The assertions by President Obama and Governor Romney of a unilateral presidential war power find no support in the architecture of the Constitution. From the text itself, to debates during the Constitutional Convention and the state ratifying conventions, to early Supreme Court decisions the power to declare war has always belonged to Congress.
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The framers of the Constitution might have granted to the president the sweeping foreign affairs and national security powers enjoyed by the King of England, but they rejected that executive model in a stunning break from the prevailing model for the conduct of foreign policy. It can be explained, however, in light of their own experiences and their reading of history.
Keen students of history, the framers concluded that across the centuries, kings and despots and tyrants had often marched their people into war for less than meritorious reasons, often for their own political, personal or financial interests. Fearful that an American president might follow that historical practice, the framers decided, by virtue of the War Clause, to vest the decision to go to war in the hands of Congress. This decision reflected two dominant factors—their deep-seated fear of executive power, and their commitment to collective decision making which, they believed to represent the essence of republicanism, the conviction that the combined wisdom of the many is superior to that of one. James Wilson, second in importance to James Madison at the Convention, summed up the framers’ decision to grant the war power to Congress, rather than to the president, when he stated that the Constitution was designed to prevent “one man from hurrying us into war.”
What is extraordinary is that the framers, to a man, embraced the view that Congress should be the repository of the war power. Readers familiar with the work of the Convention know that the creation of the Constitution was a work of compromise. Delegates from the four corners of the country arrived with many different views and values and the final product is the result of great quarrels and compromise. But the debates on the War Clause reflect a unanimity not found elsewhere in the Constitution.
As it happened, by the middle of August, only one man dared to advance the premise of an executive power to initiate war. On August 17, Pierce Butler of South Carolina, suggested that the president ought to have the authority to take the nation to war because he would not do it, unless the national interest demanded it. In a scene reminiscent of that inimitable practice in football—“piling on”—several delegates verbally pounced on Butler. Butler’s opinion shocked Elbridge Gerry, who said that he had “never expected to hear in a republic a motion to empower the Executive alone to declare war.” Butler stood alone in the Convention; there was no support for his opinion and no second to his motion.
Butler had taken his beating, but give him credit for being a quick study. At the end of the day, he promoted a motion to vest Congress with the authority to “end war, just as it has the authority to commence war.” Interestingly, when Butler reported the debates to his colleagues at the South Carolina Ratifying Convention, he mentioned that some delegate in Philadelphia had had the temerity to suggest the idea that the president should be given the war power, but that the poor fellow’s idea had been uniformly denounced. Butler never acknowledged that he was that poor fellow.
The relative ease with which the framers arrived at the decision to vest in Congress authority over matters of war and peace, is overlooked by those in our time who would grant to the president powers that were, at the time of the framing, exercised by the King of England, but emphatically rejected by delegates to the Convention. The framers severed all ties to the Royal Prerogative. In their invention of the presidency, the last thing they wanted to do was to create an embryonic monarchy. As Wilson explained, the “prerogatives of the Crown were ill-suited to a republic.”
The drafters of the Constitution, moreover, were guided by their understanding of what was then characterized as the Law of Nations, now understood as International Law. Every writer that they consulted, had asserted that the war power was legislative in nature since, to put it simply, the decision to go to war changed the legal condition of the nation. Manifestly, the legislative branch is the law-making department and, accordingly, only Congress might change the legal position of the nation. Whatever else, the president was granted no authority to make law.
The framers’ decision to transplant from English soil the title of Commander in Chief, and to vest it in the president, carried no authority to commence war or to initiate military hostilities. In point of fact, it never had, and the framers’ were under no compunction to revise the meaning of that title. Thus, their incorporation of the Commander in Chief Clause in Article II provided that the president would conduct war, once authorized or begun, as Alexander Hamilton explained in Federalist No. 69. Congress would, by virtue of the War Clause, declare or otherwise authorize war. But war might be “begun” by foreign invasion of the United States, in which case the president would be expected, as Madison explained, to “repel the invasion.” After the invaders were driven from our shores, the course of action would be left to Congress.
This understanding of the war power underwent no revision in the various state ratifying conventions. Indeed, no delegate challenged the design or wisdom of the War Clause. This understanding, moreover, was reiterated in the Federalist Papers and other contemporaneous writings that examined and discussed the proposed Constitution. The Supreme Court, at the Dawn of the Republic– in 1800, 1801, 1803, 1804 and 1806– reaffirmed the fundamental conception of the War Clause. As the great Chief Justice John Marshall wrote, “it is for Congress alone to decide for war.” In cases in 1804 and 1806, the Court also held that the president, in his capacity as Commander in Chief, was required to obey congressional directions and instructions, thus reminding all that the president is subordinate to Congress in the conduct of war. Those early decisions have never been overturned and remain good law.
The views and opinions expressed here are those of the writer and do not necessarily reflect those of Boise State University, the Center for Idaho History and Politics, or the School of Public Service.