At Balkinization, war-powers expert Stephen Griffin (author of the outstanding Long Wars and the Constitution) argues — or at least suggests — that low-level offensive uses of military force do not require congressional approval:  The Constitutionality of the Syrian Intervention (Or: Why I am not a war powers hardliner).  The post makes a number of important observations about modern practice, but I am most interested in its claims about the original understanding:

The constitutional justification for unilateral action starts then with the wide discretion the president has over the conduct of foreign affairs.  …

The Constitution does not in literal terms get in any president’s way in this respect unless they want to start what the Office of Legal Counsel has termed a “war in the constitutional sense,” a war such as Vietnam, the Persian Gulf War of 1990-91, Afghanistan and Iraq.  In other words, the degree of congressional involvement that is required by the Constitution is related, sensibly enough, to what the president wants to do.  There is an important link in this respect between the purposes that animated the framers in the eighteenth century and the experience of our own time.  As the framers understood from their experience with the Revolutionary War, wars that summon the efforts of the nation as a whole absolutely require interbranch deliberation.  This is part of the thinking that went into the “declare war” clause – marking out wars as special, not any sort of military action.

In my view, the founding era evidence is to the contrary.  Professor Griffin’s analytical structure is exactly right: the declare war clause limits only “wars”, not other sorts of military action.  Where the clause (and other military-related clauses in Article I, Section 8) are inapplicable, the President does have independent authority.  As a result, the President can, for example, independently make military deployments abroad with the consent of the territorial sovereign (for peacekeeping purposes, for example), because this typically does not involve anything that could be called a war.

But I think it is not true, as Professor Griffin appears to contend, that “war” in the founding era meant only large-scale operations that “summon the efforts of the nation as a whole”.  Instead, “war” encompassed most hostile military operations.  Here is what I wrote in The Constitution’s Text in Foreign Affairs (pp. 246-47, citations omitted):

Whether Congress’s power to initiate war amounts to near-complete control over the use of military force depends in large part upon the scope of [the term “war”].  Contrary to some presidential claims, eighteenth-century sources show that “war” had a broad meaning, encompassing most sovereign uses of force against another sovereign or quasi-sovereign entity.  According to [Samuel] Johnson’s 1755 dictionary, “war may be defined as the exercise of violence under sovereign command.”  Thomas Rutherforth similarly wrote in 1754: “War is a contention by force.”  In treatise-writer Richard Lee’s words (1760), “war is the state or situation of those … who dispute by force of arms.”  European writers also spoke broadly.  Bynkershoek defined war as “a contest of independent persons carried on by force or fraud for the sake of asserting their rights.”  For Vattel, “[W]ar is that state in which we prosecute our rights by force. . . .”   Burlemaqui called war “the state of those, who try to determine their differences by the ways of force, and Wolff said it is war “if one enters into violent contest with another.” …

Moreover, eighteenth-century writers explicitly recognized the idea of limited war.  Burlemaqui said that “we may also distinguish [wars] into perfect and imperfect.  A perfect war is that, which entirely interrupts the tranquility of the state, and lays a foundation for all possible acts of hostility.  An imperfect war, on the contrary, is that, which does not entirely interrupt the peace, but only in certain particulars, the public tranquility being in other respects undisturbed.”  [Here] … the theorists reflected eighteenth-century reality.  Limited conflicts and conflicts begun without formal declaration were common, yet both were called wars.  The core idea was a sovereign resolving its disputes by force.  That the force was not formally announced, was limited in scope, or was given some other name by the sovereign would not alter that description.  This definition is also consistent with post-ratification writing, which called the late-1790s limited naval conflict with France a “war”, albeit often an “undeclared” or “imperfect” war. [Citation here to, among other things, the Supreme Court’s decision in Bas v. Tingy, 4 U.S. 37, 43, 47 (1800).]

To elaborate  on post-ratification practice:  two of the leading low-level conflicts in the early post-ratification period were the naval war with France under President Adams and the conflict with Tripoli under President Jefferson.  Both were relatively minor affairs that did not engage the full force of the nation.  With respect to the conflict with France, there seems to not to have been any suggestion that the President could proceed on his own authority, even though France had engaged in hostile actions by seizing American merchant ships and the only proposed action was to attack French ships that seemed to pose a threat.  Although Congress declined to issue a formal declaration of war, it approved in fairly specific terms the military actions the President could take, and it was understood that the President could go no further.

With respect to the conflict with Tripoli, which began without congressional approval, even the single act of a U.S. warship seizing a Tripoli warship raised constitutional questions.  Jefferson argued that the ship had been justified because it fought in self-defense, while Hamilton argued that even offensive measures were allowed because Tripoli had begun the war.  Neither argued (nor did anyone else, so far as I’m aware) that the conflict with Tripoli was something less than a “war” for which congressional approval was unnecessary.  (These episodes are recounted in detail, among other places, in Abraham Sofaer’s War, Foreign Affairs and Constitutional Power).

Thus there was an overwhelming consensus that low-level conflicts such as those with France and Tripoli were covered by the declare war clause, and so required congressional approval (unless, in the case of Tripoli, the war had been begun by the other side).  That appears to be very strong evidence that the clause had a broad original meaning (especially when coupled with the broad definitions of “war” in pre-ratification sources).

NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey

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