War Powers, War Lies: Part 1: Original Intent
War Powers, War Lies: A Series
Part 1: Original Intent
Published in the Maryland Daily Record February 4, 2005
The U.S. is at war. Our soldiers die daily, our treasure is poured out, and our international prestige hemorrhages. No one has asked us citizens if we desire it. No one has asked Congress, or at least not properly. No one has leveled with us, and especially no one leveled with us when it could have mattered. And daily we are fed a diet of lies. Welcome to war, American style, as it has come to be. In the next few months, I want to talk about the convergence of two of the very worst trends in our Constitutional culture, Presidential usurpation of war powers, and Presidential lies, and how they have jointly brought about the kind of wars we keep having.
Conservatives since World War II have reliably proved among the staunchest supporters of the Presidents who have led us into war. Conservatives also typically affect to favor strict construction of our Constitution and/or “original intent,” i.e. what the Framers meant, rather than what so-called activist judges wish it said. But in practice conservatives acquiesce in the total perversion of one provision, Article I, Section 8, Clause 11, which reserves to Congress, and to Congress alone, the power “to declare War.” We know that both the literal meaning and the original intent here were crystal clear. Conservatives forget. Let me retell the story.
In the long, hot summer of 1787, when the delegates to the Philadelphia Constitutional Convention sweltered over the task of forging a nation, they disputed vehemently over almost every detail, including many having to do with the Nation’s armed forces, as, for instance the degree to which the federal government could control the state militias (they compromised), whether there should be standing armies (they compromised), and which branch of the Government should be entrusted with commissioning regular army officers (Congress won). But there was one military issue on which they were nearly unanimous.
On August 17, 1787, the Convention received a recommendation from its Committee of Detail which suggested that Congress should be vested with the power “To make war.” The recommendation gave rise to a quick, friendly discussion. Charles Pinkney of South Carolina thought that the language was too broad, since Congress would meet but once a year, and could not wield such wide power, – could not micromanage, in today’s terminology. He was seconded by Pierce Butler, also of South Carolina, who suggested vesting the power in the President, supporting his suggestion with an argument which is highly ironic in hindsight, that the President “will not make war but when the Nation will support it.”
At this James Madison of Virginia and Elbridge Gerry of Massachusetts moved to substitute the word “declare” for “make..” Roger Sherman of Connecticut disagreed, on the basis that the Executive should be limited to “the power to repel sudden attacks.” Gerry responded sharply that he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” After further discussion friendly to the amendment, in which it became clear that the consensus of the Convention was that making peace came more within the scope of the Executive than of the Legislative branch, the amendment was put to a vote. It carried, by a margin of two States. Two recent commentators, Christopher and James Lincoln Collier, have remarked that: “[t]here was virtually no other important question on which the Convention was so solidly in agreement as that the power to declare war be exercised by the Congress, and not the president.”
This is not to say that the Convention wanted to render the President powerless in matters military. It had before it various proposals rendering the President “Commander In Chief of the Armed Forces,” and endorsed them without discussion, on August 27. But in committing the power to declare war to the Legislative branch of the Government, the Convention had clearly intended to accord the Legislative branch supremacy in the process of deciding how and when to use the Nation’s military powers offensively.
We know this because the international law of the time – and indeed Western international law of every time since at least the Roman Empire – had condemned as illegitimate all hostilities between sovereign nations not preceded by formal declarations of war. There was simply no dissenting voice in the legal authorities of the time. Thus Pierino Belli, a Renaissance expert on military matters, simply took the preliminary of a declaration of war as a given, and went on to comment that:
… simple common sense declares that it is right that some lapse of time intervene, in which a person may prepare himself and get ready for defense. For scarcely a man would be excused from the charge of deceit and treachery who declared war and almost simultaneously made an attack.
Alberico Gentile, a scholar writing half a century later, summarized the vast authority from the ancients up to his own time behind this simple proposition. He wrote that:
….Wars must be waged with no less justice than bravery [said Church Father Camillus]. And God thus ordained in his law. And this justice of which we speak seems in the first place to consist in this: that we should inform of our deliberations the one against whom we have decided to make war. That is indeed commanded in the divine law, a law which related to all men and not to the Jews alone: for it is a law not confined to their commonwealth, but extending beyond it.
Others too have come to the same conclusion. Greeks, Barbarians, and especially the Romans. “It seems that no war can be regarded as just unless it has been announced and declared, and unless satisfaction has been demanded, as Cicero writes.
Writing yet half a century further, Samuel Pufendorf, a specialist in natural law whose writings were part of any well-equipped law library, never addressed the issue, because, as was clear from the context, he was unaware that anyone would raise the question as an issue: instead, he proceeded directly to a detailed discussion of the requisites of a declaration of war. Vattell, a highly influential Frenchman of the Enlightenment, likewise flatly asserted that hostilities must be preceded by a declaration of war.
