In the heated constitutional debate over who has the power to wage war, one question rarely gets asked: what did the Founding Fathers have to say about it?
This question goes largely ignored because the answer would bring the debate to a screeching halt. Although there may be great deal of ballyhooing nowadays about whether the Congress or the president has the power to wage war, there wasn’t much of a debate during the founding era. They understood the plain language of the Constitution. There was no secret interpretation granting the president hidden war-making powers.
Research highlighted in Saikrishna Prakash’s 2007 Cornell Law Review article Unleashing the Dogs of War: What the Constitution Means by ‘Declare War’ demonstrates this truth. By reviewing declarations of war from the 18th century, considering the words of the influential Europeans who were the forebearers of the American revolutionaries, examining treaties that referred to war declarations, and recounting diplomatic letters, Prakash reveals a clear consensus of thought during the founding era shared by virtually all parties: They emphatically insisted America could only legally enter a war after a declaration was made by Congress.
The article begins by contrasting Thomas Jefferson’s view on war powers with that of modern day scholars. Thomas Jefferson believed, according to a letter he wrote to James Madison, that the Constitution would prevent excessive war because it took the power out of the hands of the executive branch and instead vested it in the legislative branch. Two distinctive scholarly branches disagree with Jefferson’s interpretation: the formalists and the pragmatists.
The ‘formalist’ line of thinking asserts that the president can start a war for any reason with Congress determining only those specific wartime powers and restrictions that should apply. The ‘pragmatist’ line of thinking holds that the president has the authority to make war as long as another country has already declared war on the United States. Since the war already began, a declaration therefore becomes unnecessary. Prakash takes both schools of though to task, demonstrating that it was Thomas Jefferson who was indeed correct in his interpretation.
Formalist theory is wrong because it undermines the powers delegated to Congress in the Constitution. If Congress is able to issue an ultimatum giving another country time to change its conduct or be subject to war, as Prakash contends that it can, it does not make sense for the president to be able to do an end-run around the lawful authority of Congress by unilaterally declaring war. Why would this power be given to Congress if the president can simply run roughshod over it at a moment’s notice? Prakash surmised that under formalism, Congress’ Declare War powers become little more than ceremonial and serve as nothing more than a rubber-stamp for moves the president already made. Prakash sums up their views by saying that “the formalist view of “declare war” is improbable precisely because it imagines that the power to declare war is rather empty.”
The pragmatic view is incorrect because it, in Prakash’s words, “imagines a puzzling bifurcation of war powers.” A president allowed to assume the power to wage war as long as the United States has presumably been attacked is problematic for many reasons. Leaving the capability to wage war in the hands of a unitary executive is an effect of pragmatism that is incongruent with the Constitution as it was written. Congress is supposed to decide the scope of the war, not the president. Pragmatism is also a dangerous notion because of the countless examples of countries throughout time acting as if they were not the progenitors of a conflict in order to dupe the public into thinking that they were under attack and war was therefore necessary. If pragmatism reins, it is easy to imagine a devious president framing a country for starting a war in order to gain this illicit power. Allowing the president absolute authority to wage war after an attack gives a green light to more excessive war-making than what is absolutely necessary.
It is important to note that the president can only be given the discretion to command the war by the Congress. If the Congress gives the president the ability only to wage war by sea against a rival country, that alone is the president’s mandate. In addition, Letters of Marque and Reprisal were supposed to be integral to the defense of America. Prakash describes this as a “measured means of seeking recompense—more harsh than negotiations but less extreme than a full-scale war.” This was also to be handled by the Congress. The Congress can also cut funding from a war effort in the case of incompetent or despotic actions from a president. The founding fathers were careful to hamstring the executive branch in an attempt to avoid having to deal with another oppressive monarch like the one from whom they had recently seceded.
Still, the president can wield significant authority in spite of being legally unable to make war. The president is Commander-In-Chief, and that position cannot be taken from him unless impeachment proceedings arise. The president commands the troops during wartime, and is in control of the militia when it is called into service to protect the homeland. A president also has the power to repel armed invaders from the country and usher U.S. nationals from a foreign land without congressional approval. Prakash asserts that the president even has the legal authority to “order acts of self-defense, even very destructive acts.” The power to start a war, however, is the exclusive avenue of the legislature.
The arguments put forward by the formalists and pragmatists derive from a misinterpretation of what it means to ‘declare war.’ A review of 18th century documents demonstrate that ‘declare war’ does not exclusively refer to a formal declaration, it refers to actually entering and getting involved into warfare. Prakash definitively states that “evidence from the eighteenth century establishes that to declare war was to decide to enter a war.” The founding fathers would have had to reject the widely-accepted vernacular of the time for the pragmatists or formalists to be correct in their interpretation. Language in early American treaties also inferred that the verbiage ‘declare war’ encompassed more than just a formal declaration.
The words from the delegates during the Philadelphia Convention that was ultimately responsible for the Constitution confirm that the Declare War power is not meant as some mere formality, but fully encompasses the decision to enter into warfare. None of the statements made by the delegates would make any sense if the formalist and pragmatist definitions were legitimate. This shows that Thomas Jefferson was not alone in his constitutional interpretation. Prakash states that “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.” Consider this quote from America’s first president and iconic war hero George Washington as evidence of her statement:
The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken… until after [Congress] shall have deliberated upon the subject, and authorized such a measure.
President Washington, although eager to attack several aggressive Indian tribes, knew that he could not launch offensive measures against them without first receiving Congressional approval. This was shown not just in his words, but also in his actions. President Washington exercised restraint because he firmly believed in fidelity to the Constitution. It was lawful for self-defensive measures to be enacted without Congressional approval, but no aggressive actions were allowed to be taken. This was the widespread understanding shared amongst revolutionary-era thinkers.
Much of the confusion over the meaning of ‘declare war’ comes from the various ways it has been used throughout history. Because it is possible to use the term ‘declare war’ to mean a formal declaration, this has been conflated to mean that ‘declare war’ as written in the Constitution only encompasses the formal declaration and nothing else. According to Prakash, entering a treaty, supplying foreign aid, rescinding ambassadors, and boorish, insulting behavior were commonly interpreted as war declarations during the 18th century. This does not change what the term meant in the Constitution. When examining the words of the founding fathers and the European predecessors who influenced them, it is clear that the Congress must ultimately decide to wage war for it to be proper under the Constitution.
Prakash’s critical analysis about the proper role of war powers under the Constitution provides many examples that illustrate exactly how misguided mainstream scholarship has become in America. Whether well-intentioned or not, the revisionists in the formalist and pragmatic camps alter history to create justifications for the otherwise unlawful increase in state power. They must be rejected, and we must listen to the Founding Fathers who understood the tremendous harms that result from unchecked, unregulated government power. Sticking with the founding fathers and ignoring the revisionists is key if we are to re-establish a peaceful, stable, prosperous Republic.
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