INTRODUCTION
With the publication of his book, The President's
Authority Over Foreign Affairs: An Essay in Constitutional Interpretation,
built atop two previous articles,
Professor H. Jefferson Powell has plunged into the headwaters of the debate
over the repository of the constitutional authority to make and conduct
American foreign policy, a debate he perceived as one foundering on the shoals
of ill-designed legalistic premises, extreme rhetoric and hyperbole, and a
relative indifference toward the role and place of practical politics in
outfitting the ship of state.
Professor Powell explained that the disparate, antagonistic, and overly legalistic
premises of the protagonists are likely to leave the issue unresolved, adrift,
as it were, on a chartless sea.
For his part, Powell aimed to bring a voice of moderation and reason to the
pitched conflict between the pro-presidential and pro-congressional scholars
whom, he claimed, are on a march toward destinations pre-determined by their
own ideological and political predilections.
Eschewing such influences--what Paul Brest described as "advocacy scholarship"--in
favor of what he called a strategy that is grounded in the "bases of the law," Professor
Powell offered his version of the "best" reading of the "[C]onstitution of
foreign affairs," a reading that not only promotes the thesis of presidential
dominance but which, indeed, unleashes what he characterized as "the [P]resident's
legally-unbounded authority over United States foreign policy."
His thesis, which exalts the concept of executive ascendancy, is not far
removed from that of Justice George Sutherland, who asserted in 1936, in United
States v. Curtiss-Wright Export Corporation,
that the President is the sole organ of American foreign policy.
Professor Powell tried in vain to dissociate his position from the dead weight
of Justice Sutherland's opinion because, in the end, his premises, planks and
pillars are largely those that support the platform upon which the Curtiss-Wright
opinion rests. While it is clear, I believe, that neither the Sutherland
opinion nor its scholarly progeny can find comfort in the Constitution, it has
been true for roughly fifty years that the President has been functioning as
the "sole organ" of U.S. foreign relations, largely unchallenged by a quiescent
legislature and unchecked by a deferential judiciary.
For the record, Professor Powell argued that "the reality of current practice
is not too distant from what it should be in principle."
Professor Powell's point of departure, the
principal rationale behind the book, may be found in what he considered to be
Professor Edward Corwin's insufficient explanation of how the Constitution
governs the conduct of American foreign policy. In his influential book, The
President: Office and Powers, first published in 1940, Professor Corwin
addressed a critical issue: "Where does the Constitution lodge the power to
determine the foreign relations of the United States?"
In a passing rebuke to advocates of the "sole organ" doctrine, Corwin noted the
tendency among many commentators to locate the foreign relations power "in the
President," but he explained, "they would be hard put to it, if challenged, to
point out any definite statement to this effect in the Constitution itself."
In an answer to his own question, Corwin asserted that the exercise of foreign
affairs powers is contingent upon events:
[W]hat the Constitution does, and all that it does,
is to confer upon the President certain powers capable of affecting our foreign
relations, and certain other powers of the same general nature upon the Senate,
and still other such powers on Congress; but which of these organs shall have
the decisive and final voice in determining the course of the American nation
is left for events to resolve.
Professor Corwin explained this constitutional
arrangement in terms that scholars have embraced as aphoristic: "All of which
amounts to saying that the Constitution, considered only for its affirmative
grants of powers capable of affecting the issue, is an invitation to struggle
for the privilege of directing American foreign policy."
Corwin observed that in the inevitable struggle for control of foreign policy,
the President has emerged triumphant, a disposition that reflects what he
referred to as "great [policymaking] advantages": the unity of the executive
office, its ability to act quickly and secretively, its access to information,
and
fact that it, unlike Congress, is in continuous session.
He pointed out that "despite all this, actual practice under the
Constitution has shown that, while the President is usually in a position to propose,
the Senate and Congress are often in a technical position at least to dispose."
The record or practice, or as Professor Corwin noted, the "verdict of history,
in short, is that the power to determine the substantive content of American
foreign policy is a divided power, with the lion's share falling
usually, though by no means always, to the President."
Professor Corwin's emphasis on the "practice" of executive assumption of
foreign policy powers, as distinct from executive adherence to constitutional
principles, warrants his conclusion that "the history of the [P]residency is a
history of aggrandizement."
Professor Corwin, himself, allowed that "it is not extravagant to say that immensely
the most important single factor in the determination of American foreign
policy has been presidential guidance of it," even though, as he
acknowledged, the Framers rejected executive control of the nation's foreign
affairs.
The postulate, or indeed, the unhappy fact of
presidential control of foreign affairs affords Professor Powell no ground for
objection. On the contrary, Professor Corwin's description of presidential
ascendancy is precisely what Professor Powell viewed as constitutional
prescription. In what he characterized as his "presidential-initiative"
reading of the "Constitution of foreign affairs," Professor Powell reached "legal
conclusions" that, he acknowledged, "are not all that far" removed from the "pragmatic"
considerations--among them, unity, secrecy, dispatch, and superior information--that
Professor Corwin adduced as primary factors that gave rise to presidential
control of American foreign relations.
Professor Powell's point of objection, rather, lay in Professor Corwin's
treatment of the "Constitution of foreign affairs" as an enumeration of
discrete and fragmentary grants of power, an "unnecessarily wooden view of
constitutional interpretation," one apparently devoid of any rhyme or rhythm,
and even devoid of an over-arching organizing principle.
In stark contrast to Professor Corwin's
understanding of the manner in which the Constitution governs foreign policy,
Professor Powell asserted "the existence in the founding era of a coherent
interpretation of the Constitution as vesting authority for the formulation and
implementation of foreign policy in the [P]resident."
Professor Powell gave voice to what he perceived to be the Founders'
interpretation through the construction of a narrative grounded on originalist
premises. Accordingly, he employed (1) text and structure, (2) the views of
those who framed the Constitution and those who debated its ratification, (3)
the opinions and practices of early statesmen who charted and navigated the
foreign relations of the nascent republic, and (4) the insights and
observations embodied in early judicial opinions.
Originalism, or interpretivism, is an agreeable
method of constitutional interpretation. As Professor Powell has rightly
observed, "The Constitution . . . is not and has never been understood to be
simply the words on the page: the Constitution is the text plus those
principles which are implicit in the structures of government and the
relationships that are created by the Constitution among citizens and
governments."
Justice Oliver Wendell Holmes noted that the words of the constitutional text
involve a "constituent act," and they serve to create textual and structural
relations that govern the exercise of power.
A distinguished constitutional scholar, Charles L. Black, reminded us that in
this act of creation, the structural relations "created by the text, and
inferences drawn from them must surely be controlled by the text."
However, Professor Powell warned that while the "words of the Constitution are
authoritative, and any persuasive constitutional argument must make sense of
the provision or provisions of the text that bear on the issues being
considered," the interpreter, nonetheless, "is equally responsible for giving
due weight and proper respect to the political and legal institutions and
relationships that the text creates."
The imprecision of some of the language employed in legal instruments, owing to
the fact that words are but signposts to the thought of the lawmaker,
necessitates resort to extrinsic aids that include, among originalists such as
Professor Powell, (1) the Framers' purposes, (2) the Ratifiers' understanding
of those purposes, and (3) the explanation of constitutional issues furnished
by commentaries published contemporaneously with the drafting and adoption of
the Constitution, most notably The Federalist papers, which Professor
Powell justly regarded as "the most important ratification-era discussion of
the Constitution's meaning."