By way of postscript, it can be added that this notion was no mere quaint medievalism. President Taft, not known as a starry-eyed dreamer living in the past, signed into law in 1909 this Nation’s ratification of the Hague Convention of 1907, Article III (Article I) of which reads:
The Contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war.
In short, the power to give or withhold a declaration of war was generally viewed by the Founders as tantamount to the power to decide whether hostilities would take place, with the well-recognized exception of defense against direct attack. This placed the real war-making power in the hands of the Congress, not the President. Alexander Hamilton discussed this in The Federalist, comparing the powers of the President with those of the King of England:
The most material points of difference are these– … 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 of which the Constitution under consideration would appertain to the Legislature.
A caveat: the Founders were aware that wars sometimes started without formal declarations. Hamilton himself wrote in The Federalist that: “T]he ceremony of a formal denunciation of war has of late fallen into disuse ….” W. Taylor Reveley, Dean of the William and Mary Law School, has written that “undeclared war was the norm in eighteenth-century European practice.” This might well suggest that the Founders expected many wars to be undeclared, as one school of scholars suggests. But virtually no authority contends that the Founders were thereby authorizing the Executive to start wars; whatever the vehicle involved, war commencement was intended to be a Congressional preserve. And however accomplished, the initiation of war by Congress would be explicit.
It is hard, in view of our Nation’s experience since Constitutional times, to believe that this neat division of powers could really have been intended, because on its face it seemed to make a declaration of war a slow and doubtful – maybe even an impossible – thing to achieve. But this truly was the intent of the Framers. James Wilson, one of the five members of the Committee of Detail, the man who actually wrote the text of the Constitution, when it came time for him to persuade the Pennsylvania legislature to ratify the Constitution, assured his fellow-Pennsylvanians that:
This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our national interest can draw us into a war.
To like effect, 80 years later, Joseph Story, the undisputed preeminent legal scholar of his day, Justice of the Supreme Court and professor at the Harvard Law School, explaining why the Constitution made the declaration of war so difficult, commented that “…war is in its own nature and effects so critical and calamitous, that it requires the utmost deliberation, and the successive review of all the councils of the nation…. It should therefore be difficult in a republic to declare war….”
In short, a broad Congressional right to prior approval of foreign employment of military force was the original intent of the Founding Fathers. There is simply no reasonable dispute. But as we shall see next time and beyond, original intent was no match for the forces of history, not the least of which was Presidential usurpation.
. James Madison’s Convention Journal, reproduced in 2 M. Farrand, ed., THE RECORDS OF THE FEDERAL CONVENTION 318 (rev. ed. 1966).
 Pinkney added arguments based on the balance of powers between the states under bicameralism.
The Hs. of Reps. would be too numerous for such deliberations. The Senate would be the best depositary, being more acquainted with foreign affairs, and most capable of proper resolutions. If the States are equally represented in Senate, so as to give no advantage to large States, the power will notwithstanding be safe, as the small have all at stake in such cases as well as the large States. It would be singular for one authority to make war, and another peace.
2 Farrand, supra, at 318.
 Id. at 319.
 C. Collier & J. L. Collier, DECISION IN PHILADELPHIA: THE CONSTITUTIONAL CONVENTION OF 1787, 330-31 (1986).
 The text conferring Commander-in-Chief powers upon the president was placed befvore the Convention on August 6, 1787, id. at 184, and the August 27 vote is recorded id. at 427. It appears in the Constitution at Article II, Section 2, Clause 1.
 P. Belli, A TREATISE ON MILITARY MATTERS AND WARFARE IN ELEVEN PARTS 79 (tr. H. Nutting) (repr. 1964). (Original Italian edition was 1563).
 A. Gentile, DE JURE BELLI LIBRI TRES 131 (tr. J. Rolfe) (1964), citing Cicero’s On Duties, I [xi:36]. (This book was originally published 1612.)
 2:ii S. Pufendorf, DE JURE NATURALE ET GENTIUM LIBRI OCTO 1387 (tr. C. & W. Oldfather) (1964). (This book was originally published in 1688.)
 M.D. Vattell, THE LAW OF NATIONS 383-84 (1805).
 Comments in debate, November 21, 1787, 2 J. Elliott, ed., THE DEBATE IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787, 528 (2d ed. 1836, repr. 1937).
 2 J. Story, COMMENTARIES ON THE CONSTITUTION, sec. 1171 at 97 (3d ed. 1858).
Copyright (c) Jack L. B. Gohn