The Founders on the Power to Declare War

Posted by Eric F. Langborgh on 17 Jul 2007 at 11:25 am

The principle the Founders had in mind was clear: if you are going to send the sons of the people off to war, then only the representatives of the people possess the authority to make that decision. Those representatives are found in Congress:

Regarding the necessity of a congressional declaration of war before commencing sustained offensive military action, note the words of James Madison in Federalist 41:

Is the power of declaring war necessary? No man will answer this question in the negative. It would be superfluous, therefore, to enter into a proof of the affirmative. The existing Confederation establishes this power in the most ample form. …With what color of propriety could the force necessary for defense be limited by those who cannot limit the force of offense? If a federal Constitution could chain the ambition or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety.

Regarding the requirement that the decision to declare war rests with the people’s representatives, note the words of Alexander Hamilton in Federalist 69:

…The President is to be commander-in-chief of the army and navy of the United States. In this respect his 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.

Mark that: In contrast to the English monarch, who had the power to declare war, the American president does not. The Founders deliberately excluded that power from the Executive, saying rather that it “would appertain to the legislature.”

This contrast between the king and the president is crucial, as the concluding paragraph of Federalist 69 makes clear:

The [president] would have a right to command the military and naval forces of the nation; the [king], in addition to this right, possesses that of DECLARING war, and of RAISING and REGULATING fleets and armies by his own authority. (emphasis mine)

As I have explained elsewhere, the failure to heed the Founders’ wisdom – and to heed the authority of the Constitution – here is no small matter:

… the lack of a congressional Declaration of War ironically prevents the Administration from bringing the war to a satisfactory resolution, just as our unconstitutional forays into Korea and Vietnam did.

In other words, the Bush Administration acts as though it has a blank check for fighting this war, but in fact they are hamstrung by politics. But they would have had a near blank check if they had sought and obtained a Declaration of War and the lasting public backing that Congress’s approval of such Declaration would have represented. After all, the Founders wisely understood that if you are going to send the people to war, it is the people who should decide to do so, and the people are best represented by their congressmen. At the same time, once Congress declares war, the Founders knew that it is self-defeating to have a huge representative body try to implement the war; rather, one man should direct the war, and that man is the President. When a president chooses to launch an offensive war without a congressional Declaration of War, what happens in effect is just the opposite of what the Founders intended, with the ever-shifting winds of public opinion swaying the conduct of the war, no matter how much of a tin ear the president has.

(original context)

© 2004-2008 Eric F. Langborgh