The proposition that the interpretation of textual
language requires resort to extrinsic sources is equally true of the
construction of textual omissions or organic lacunae, particularly in an area
such as the "Constitution of foreign affairs" which, Professor Powell contended,
is fairly rife with textual silences. Professor Powell wrote: "The truth is
that the text of the Constitution, the one source of authority beyond practical
question" in the debate, "has, on its face, remarkably little to say about
Professor Corwin's question" of how the Constitution governs American foreign
policy.
Moreover, Professor Powell argued that the text is "ambiguous" in its treatment
of a good many foreign policy issues, including the repository of the authority
to "make war or conduct military operations," and that it leaves unresolved
numerous questions that pertain to the respective powers of the President and
Congress.
Professor Powell dismissed as insufficient and "accordingly flawed" Professor Corwin's
conclusion that "[w]hat the Constitution does, and all that it does," is to
assign to the President and Congress a series of discrete powers relating to
foreign affairs while leaving it up to "events" to dictate which branch
actually will "determine the foreign relations of the United States." Powell
explained that Corwin's contention rested on a "clearly erroneous" assumption
that the "Constitution is simply, and no more than, the sum of its textual
provisions." It is as a consequence of the silence and, indeed, the ambiguity
of textual provisions, as well as the fact that the Constitution has "never
been understood to be simply the words on the page," that Professor Powell resorted
to originalist methods and materials in his construction of a narrative that
offers the "best" reading of the "constitution of foreign affairs." This Article
represents a critique of Professor Powell's effort to adduce on originalist
grounds a unilateral presidential authority to initiate military hostilities.
As we shall see, his efforts to adduce a justification for presidential dominance,
whether grounded in law, in history, or in policy, are unpersuasive.
I. Powell's Originalist
Premises
Professor Powell has written that "[t]he ambiguity
about the location of authority over foreign policymaking apparent on the face
of the Constitution's text is replicated in the materials traditionally viewed
as evidence of the original understanding of the Constitution's meaning."
In Professor Powell's view, the "ambiguity" extended to "[t]he presidential
office," which, he wrote, "took shape only late in the deliberations of the
Philadelphia framers, and it is difficult to identify unifying themes from
their discussions about the intended role of the president beyond what one can
derive from the spare text which they drafted. The ratification did not
produce much greater clarity."
Chief among the evidentiary materials adduced by
Professor Powell are The Federalist papers which, he rightly asserted,
represented "the most important ratification-era discussion of the Constitution's
meaning. . . ."
Professor Powell acknowledged that the authors of The Federalist papers--James
Madison, Alexander Hamilton, and John Jay--"discussed on a number of occasions
issues involving the distribution of authority over foreign policy" but that
other issues--principally federalism and congressional power in domestic
matters--took precedence and thus required more attention from "Publius."
Still, those papers that dealt with foreign affairs suggested important
themes. For Professor Powell, if Publius had said little about foreign policy,
he had said enough: "A consistent emphasis throughout The Federalist is
the importance for America of ensuring that there is an efficient national
Government responsible for foreign affairs."
The pursuit of an "effective foreign policy," which Professor Powell contended
lay at the "core of The Federalist's argument," implied executive
primacy because the characteristics of the "proposed presidency"-energy, unity,
secrecy, and dispatch-"were, as it happens, the same which Publius thought
necessary in conducting a wise foreign policy."
Upon review of what he regarded as Publius' somewhat truncated discussion of
foreign affairs, Professor Powell asserted: "Even if this language falls short
of unmistakably according the [P]resident primary responsibility for foreign
policymaking, it clearly ascribes to the executive primacy in the execution of
foreign policy."
In his discussion, "Some Hints from Publius," Professor Powell concluded,
somewhat remarkably, that "The Federalist provides few direct answers to
Professor Corwin's question about the location of power to determine the
foreign policy of the United States."
On the contrary, a good deal more than mere "hints" about the constitutional
terrain of foreign relations, may be gathered from The Federalist.
Indeed, Publius provided a satisfactory road map for the exercise of
presidential and congressional powers: major landmarks were clearly marked,
arteries were fairly plotted, and tributaries were discernible. Moreover, in
contrast to Professor Powell's claim of an "executive primacy" theme, The
Federalist papers, in fact, reflect a constitutional grant to Congress of
the bulk of the nation's foreign policy powers, a design which assigns to
Congress senior status in a partnership with the President for the formulation,
management, and conduct of American foreign policy. The constitutional design,
moreover, reveals the Constitutional Convention's conspicuous penchant for
collective decision-making in foreign affairs, as in domestic affairs, and its
fear of unilateral executive power. Of particular concern here is Professor
Powell's treatment of the critical power to initiate war on behalf of the
American people. Before proceeding to an examination of that authority, and
related matters, we shall briefly examine some of the Convention's broader
considerations about the formulation and conduct of the nation's foreign
relations.
II. The Constitutional Convention
The Constitutional Convention was called for the
purpose of correcting the deficiencies of the Articles of Confederation. Chief
among the deficiencies were those that weakened the international position of
the United States. Accordingly, few issues rivaled in importance the
maintenance of national security and the conduct of foreign affairs. Thus, the
search for an efficient foreign policy design was a primary goal and an
animating purpose of the Convention.
There was broad agreement among American leaders
that the foreign affairs flaws of the Articles of Confederation stemmed not
from the absence of an independent executive but from the lack of authority
granted to Congress. The Articles had created an ineffective national
government that lacked coercive power over the states. Indeed, the outstanding
characteristic of the Articles--state sovereignty--was reflected in theory by the
fact that the governing document did not capitalize "united states" and in
practice by the refusal of states to honor their federal obligations.
Contemporaries discussed three particular
weaknesses. First, a depleted treasury undermined national defense and
rendered the young Republic vulnerable to its enemies and adversaries. The
Spanish in the South, British in the Northwest, and Indians throughout the land
represented an ongoing threat. Second, without authority to regulate foreign
commerce, Congress lacked bargaining power in its attempt to strike favorable
trade agreements. Third and most important, Congress had no power to prevent
states from violating treaties negotiated in the name of the United States,
which meant that individual states could undermine the reputation, integrity,
and security of the nation. Indeed, the pervasive infidelity of the states to
the international obligations and treaty agreements of the United States subverted the ability of the union to maintain its
foreign credit and
position as a sovereign nation. The frequent treaty violations, according to
Madison, who is justly known as the Father of the Constitution for his role as
its chief architect, constituted one of the principal "vices of the political
system of the United States."
They led Hamilton to lament in The Federalist No. 22: "The faith, the
reputation, the peace of the whole Union, are thus continually at the mercy of
the prejudices, the passions, and the interests of every member of which it is
composed. Is it possible that foreign nations can either respect or confide in
such a government?"
The inadequacies of the Articles--mainly the
debilitating weakness of the national government--supplied a critical focal
point for the Framers' deliberations. The Convention's decision to create the
Supremacy Clause was a pivotal move; indeed, the declaration in Article VI that
"[t]his Constitution, and the laws of the United States and all Treaties, . .
. any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding," signified the end of "state sovereignty" and enabled the
federal government to wrest control of foreign policy from the recalcitrant
states. While the Supremacy Clause certainly had profound implications for
areas other than diplomacy, there is no exaggeration in the observation that it
provided the sine qua non of a vital and vibrant national foreign policy.
The Articles of Confederation also supplied, in
some key respects, a point of departure. The Articles had vested executive as
well as legislative authority in Congress. Article VI granted Congress control
over the conduct of foreign policy, and Article IX granted it "the sole and
exclusive right and power of determining on peace and war." However, the
Philadelphia Convention had embraced the principle of separation of powers, and
now the delegates were forced to fashion a division of authority between the
legislative and the executive branches.
