Today, Sen. Rand Paul introduced S.J. Res. 46 (SJ46), a constitutional declaration of war against the Islamic State (ISIS). If passed, it would be the first constitutionally-declared foreign conflict that the U.S. government has been engaged in since World War II.

“I believe the President must come to Congress to begin a war and that Congress has a duty to act. Right now, this war is illegal until Congress acts pursuant to the Constitution and authorizes it,“ Sen. Paul said.

Constitutionally-speaking, Paul couldn’t be more right.

The Founders expressly prohibited the Executive branch from having the power to unilaterally determine whether or not the country would engage in war. Few were more adamant about this than James Madison, the “Father of the Constitution,” who wrote the following text that Paul included in (SJ46):

“The constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the legislature.”

Thomas Jefferson supported this view quite eloquently when, in 1801, he said that, as President, he was “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.”

Thus, Congress has the power to determine if the country will wage offensive war and against whom.  Once that decision is made by the Congress, the President is in charge of waging that war.


Confronted with the Constitutional requirement that Congress is the federal branch that determines when the country goes to war, supporters of unilateral executive power will often take one of two paths to avoid following the Constitutional mandate that Congress declare the war before the Executive can take action.

1. Refer to the action as defensive.

This is the classic argument that “proves too much.” As James Madison pointed out, a constitutional argument is “triable by its consequences.” Here, the consequences would be essentially unlimited executive war power, since almost any significant activity can be linked to “national security” or a need to “defend American interests.” Because it is incontrovertible that unlimited executive war power is not what the Founders’ Constitution granted, the argument fails.

The argument is also a scary one, because historically “national security” often has been used to excuse the suspension of individual rights.

In short, actions only qualify as “defensive” under the constitution if they are in response to a direct attack or an imminent threat of attack. While not conclusive, there is Founding-era evidence to support the constitutionality of a defensive military response to protect U.S. personnel abroad as well. It’s also instructive to note that even this broader understanding is limited to “U.S. personnel abroad” and not merely “U.S. interests.”

2. Refer to the action as something other than “war.”

Under the Constitution, a war is a war whether you call it a war or something else.

Constitutional scholar, Rob Natelson, wrote about the legal meaning of the word “war”” in March, 2011:

Founding-Era dictionaries and other sources, both legal and lay, tell us that when the Constitution was approved, “war” consisted of any hostilities initiated by a sovereign over opposition.  A very typical dictionary definition was, “the exercise of violence under sovereign command against such as oppose.”  (Barlow, 1772-73).  I have found no suggestion in any contemporaneous source that operations of the kind the U.S. is conducting were anything but “war.” [emphasis added]

All U.S. military actions qualify as “violence under sovereign command.” And attacks, whether for strategic, political, or humanitarian purposes, are always “over opposition.”


There are many reasons why following the Constitution is not only within the law, but a good idea too.

The first goal of having Congress declare war was to ensure that the representatives of the states and the people would be the ones discussing matters of peace and war.

A Congressional declaration of war limits Presidential powers, narrows the focus of the action, and implies, or clearly stipulates a precise end-point to the conflict. When left in the hands of just one person, we can be assured that there is only one opinion on war. Conversely, the more people there are involved in making that decision, the greater the chance that the country will not get involved in costly, deadly and worthless wars.

Paul’s resolution follows this path by repealing previously-broad laws and putting forward a narrow declaration moving forward:

(a) Declaration.—The state of war between the United States and the organization referring to itself as the Islamic State, also known as the Islamic State of Iraq and the Levant (ISIL) and the Islamic State of Iraq and Syria (ISIS), which has been thrust upon the United States, is hereby formally declared pursuant to Article I, section 8, clause 11, of the United States Constitution.

(b) Authorization.—The President is hereby authorized and directed to use the Armed Forces of the United States to protect the people and facilities of the United States in Iraq and Syria against the threats posed thereto by the organization referring to itself as the Islamic State, also known as the Islamic State of Iraq and the Levant (ISIL) and the Islamic State of Iraq and Syria (ISIS).

While this particular policy measure may be the right path forward or the wrong path forward – the bigger issue at hand is whether or not Congress will actually follow the constitution. Sen. Paul’s effort to bring the Constitution to the forefront is laudable, even though it’s almost certain that Congress will, as they have for over 70 years, refuse to follow the constitution and will continue to allow the President to do what he wants.

Michael Boldin

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