In last week’s Constitution 101 article, we looked at war powers and determined that it was the role of Congress, not the president, to initiate war.
Article I Sec. 8 delegates Congress the power to “declare war.” Article II Sec. 2 designates the president “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” These two roles stand separate and distinct from one another.
But what does it mean to “declare war?” Does the term leave some wiggle-room for the president to initiate “limited” military operations? Does declare war only refer to a “formal declaration” of war, leaving some discretion to the executive?
Thomas Jefferson didn’t believe so, saying in a 1789 letter to James Madison that the Constitution creates “one effectual check to the Dog of war, by transferring the power of letting him loose from the executive to the Legislative body.”
Saikrishna Prakash did an in depth study of the founding era understanding of “to declare war” for a 2007 Cornell Law Review article. He concluded that that “evidence from the eighteenth century establishes that to declare war was to decide to enter a war.”
In the eighteenth century the power to declare war was a power to decide whether a nation would wage war. Materials from that era reveal that any decision to wage war, however expressed, was a declaration of war. The commencement of warfare was regarded as the surest declaration of war. Because the Constitution grants Congress the power to declare war, only Congress can determine whether the nation will start a war or enter a war against a nation that already has declared war against the United States. Necessarily, the President cannot unilaterally choose to wage war against another nation, even when that nation has already declared war.
Prakash asserts that there was a broad consensus on this understanding during the founding era.
Washington, Jefferson, Knox, and even Hamilton argued that the President could not order offensive measures against those that had declared war against the United States.
Some modern scholars argue that the president’s role as commander in chief includes implied powers to make decisions about offensive use of force. But founding era evidence does not support this conclusion. Historian Tom Woods sheds some light on the actual powers of the president and what the role of “commander in chief” actually entails.
But what the framers actually meant by that clause was that once war has been declared, it was the President’s responsibility as commander-in-chief to direct the war. Alexander Hamilton spoke in such terms when he said that the president, although lacking the power to declare war, would have “the direction of war when authorized or begun.” The president acting alone was authorized only to repel sudden attacks (hence the decision to withhold from him only the power to “declare” war, not to “make” war, which was thought to be a necessary emergency power in case of foreign attack).
The British King exercised all all war powers, but during the Philadelphia Conventions several delegates explicitly said the British monarchy was not the American model for executive powers. For instance James Wilson noted that the British King was not “a proper guide in defining the executive powers. Some of these prerogatives were of a Legislative nature. Among others that of war & peace.”
Hamilton expanded on this idea in Federalist 69.
In this respect his (the president’s) authority would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy; while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which by the constitution under consideration would appertain to the Legislature.
Later, at the Pennsylvania ratifying convention, Wilson expressed confidence that the constitutional structure would prevent a rush to war.
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: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our interest can draw us into war.
The framers clearly intended to keep war-making out of the hands of a single individual. As I mention in the previous article, they intentionally placed it in a deliberative body that represented the people. The underlying principle was diluting power as much as possible.
Some argue that the president must have the power to enter the U.S. into armed conflict because so many have done so. But the fact that a president exercises a power in no way proves he legitimately possesses it. It merely demonstrates the danger of power and how quickly it expands.
Next week we will look at the Second Amendment.