The Framers might have adopted the English model
for reasons of familiarity, tradition, and simplicity. Like other nations, Britain concentrated
virtually unlimited authority over foreign policy in the hands of the
executive. The Framers were, of course, thoroughly familiar with the vast
foreign affairs powers that inhered in the English Crown by virtue of the royal
prerogative. Sir William Blackstone, the great eighteenth-century jurist,
explained in his magisterial four-volume Commentaries on the Laws of England
that the king exercised plenary authority over all matters relating to war and
peace, diplomacy, treaties, and military command.
Blackstone defined the king's prerogative as "those rights and capacities which
the King enjoys alone."
The monarch's prerogatives, "those which are 'rooted in and spring from the
King's political person,'" include the authority to send and receive ambassadors
and the power to make war or peace.
The King, moreover, could negotiate "a treaty with a foreign state, which shall
irrevocably bind the nation," and he could issue letters of marque and
reprisal, which authorized private citizens to perform military actions on
behalf of the nation. According to Blackstone, the King was "the
generalissimo, or the first in military command," and he possessed "the sole
power of raising and regulating fleets and armies."
Blackstone explained that in the exercise of this lawful prerogative, the King "is,
and ought to be absolute; that is, so far absolute that there is no legal
authority that can either delay or resist him."
The preference for collective, rather than
individual, decision making runs throughout the constitutional provisions that
govern foreign policy. In addition to its exclusive jurisdiction over
legislation and appropriation, Congress derives broad authority from Article I,
Section 8 to "provide for the common defense," to "regulate Commerce with foreign
Nations," "[t]o define and punish Piracies and Felonies committed on the high
Seas . . . and Offences against the Law of Nations," and to make rules
governing immigration and naturalization.
Congress, alone, has the power to "declare War" and to "grant Letters of Marque
and Reprisal" as well as to develop rules regarding "Captures on Land and
Water."
Congress also possesses the authority to raise, support, and maintain an army
and navy, to "make Rules" for the regulation and government of the "land and
naval Forces," and to call forth "the Militia to execute the Laws of the Union, suppress Insurrections and repel
Invasions."
It is also assigned the power and responsibility to organize, arm, discipline,
and govern the militia.
As Article II, Section 2 of the Constitution
indicates, the President shares with the Senate the power to make treaties and
appoint ambassadors.
Specifically, the President is granted the authority, "by and with the Advice
and Consent of the Senate, to make Treaties, provided two thirds of the
Senators present concur."
The Supremacy Clause, as we have observed, makes treaties, along with the
Constitution and acts of Congress, the "supreme Law of the Land."
The constitutional grant of authority to the President to "appoint Ambassadors,
other public Ministers and Consuls" is subject to the advice and consent of the
Senate.
The Constitution assigns to the President only two
exclusive roles in foreign affairs. He is "Commander in Chief of the Army and
Navy of the United States, and of the Militia of the several states, when
called into the actual Service of the United States," and he is enjoined by
Article II, Section 3, to perform two duties: "he shall receive Ambassadors,
and other public Ministers," and "he shall take Care that the Laws be
faithfully executed . . . ."
This list exhausts the textual grant of authority to the President and Congress
in foreign affairs. The President's constitutional powers are few and modest,
and they pale in comparison with those vested in Congress.
The judiciary is assigned constitutional power
that bears on the conduct of foreign policy. Article III, Section 2 confers
upon the Supreme Court original jurisdiction in "all Cases affecting
Ambassadors, other public Ministers and Consuls," while it generally lodges in
the federal courts jurisdiction in "Controversies . . . between a State, or the
Citizens thereof, and foreign States, Citizens or Subjects."
Some foreign affairs powers are not mentioned in
the Constitution. For example, the Constitution is silent on the repository of
authority to negotiate treaties, terminate treaties, recognize foreign
governments and states, and make or declare peace. I have elsewhere argued
that these powers are subsumed under enumerated grants of power or fairly
inferred from the Framers' intentions or other constitutional provisions.
This approach is faithful to the principle articulated by the Court in Reid
v. Covert that the government is "a creature of the Constitution.
Its powers and authority have no other source."
Behind the Framers' emphatic rejection of the
British model, rooted in a deep aversion to an unrestrained, unilateral
executive power, lay an equally emphatic commitment to the republican principle
of collective decision-making, grounded in the belief that the conjoined wisdom
of the many is superior to that of one. The Framers perceived a broad
equatorial divide between the hemispheres of monarchism and republicanism,
between the values of the Old World and those of the New World. The Convention's
deliberate fragmentation of powers relating to diplomacy, treaties, and war and
peace, and the allocation of the various foreign affairs powers to different
departments and agencies of government, reflected the Framers' determination to
apply the doctrines of separation of powers and checks and balances, the
principle of the rule of law, and the elements of constitutionalism to the
realm of foreign relations as rigorously as they had been applied to the
domestic domain.
This critical decision represented a bold
departure from the prevailing wisdom of the day, which urged the unification
and centralization of foreign relations powers in the executive and warned that
the separation of those powers would invite chaos, disorder, and even disaster.
However, the Framers brought a fresh outlook, a new vision, to foreign policy,
one that recognized that the conduct of foreign policy includes some elements
that are primarily legislative in nature, others that are essentially
executive, and still others characteristically judicial. In The Federalist
No. 47, Madison observed that "treaties with foreign sovereigns" assume,
once they are made, "the force of legislative acts."
The Constitution, moreover, characterizes the power to declare war as legislative
and the power to conduct it as executive. The Supremacy Clause imposes upon
judges the duty to enforce treaties as the law of the land.
The Constitutional Convention discarded the British model as obsolete and
inapplicable to the republican manners of the United States.
The purpose of this new constitutional arrangement
for foreign affairs, a distinctively American contribution to politics and
political science, was to require and implement collective
decision-making-joint participation, consultation, and concurrence-by the
political branches in the formulation, conduct, and management of the nation's
foreign policy. The Framers supposed that the infusion into the foreign policy
process of checks and balances would maintain the constitutional allocation of
powers and, therefore, prevent executive unilateralism, aggrandizement, and
usurpation. They believed, moreover, that the structure of shared powers in
the conduct of international affairs, bottomed on the premise and promise of
legislative deliberation, would produce wise policies and, in the words of
Wilson, "a security to the people," for it would afford in Congress an airing
of the various political, economic, and military interests that were bound up
in the nation's external relations.
III. The War Power
Professor Powell attributed to the President, as
part of his constitutional authority over foreign affairs, a limited power "to
use the armed forces as an instrument of foreign policy in the absence of a
congressional prohibition . . . as long as the hostilities do not amount to 'war'
in the constitutional sense."
As he explained it, the ability to "[t]hreaten the use of military force is an
ordinary and essential element in the toolbox of that branch of government
empowered to formulate and implement foreign policy."
Moreover, "this view of military force as an instrument of foreign policy
follows . . . from [an] understanding of foreign policymaking that can
reasonably be attributed to the rather hardheaded, effective-national-government
understanding of the Constitution common[ly] shared among The Federalist
and [President] Washington and his associates."
Professor Powell observed that "the ability to use the threat of military
action would be empty if the [P]resident's ability to carry through on such a
threat depended in every instance on congressional approval."
Thus, it is "erroneous" to assume that "military action must always be
authorized in advance by Congress," for such a constitutional requirement would
unwisely hobble the President in the pursuit of his foreign policy goals by
depriving him of an "essential element" in his national security "toolbox."
