we’re on the five-yard line,” soon to score victories.

For the White House and the Pentagon, the narrative was totally different: the U.S. forces, as Johnson had worried earlier, were actually losing, and all would be lost unless there was a huge buildup of troops and war supplies, including the means to drop from the air billions of gallons of earth-scorching napalm and to spread “Agent Orange,” another Dow concoction entirely capable of clearing away the enemy’s hiding places among the foliage.  Both chemicals, aimed at the enemy, often hit within American battle lines with devastating injury, even death.

After four U.S. soldiers were killed in a downed helicopter near the village of Bien Cha, and the enemy fiercely assaulted the survivors, what those on the scene had witnessed was a rout, but the word from the military was that our soldiers were in the process of defeating the Viet Cong.

In Washington, the President’s advisers were coming to the conclusion that the United States had only two options now: seek a negotiated settlement, or use overwhelming military might to subdue the enemy and save South Vietnam.

The second option was chosen, and “Operation Rolling Thunder” began in March 1965 – the systematic bombing of North Vietnam.  Johnson insisted that this effort be kept secret from the American people, that they be told instead that the war was not being widened.

The next necessary move, General Westmoreland told his civilian superiors, was boots on the ground – that is, American combat forces, to wage war in their own way, not as merely supporting elements for the South Vietnamese army.  That had been debated on the ground in Vietnam, but Westmoreland prevailed.  Johnson, according to the PBS documentary, told his aides “there ain’t no daylight,” but he sided with his general, and the Marines went in – first three battalions, then two more – and so on and on. 

The President told the generals they were now to fight this war in their own way, but he told his aides the people of America could not be told it was now their nation’s war, from village to village, from military staging areas to helicopter landing zones.   In a speech at Johns Hopkins University in Baltimore, Johnson told his audience that there had not been a change in the military’s mission.

In Vietnam, one Marine officer – recalling years later – said he had a radio bringing him Johnson’s speech at the same time he was communicating with pilots aloft to hit the area with napalm.  “It was surreal,” he said on the PBS broadcast.

By this time, however, there would be another narrative that was beginning to reach the American people back home.  Many journalists flooded into Vietnam, able to tell just what they saw because there was not the usual wartime censorship imposed by the military.  Riding along on helicopters, or trudging amid the platoons on the ground, the reporters told their readers and listeners how badly the war was actually going for the troops.

CBS reporter Morley Safer, with the troops on a patrol near Danang, witnessed U.S. and Vietnamese forces burn down a village, killing a few women and a child.  He told the story, and it reached his audience in America.  The President, according to the PBS documentary, telephoned the head of the CBS network and accused him – with vivid profanity – of undermining the war, and – in a futile way -- demanded that Safer be fired.   Some of the American troops were said to dismayed by the journalists’ lack of what they thought should be patriotism; some, according to the PBS broadcast, referred to Safer’s network as the “Communist Broadcasting System.”

Soon, after a lethal Viet Cong ambush on the landed troops from U.S. helicopters at a vulnerable open clearing in the Ia Drang Valley, the American casualties after some three days of close combat totaled 79 dead and 121 wounded.

That story, told to the people at home by the embedded journalists at Landing Zone X-Ray, ran side by side in newspapers and on broadcasts with news of the continued arrival of waves of thousands upon thousands of American soldiers and Marines.  It was now, definitely, “Johnson’s war.” Congress had allowed him to start it anew, with a totally free hand.   The constitutional shift of power, begun with Truman and the Korean War, was now settled.

On Christmas Eve 1965, the President halted the bombing in the North, attempting to show that the United States could be reasonable and would welcome negotiations toward peace.  At the same time, in his headquarters in the battle zone, General Westmoreland was laying plans for widening the war even further in the New Year.

At home, opposition to the war – now very evident, and especially so with student protests on college campuses – was widening just as the war had been.  Within that movement, a small band of lawyers were making plans to ask the courts to stop the war: it was undeclared, they would argue, and it was therefore unconstitutional.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on


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