As a matter of course, Congress has chosen to provide the President with a
standing army, and if Congress chooses not to prohibit a presidential use of
force, if indeed "Congress leaves the president legally unfettered," then "the [P]resident
has the prima facie power to employ military force in the pursuit of foreign
policy objectives."
However, Professor Powell noted that "[p]rima facia power is not plenary power"
and that "there are sound arguments for concluding that the Constitution puts
limits on the [P]resident's authority to use the armed forces as an instrument
of foreign policy."
The appropriations power of Congress constitutes the principal limitation, but
as a "structural matter, Congress has the first and last word."
Professor Powell pointed out that Congress "must provide forces before the
President can commence hostilities, and it can remove those forces, by
decommissioning them or by forbidding their use in pursuit of a particular
policy at any time."
In Professor Powell's reading of the
constitutional cosmology that governs the use of military force, the assignment
to the President of an independent power to initiate hostilities is subject to
congressional prohibition. He explained that there is a further limitation: "[T]he
declaration of war clause suggests, if it does not entail, that the
Constitution of its own force sets some sort of outer boundary on the [P]resident's
ability to use the commander in chief power to pursue sheerly executive-branch
policies."
Given Professor Powell's advocacy of a unilateral executive power to initiate
hostilities, there arises the question of the scope of that authority, in the
absence of an act of congressional prohibition. He located the parameters of
this presidential power in the recent opinions of the Department of Justice,
which "identify a boundary that is consistent with text, structure and history."
The Office of Legal Counsel's (OLC) opinion in 1994 that justified "President
Clinton's deployment of troops to Haiti to support the restoration of the de
jure government recognized by the United States articulated the standard."
Quoting the Office of Legal Counsel, Professor Powell stated:
In deciding whether prior Congressional authorization
for the Haitian deployment was constitutionally necessary, the President was
entitled to take into account the anticipated nature, scope, and duration of
the planned deployment, and in particular the limited antecedent risk that
United States forces would encounter significant armed resistance or suffer or
inflict substantial casualties as a result of the deployment.
Moreover, as Powell noted,
all of this assumes that at some level of anticipated
scope, duration, and violence, the use of military force rises to the
constitutional level of "war" and therefore requires congressional approval.
This limitation on executive autonomy is consistent with recognizing the President's
legally-unbounded authority over United States foreign policy. The use of
military force is a tool of foreign policy, but at some point of severity, it
implicates the American people in a fashion that demands the approval of their
elected legislators as well as their elected President.
Professor Powell's discussion of the
constitutional governance of the war power-the authority to initiate military
hostilities-bears no relation to (1) the text of the Constitution; (2) the
debates in the Constitutional Convention, and the state ratifying conventions; (3)
the structure of war and foreign affairs authority created by the Framers; (4) The
Federalist papers; (5) the practice of the government in the nascent
American republic; and (6) early judicial decisions. Indeed, his approach
would eviscerate the War Clause.
Professor Powell conceded that the Constitution, "beyond
any doubt," grants to Congress an "array of powers relating to military matters
that far exceeds those possessed by the British parliament at the end of the
eighteenth century, at which point the power to make war, and most related
powers other than authority to raise taxes, were vested in the king."
Further, he rightly noted: "On issues touching on war, the Constitution works a
striking departure from the British model, and clearly places the president's
ability to formulate foreign policy under constraints that the
eighteenth-century British executive did not face."
This summary review, however, represents something of a hedge, for it fails to
acknowledge and appreciate the Convention's rejection of executive war-making.
Moreover, Professor Powell's nod in the direction of the Framers' "striking
departure from the British model" is belied by his own assertion of a
unilateral executive power to use military force short of what a president
would choose to define as "war." As a consequence, Professor Powell's position
would reduce the distinction between presidential war-making and monarchical
war-making to a difference in degree, in contrast to the Convention's
understanding of it as a difference in kind. The Convention's sharp rejection
of the English model reflected not only the Framers' commitment to
republicanism, the cardinal principle of which is found in the practice of
collective-decision making, in both foreign and domestic affairs, but also to
their deep-seated fear of unilateral executive power, which they culled from
their impressive grasp of history as well as their personal experience under
King George III.
These values, fears, and concerns were captured in illuminating discussions and
debates in the Convention debates, which Professor Powell asserted were "ultimately
cryptic" and not accurately reported by Madison in his Convention notes. The
core of Professor Powell's objection on this score is that "Madison's notes on
this debate take up less than two pages in the standard Farrand edition and
cannot possibly report what was said in complete detail."
In response to Professor Powell's charge, one might ask, "How does he know?"
The assertion, like others--"Madison did some editing"--reflects a tactic
intended to undermine the authenticity and thus the reliability and influence
of the Convention's words and deeds, but in any case some evidentiary support
ought to be adduced. In fact, Hamilton verified the accuracy of Madison's account of his
speech--supposedly some five to six hours in length--to the
Convention on June 18 in which he outlined a governmental plan.
Moreover, Professor Powell altogether ignored an additional day of
debate on the war power, one which preceded the debate that he summarizes and
which clearly shaped and influenced the Convention's ultimate decision to grant
the war power-the authority to initiate hostilities-solely and exclusively to
Congress.
The debate on the proper repository of the
authority to commence war occurred at the outset of the Constitutional
Convention. On May 29, 1787, Governor Edmund Randolph of Virginia proposed a
constitution that included a provision "that a National Executive be
instituted."
The seventh paragraph stated that the executive "ought to enjoy the Executive
rights vested in Congress by the Confederation."
The Randolph Plan was taken up by the Convention on June 1.
In considering the proposal to give to the national executive the executive
powers of the Continental Congress, Charles Pinckney objected that the
Executive powers of [the existing Congress] might extend to peace and war which
would render the Executive a Monarchy, of the worst kind, to wit an elective one."
Fellow South Carolinian, John Rutlidge, said "he was for vesting the Executive
power in a single person, tho' he was not for giving him the power of war and
peace."
James Wilson sought to reassure them: "making peace and war are generally
determined by writers on the Laws of Nations to be legislative powers." Wilson added that "the
Prerogatives of the British Monarchy" are not a "proper guide in
defining the executive powers. Some of these prerogatives were of a
legislative nature. Among others that of war & peace."
James Madison agreed that the war power was legislative in character. Rufus
King noted: "[Madison] agrees [with] Wilson in his [definition] of executive
powers--executive powers ex vi termini, do not include the Rights of War [and
]Peace but the powers [should] be confined and defined--if large we shall have
the Evils of elective Monarchies. . . ."
Randolph did not defend his proposal but pressed for a plural executive: "A
unity of the Executive he observed would savor too much of a monarchy. We had
he said no motive to be governed by the British Government as our prototype."
There was no vote on Randolph's resolution, but the discussion reflects an
understanding that the power of "war and peace"--the power to initiate war--did
not belong to the executive but to the legislature.
On August 6, the Committee of Detail circulated a
draft constitution which undoubtedly reflected the Convention's discussion in
June. The proposal provided: "The legislature of the United States shall have the power . . . to make
war. . . ."
This bore sharp resemblance to the Articles of Confederation, which vested the "sole
and exclusive right and power of determining on peace and war" in the
Continental Congress.
When the war clause was considered in debate on August 17, Charles Pinckney
opposed placing the power in Congress. "Its proceedings were too slow. . .
. The
Senate would be the best depository, being more acquainted with foreign
affairs, and most capable of proper resolutions."
In his summary of this debate, Powell correctly noted that Pierce Butler was
for vesting the power in the President, who will "have all the requisite
qualities, and will not make war but when the nation will support it."
However, Professor Powell overlooked the fact that Butler's opinion surprised
Elbridge Gerry, who said that he "never expected to hear in a republic a motion
to empower the Executive alone to declare war."
The oversight is important because Butler stood alone in the Convention; there
was no support for his opinion and no second to his motion. The lack of
support for Butler's motion, moreover, should not surprise anyone because
several Framers, in the course of discussions on June 1, had emphasized their
opposition to any thought of vesting the President with the power of war and
peace. The very notion, it seems, smacked of monarchism and the royal
prerogative and, as a consequence, engendered fear and resentment.
The proposal of the Committee of Detail to vest
the legislature with the power to "make war" proved unsatisfactory to Madison
and Gerry. In a joint resolution, they moved to substitute "declare" for "make,"
"leaving to the Executive the power to repel sudden attacks."
The meaning of the motion is clear. Congress was granted the power to make,
that is, initiate war; the President, for obvious reasons, could act
immediately to repel sudden attacks with authorization from Congress. There
was no quarrel whatever with respect to the sudden attack provision, but there
was some question as to whether the substitution of "declare" for "make" would
effectuate the intention of Madison and Gerry. Roger Sherman of Connecticut thought the joint motion
"stood very well. The Executive should [b]e able to
repel and not to commence war. 'Make' better than 'declare' the latter
narrowing the power too much." Oliver Ellsworth observed that "there is a
material difference between the cases of making war, and making peace.
It should [b]e more easy to get out of war, than into it. War also is a
simple and overt declaration."
Virginia's George Mason "was [against] giving the power of war to the
Executive, because not [safely] to be trusted with it; or to the Senate,
because not so constructed as to be entitled to it. He was for clogging rather
than facilitating war; but for facilitating peace. He preferred 'declare'
to 'make.'"
The Madison-Gerry proposal was adopted by a vote of seven to two. When Rufus
King explained that the word "make" might be understood to authorize Congress
to initiate as well as to conduct war, Connecticut changed its vote so that the
word "declare" was approved, eight states to one.
The debates and the vote on the war clause make it clear that Congress alone
possesses the authority to initiate war. The war-making power was specifically
withheld from the President; he was given only the authority to repel sudden
attacks. Only one delegate--Pierce Butler--advanced the notion of a presidential
power to initiate war. However, by the end of the August 17 debate on the War
Clause, he clearly understood the Framers' decision to place the war power
under legislative control, as evidenced by his motion "to give the Legislature
power of peace, as they were to have that of war."
The motion, which represented a volte-face on Butler's part, drew no discussion,
and it failed by a vote of 10 to 0.
In all likelihood, it was viewed by delegates as utterly superfluous given the
understanding that the war power encompassed authority to determine both war
and peace.
Professor Powell has characterized the debate on
the War Clause as "cryptic," ambiguous, and generally unhelpful. Moreover, it "was
unknown to all ratifiers who were not themselves delegates to the Philadelphia
Convention; its details were not therefore part of the shared understanding on
which the Constitution was adopted."
As a consequence, he asserted, it was of less formal significance . . . than The
Federalist. . . ."
Yet, through the fog of the debates, Professor Powell perceived that "some, at
least, of the [F]ramers, thought pragmatic or functional considerations about
rendering effective the federal government's ability to deploy military force
were valid considerations in drafting the Constitution."
Let us consider Professor Powell's concerns about
the inutility of the debates on the War Clause. In passing, we ought to note
Powell's puzzling inconsistency on the relevance and general evidentiary value
of the debates on the War Clause. At one point, he sought to dismiss the
debates as irrelevant in the ratifiers' consideration of the war power because
they "were unknown to all ratifiers who were not themselves delegates to the
Philadelphia Convention" and thus were not "part of the shared understanding on
which the Constitution was adopted." That criticism paints too broadly, of
course, for it would impugn the utility and relevance of all of the Philadelphia debates--something that I do not believe
Professor Powell wishes to do. Moreover,
Powell invoked selected arguments and contentions from the debates,
including Pierce Butler's initial advocacy of presidential warmaking, in order
to adduce support for his assertion of a unilateral executive authority to
initiate military hostilities. More specifically, there is no foundation to
support Professor Powell's opinion that the debates are "cryptic" and
unhelpful; indeed, these characterizations ring hollow when we recall that the
Framers exhibited an overwhelming preference for congressional control of the
war power. Indeed, with the exception of Pierce Butler's remarks, there is nothing
in the Framers' comments, arguments, or train of discussion to suggest even a
vigorous flirtation with the proposition of vesting the war power in the
executive. The various state ratifying conventions, moreover, included
delegates in Philadelphia who informed and assisted their deliberations. James
Wilson, perhaps only slightly less important than James Madison in the
Constitutional Convention, told the Pennsylvania Ratifying Convention:
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 war.
Similar assurance was provided in other state
conventions. In North Carolina, James Iredell, who was destined to be a member
of U.S. Supreme Court, stated: "The President has not the power of declaring
war by his own authority. . . . These powers are vested in other hands. The
power of declaring war is expressly given to Congress."
Furthermore, Charles Pinckney, a delegate in Philadelphia, told the South
Carolina Ratifying Convention that "the President's powers did not permit him
to declare war."
Likewise, in New York, Chancellor R. K. Livingston responded to objections that
the Continental Congress did not have "the same powers" as the proposed
Congress.
He explained that if the two bodies shared "the very same" power, including the
power "of making war and peace[,] . . . they may involve us in a war at their
pleasure."
Professor Powell certainly is correct in his
contention that the Framers emphasized "pragmatic" considerations in their
allocation of the authority to "deploy military force." Their pragmatic bent,
however, led them to vest the war power in the hands of the legislature, not
the executive. As the debates revealed, there was an over-arching concern among
the delegates that the President could not be "trusted" to exercise this
awesome power. Indeed, the Framers' pursuit of an efficient foreign policy
design was compounded by their heightened fear of the abuse of power. The
Founders were steeped in English history, and they knew well that, as Madison stated, "the management of foreign relations
appears to be the most susceptible of
abuse of all the trusts committed to a Government."
War, alone, could plunder the nation's treasury, ravage its society, and, of
course, destroy its very lifeblood. The Framers' "pragmatism" was also greatly
influenced by the constitutional crises and political convulsions of the
seventeenth-century English Civil Wars. The absolutist claims of the Stuart
Kings and the abuse of authority by manipulative ministers had hardened their
view toward the executive. The pervasive fear of unbridled power and the
specter of an embryonic monarchy precluded presidential control of foreign
policy and war-making. Even Alexander Hamilton, an admirer of executive
supremacy, shared these concerns as expressed in The Federalist No. 75:
The history of human conduct does not warrant that
exalted opinion of human virtue which would make it wise in a nation to commit
interests of so delicate and momentous a kind, as those which concern its
intercourse with the rest of the world, to the sole disposal of a magistrate
created and circumstanced as would be a President of the United States.
The pervasive fear of a powerful executive,
particularly a President who might wield unilateral authority in an area so
sensitive and critical as that of war-making, was reinforced by the republican
ideology that permeated the Convention. The Framers' attachment to collective
judgment and their decision to create a structure of shared power in foreign
affairs and war-making provided, in the words of James Wilson, a "security to
the people," for it was a cardinal principle of republicanism that the
conjoined wisdom of the many is superior to that of one.
The Framers' pragmatic emphasis on collective decision-making came, of course,
at the expense of unilateral presidential authority over the use of force, but
that consequence was of little moment, given the overriding aversion to
unrestrained executive power. In the end, the structure of shared powers in
foreign affairs and war-making proved satisfactory to the Framers because it
would deter the abuse of power and provide a means of airing the various
political, social, and economic values that were bound up in the nation's
external relations.
The debates on the War Clause afforded no support
for the assertion of a unilateral presidential power to initiate the use of
military force, nor is it the case, as some pro-presidentialists have
contended, that this authority can be squeezed from either the Vesting Clause
or the Commander in Chief Clause.
Professor Powell would attribute to the President, in his role as commander in
chief, the power to use military force for the purpose of pursuing and securing
foreign policy and national security objectives. According to Professor
Powell, a presidential power to initiate hostilities is not "unlimited" but is,
in fact, bounded by what he refers to as the "declaration of war clause," more
commonly understood as the War Clause.
The provision "suggests, if it does not entail, that the Constitution of its
own force sets some sort of outer boundary on the President's ability to use
the commander in chief power to pursue sheerly executive-branch policies."
Professor Powell asserted that in the event that
Congress chooses not to prohibit the use of military force, the president is
free to initiate hostilities. As we have seen, the power is not unfettered; apparently,
the level of force cannot rise to what would be characterized as "war." This "standard"
was articulated by the OLC's legal opinion in 1994 which sought to "justify"
President Bill Clinton's decision to deploy "troops to Haiti to support the restoration of the de jure government recognized
by the United States. . . ."
According to this approach, it is the President who would decide whether
congressional authorization is necessary before he decides to act
unilaterally. The OLC described the episode in Haiti: "the President was
entitled to take into account the anticipated nature, scope, and duration of
the planned deployment, and in particular the limited antecedent risk that
United States forces would encounter significant armed resistance or suffer or
inflict substantial casualties as a result of the deployment"
Moreover, as the "OLC acknowledged, all of this assumes that at some level of
anticipated scope, duration and violence, the use of military force rises to
the constitutional level of 'war,' and therefore requires congressional
approval. This limitation on executive autonomy is consistent with recognizing
the [P]resident's legally-unbounded authority over United States foreign
policy."
Professor Powell's theory is nothing less than a breathtaking revision of the
War Clause, a transformation that turns the Constitution on its head. As we
have observed, the delegates in Philadelphia rejected the proposition of
executive war-making. The discussion and debate reflected the Framers' preference
for congressional control of the authority to decide matters of war and peace.
There was nothing in the debates that affords support for Professor Powell's
thesis of a presidential power to use military force short of war. Notably, a
good many veterans of the Revolutionary War, including the nation's commander
in chief, George Washington, and his aide-de-camp, a young Alexander Hamilton,
sat in Philadelphia and never uttered a word in support of a presidential power
to use force without congressional authorization. Moreover, as we shall see, Hamilton contended in
his proposal to the Convention that the Senate ought to possess the "sole
and exclusive power" to authorize war. Hamilton, moreover, joined his
colleagues in the clear rejection of the British model for foreign affairs and
war-making. In point of fact, Powell's assertion of an executive power to
initiate hostilities short of the president's perception of what constitutes
war would effect a transfer of the war power from Congress to the President. The
OLC's "standard" that Professor Powell embraces is one written on the wind,
particularly when it is recalled that President Clinton disclaimed, on the
legal advice of the OLC, the need for congressional authorization to use
military force for the purpose of "restoring" a government. If a President
does not require authorization from Congress when he seeks to restore a
government, will he need it if he wishes to dislodge one or to impose another?
On this "standard," how violent must the hostilities become, how broad and for
how long must the hostilities last, before Congress would be "instructed" to
provide authorization? How many casualties are required before the use of
force is elevated to the level of war? Answers to any of these questions are
likely to engender more questions and great debate about the wisdom of
employing force in pursuit of foreign policy goals. As we have seen, the
debate on the war power reflects the Framers' determination that these
decisions were better suited to legislative rather than executive
consideration, and they remain so. As we shall see, the Commander in Chief Clause
was not viewed by the Framers as a source of war-making authority, nor is it
plausible, as Professor Powell has maintained, that the authority to initiate
hostilities is an "implied power."
It strains the bounds of discussion to maintain that delegates to the
Constitutional Convention would have left the authority to initiate military
hostilities--a power of surpassing importance--to the vague premises of
implication. In fact, as we have seen, the Framers "assigned" that authority
to Congress, a determination which reflected the "assignment" of the war powers
to Congress under the Articles of Confederation. There is no evidence in the
records of the Philadelphia Convention to suggest that the Framers conceived
the war power as an implied power. On the contrary, the discussion on the war
power reflected an understanding among the delegates that the war power was
textually assigned to Congress. Nonetheless, Professor Powell's assertion that
the war power is implied or derivative raises the question of the source or the
roots of that authority. The possibility of locating in the Commander in Chief
Clause a presidential power to initiate hostilities can be readily dispelled by
considering the Convention debate, or rather the lack of one, on the president's
role as commander in chief.
As Francis D. Wormuth observed, "the office of
commander in chief has never carried the power of war and peace, nor was it
invented by the framers of the Constitution."
In fact, the office was introduced by King Charles I in 1639, when he named the
Earl of Arundel commander in chief of an army to battle the Scots in the First
Bishops War. In historical usage the title of commander in chief has been a
generic term referring to the highest officer in a particular chain of
command. In the English experience, the ranking commander in chief always was
under the command of a political superior. This long practice was transplanted
to American soil by the English and implemented during the Revolutionary War. The
Continental Congress continued the usage of the title when on June 15, 1775, it unanimously decided to appoint George
Washington as general. On June 17,
his commission named him "General and Commander in Chief, of the Army of the
United Colonies." The instructions of the Congress drafted by John Adams,
Richard Henry Lee, and Edward Rutledge kept President Washington on a short
leash. He was ordered "punctually to observe and follow such orders and
directions, from time to time, as [he] shall receive from this, or a future
Congress of these United Colonies, or Committee of Congress."
Congress did not hesitate to instruct the commander in chief on military and
policy matters.
The practice of entitling the office at the apex
of the military hierarchy as commander in chief and of subordinating the office
to a political superior, whether a King, parliament, or Congress, was thus
firmly established for a century and a half and was thoroughly familiar to the
Framers when they met in Philadelphia. Perhaps this settled understanding and
the consequent absence of concerns about the nature of the post accounts for
the fact that there was no debate on the Commander in Chief Clause at the
Convention. Any interest on the part of the delegates in reversing this
familiar practice and vesting the President with a substantive power to
initiate military hostilities surely would have been accompanied by some
comment, some appeal, or some argument to that effect. The record, however,
reveals no such interest.
In the plan he read to the Convention on May 29, 1787, South Carolinian
Charles Pinckney introduced the title of President and
proposed: "He shall, by Virtue of his Office, be commander in chief of the land
forces of U.S. and Admiral of their Navy."
Presumably, Pinckney had drawn on the traditional usage of the title employed
in the South Carolina Constitution of 1776, which provided for a "president and
commander-in-chief," and that of 1778, which included a provision for a "governor
and commander in chief."
There was no such provision in the Randolph or Virginia Plan, which was read to
the Convention on the same day.
On June 15, William Paterson submitted the New Jersey Plan, which called for a
plural executive.
It provided that "the Executives . . . ought . . . to direct all military
operations; provided that none of the persons composing the Federal Executive
shall on any occasion take command of any troops, so as personally to conduct
any enterprise as General, or in any other capacity."
The qualifying clause was meant to discourage a military takeover of the
government. When Alexander Hamilton submitted a plan to the Convention on June
18, he probably did not propose the title commander in chief, but he
undoubtedly had it in mind when he said the President was "to have the
direction of war when authorized or begun."
It was Hamilton's speech, then, that summarized
the essence of the President's power as commander in chief: When war is "authorized
or begun," the President is to command the military operations of American
forces. There was no fear of the legal authority granted by the Commander in Chief
Clause, and in fact, the clause seemed to excite little dispute. The lone
concern was that conveyed by the New Jersey Plan that a President who
personally assumed command of army and navy forces might use them to institute
a military coup, as the New Jersey plan conveyed.
However, these concerns were allayed in the North
Carolina Ratifying Convention. Richard Spaight, who had been a delegate to the
Constitutional Convention, said that Congress could control the commander in
chief because it had the exclusive authority to raise and support armies.
James Iredell offered similar assurance, laying bare the authority of the
commander in chief and drawing a sharp distinction between the powers of the
office and those of the King of England:
I believe most of the governors of the different
states have powers similar to these of the President. In almost every country,
the executive has command of the military forces. From the nature of the
thing, the command of armies ought to be delegated to one person only[.] The
secrecy, [dispatch], and decision, which are necessary in military operations,
can only be expected from one person. The President, therefore, is to command
the military forces of the United States, and this power I think a proper one;
at the same time it will be found to be sufficiently guarded. A very material
difference may be observed between this power, and the authority of the king of
Great Britain under similar circumstances. The king of Great Britain is not
only the commander-in-chief of the land and naval forces, but has the
power, in time of war, to raise fleets and armies. He also has the power to
declare war. The President has not the power of declaring war by his own
authority, nor that of raising fleets and armies. These powers are vested in
other hands. The power of declaring war is expressly given to Congress, that
is, to the two branches of the legislature. . . . They have also expressly
delegated to them the powers of raising and supporting armies, and of providing
and maintaining a navy.
Iredell's speech echoed The Federalist No. 69,
in which Hamilton sought to ease fears surrounding the Commander in Chief Clause.
He claimed for the President no authority to use military force:
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.
In short, the President as commander in chief was to
be "first General and Admiral" in "the direction of war when authorized or
begun." However, all political authority remained in Congress, as it had under
the Articles of Confederation. There was no indication in the debate on the Commander
in Chief Clause of an "implied" executive power to initiate military
hostilities on behalf of the American people. As Louis Henkin has observed, "generals
and admirals, even when they are 'first,' do not determine the political
proposes for which troops are to be used; they command them in execution of
policy made by others."
The commander in chief in the tradition of a century and a half was made
subordinate to a political superior. The office carried with it no power to
declare or authorize war; as Hamilton and Iredell explained, that is the
exclusive prerogative of Congress.
Professor Powell's assertion of an independent
executive power to initiate military hostilities short of war, whether grounded
in the Commander in Chief Clause or implied in the President's authority to "formulate
and implement" the nation's foreign affairs, is at odds with the illuminating
debate on the War Clause and the clear understanding that the Commander in Chief
Clause ascribed to the President no authority to initiate the use of military
force. Others have suggested that acts of military force short of war might be
committed by the President, but their efforts, like Professor Powell's efforts,
are unavailing.
Let us consider Professor Powell's contention from
additional angles. His view on the Commander in Chief Clause ignores the fact
that at the time of the framing, the word "declare" enjoyed a settled
understanding and an established usage. Simply stated, as early as 1552, the
verb "declare" had become synonymous with the verb "commence"; they both meant
the initiation of hostilities.
This was the established usage in international law as well as in England, where the terms to declare war and to make war
were used interchangeably.
This practice was thoroughly familiar to the Framers. As Chancellor James Kent
of New York, one of the leading jurists of the founding period, stated: "As war
cannot lawfully be commenced on the part of the United States without an act of
Congress, such an act is, of course, a formal official notice to all the world,
and equivalent to the most solemn declaration." While Kent interpreted "declare" to mean "commence,"
he did not assert that the Constitution
requires a congressional declaration of war before hostilities could be
lawfully commenced, but merely that Congress initiates it. What "is essential,"
according to Kent, is "that some formal public act, proceeding from the
competent source, should announce to the people at home their new relations and
duties growing out of a state of war, and which should equally apprise neutral
nations of the fact."
Whether Congress declares or otherwise authorizes war, it is performing, as
James Wilson said, a "legislative" act because it is moving the nation from a
state of peace to a state of war. In 1806, Justice William Paterson, who had
been an influential member of the Constitutional Convention, observed in United
States v. Smith
that "it is the exclusive province of Congress to change a state of peace into
a state of war."
Given the equivalence of "commence" and "declare,"
it is clear that a congressional declaration of war was desirable because it
announced the institution of a state of war and the legal consequences which it
entailed, to the adversary, to neutral nations, and to citizens of the
sovereign initiating the war. Indeed, this is the essence of a declaration of
war: notice by the proper authority of intent to convert a state of peace into
a state of war.
However, all that is required under American law is a joint resolution or an
explicit congressional authorization of the use of military force against a
named adversary. This can come in the form of a "declaration pure and simple"
or a "conditional declaration of war."
There are also two kinds of war: those which United States courts have termed "perfect"
or general and those labeled "imperfect" or limited wars. In 1782, the Federal
Court of Appeals, the prize court established by the Continental Congress,
stated:
The writers upon the law of nations,
speaking of different kinds of war, distinguish them into perfect and
imperfect: A perfect war is that which destroys the national peace and
tranquillity, and lays the foundation of every possible act of hostility. The
imperfect war is that which does not entirely destroy the public tranquillity,
but interrupts it only in some particulars, as in the case of reprisals.
It was decided at the dawn of the Republic in
three important Supreme Court cases that the power of determining perfect and
imperfect war lay with Congress.
For example, in 1801, Chief Justice John Marshall, who had been a member of the
Virginia Ratifying Convention, held for the Court in Talbot v. Seeman
that the "whole powers of war" are "vested in Congress. . . ."
Thus, the power of Congress comprises the power to "declare a general war" and
also to "wage a limited war."
The power of Congress to authorize limited war is, of course, a necessary
concomitant of the power to authorize general war. If, as Professor Powell has
suggested, the President might authorize relatively minor acts of war or
perhaps covert military operations in circumstances not demanding full-blown
war, that power could be wielded in a way that would easily eviscerate the
Constitution's placement of the war power in Congress. John Bassett Moore,
perhaps the most eminent American scholar of international law, justly rebuked
that proposition:
There can hardly be room for doubt that the framers of
the Constitution, when they vested in Congress the power to declare war, they
never imagined that they were leaving it to the executive to use the military
and naval forces of the United States all over the world for the purpose of
actually coercing other nations, occupying their territory, and killing their
soldiers and citizens, all according to his own notion of he fitness of things,
as long as he refrained from calling his actions war or persisted in calling it
peace.
As a matter of fact, the Framers withheld from the
President the power to work such mischief. As we have observed, he was granted
only the authority, as Madison explained, "to repel sudden attacks" against the
United States, attacks which would represent the initiation of war by a
foreign country.
In United States v. Smith, Justice Paterson explained the rationale for
a presidential response:
If, indeed, a foreign nation should invade the
territories of the United States, it would I apprehend, be not only lawful for
the president to resist such invasion, but also to carry hostilities into the
enemy's own country; and for this plain reason, that a state of complete and
absolute war exists between the two nations. In the case of invasive
hostilities, there cannot be war on the one side and peace on the other. . . . There
is a manifest distinction between our going to war with a nation at peace, and
a war being made against us by an actual invasion, or a formal declaration. In
the former case, it is the exclusive province of Congress to change a state of
peace into a state of war.
Justice Paterson described the rationale for
vesting the President with authority to repel sudden attacks as resting on the
fact that an invasion instituted a state of war, thus rendering a declaration
of war by Congress superfluous. However, the President's power of self-defense
does not extend to foreign lands. The power to repel invasions did not signify
a transfer of power from Congress to the President; rather, it represented an
exception to the otherwise plenary power of Congress to commence war. An enemy's
invasion removes the decision-making authority of Congress. The Framers did
not grant the President the authority to intervene in foreign wars, to choose
between war and peace, or to identify and commence hostilities against an enemy
of the American people. Nor did they empower him to initiate force abroad on
the basis of his own assessments of United States security interests or, as Moore put it, "according to his own notion of
the fitness of things." These circumstances
involve choices that belong to Congress under its exclusive province to change
a state of peace into a state of war.
While some Presidents and commentators have
adduced the Vesting Clause as a source of war-making authority for the
President, there is certainly nothing in the records of either the
Constitutional Convention or the various state conventions to support this
assertion. As previously noted, the mere suggestion in the Randolph Plan to
provide for a President who would "enjoy the executive rights vested in
Congress by the Articles of Confederation" caused much alarm. Some delegates
wondered whether this move would grant to the President the authority to
initiate war, a move that they strongly opposed. Wilson allayed the fears: "Making
peace and war are generally determined by the Writers on the Laws of Nations to
be legislative powers--[e]xecutive powers . . . do not include the rights of war
and peace."
Professor Powell asserted that some early statesman might have found in the
Vesting Clause a basis for a general assertion of a presidential foreign
affairs power broad enough to encompass the authority to initiate military
hostilities. However, as we shall see, there are good reasons to think
otherwise; in any case, this contention cannot be grounded in the founding
materials.
Our review of the Convention's discussions and
debates on war-making yields no support for the contention that the Framers
granted war-making authority to the President. It is clear that neither the
Commander in Chief Clause nor the Vesting Clause may be adduced on behalf of a
unilateral executive war-making power. As previously mentioned, however,
Professor Powell has argued that the presidential power to use military force
is an "implied" power, one which inheres in the authority to "formulate and
implement" the nation's foreign relations. Let us examine that proposition in
light of the Convention's words and deeds.
By the end of August, the Convention created what
a delegate characterized as a "grand committee" to address several important
but unresolved issues, including the authority to make treaties. The
responsibility thrust upon the committee was to offer recommendations on "such
parts of the Constitution as have been postponed" and on parts of reports that
had not been the subject of any action. Known as the Committee on Postponed
Parts, its eleven members came from each state and consisted of some of the
Convention's most effective and influential delegates, including James Madison,
Rufus King, Roger Sherman, John Dickinson, and Gouverneur Morris. The
committee, chaired by David Brearly, the Chief Justice of New Jersey, offered
on September 4 a recommendation on war and foreign affairs that the Convention
would come to embrace:
The President by and with the advice and consent of
the Senate, shall have power to make treaties; and he shall nominate and by and
with the advice and consent of the Senate shall appoint ambassadors, and other
public Ministers, Judges of the Supreme Court, and all other officers of the U.S.,
where appointments are not otherwise herein provided for. But no Treaty shall
be made without the consent of two thirds of the members present.
The recommendation of the Brearly Committee to
include the President in the treaty‑making and appointment powers
reflected recommendations outlined in the plan Hamilton offered to the
Convention on June 18:
The supreme Executive . . . to have the direction of
war when authorized or begun; to have with the advice and approbation of the
Senate the power of making all treaties; to have the sole [power of]
appointment of the heads or chief officers of the departments of Finance, War
and Foreign Affairs; to have the nomination of all other officers (Ambassadors
to foreign Nations included). . . . The Senate to have the sole power of
declaring war, the power of advising and approving all Treaties, the power of
approving or rejecting all appointments [except department heads].
On September 5, the day after the Brearly
Committee submitted its proposals on the treaty power and power of
appointments, it recommended that Congress should be granted the authority to
issue letters of marque and reprisal, a proposal that the Convention
unanimously endorsed and placed in the War Clause. This critical decision
illuminates the Framers' thoughts about war-making and undercuts Professor Powell's
assertion that an executive power to initiate hostilities is derived from the
President's authority to formulate and conduct the nation's foreign affairs.
The fact that the Framers granted to Congress the authority to issue letters of
marque and reprisal after vesting diplomatic powers in the President reflects
their deeply-held belief that the President should have no role in the
determination of war. Moreover, consider the fact that the Convention's vote
on the power to issue letters of marque and reprisal was cast on the
understanding that it was a legislative, not an executive, power. Under the
Articles of Confederation, Congress had possessed the power "of granting
letters of marque and reprisal in times of peace." The practice of issuing these
letters dated back to the Middle Ages, when sovereigns authorized private
citizens to wage war in retaliation for an injury caused by a sovereign of
another state or his subjects. By the time of the Convention, the practice had
evolved into the use of public armies, and the Framers considered the power to
issue letters of marque and reprisal sufficient to authorize a broad spectrum
of armed hostilities short of declared war.
That is what Blackstone meant when he wrote that
the authority to grant letters marque and reprisal "plainly derived" from "that
other of making war; this being indeed only an incomplete state of hostilities,
and generally ending in a formal denunciation of war."
Of course, Blackstone viewed that as part and parcel of the royal prerogative.
In its draft constitution, the Committee of Detail had prohibited the
individual states from granting letters of marque and reprisal, but it had
provided no indication of the constitutional repository of the power to
authorize these letters.
As a purely hypothetical matter, it might have been regarded as a mere
attribute of the power of the commander in chief. As Arthur Bestor pointed out,
however, that was neither the perception nor the understanding of the
Convention: "To forestall the possibility of such an interpretation, Elbridge
Gerry, who had spoken out on the 17th of August against empowering 'the
Executive alone to declare war,' brought forward the very next day a
proposition to add to the list of legislative powers that of granting letters
of marque and reprisal."
As we have seen, the Convention on September 5 voted unanimously to endorse the
proposal and added it to the War Clause. The assignment to Congress of
the power to issue letters of reprisal speaks volumes for the Framers' belief
that the offensive powers of the nation should be exercised solely and
exclusively by Congress. The understanding of the Convention underwent no
revision; the power to authorize letters of marque and reprisal was regarded as
a species of imperfect war, what Blackstone termed an "incomplete state of
hostilities." Moreover, Madison, Hamilton, and Jefferson, three formidable
figures, agreed that the authorization of reprisals was an act of war and
belonged to Congress. As a direct riposte to Professor Powell's claim of a
presidential power to order military force short of the threshold of "war," we
may consider what Jefferson said in 1793 of the authority necessary to issue a
reprisal: "Congress must be called upon to take it; the right of reprisal being
expressly lodged with them by the Constitution, and not with the executive."
In a series of early decisions, the Supreme Court likewise held that it is for
Congress, alone, to authorize general war or limited hostilities.
The Convention's decision to vest in Congress the
authority to issue letters of marque and reprisal gave final shape to the War
Clause and it reflected the Framers' determination that all of the offensive
powers of the nation-the authority to initiate military hostilities-should be
controlled by Congress. Nothing in the records of either the Constitutional
Convention or the various state ratifying conventions even hints or intimates,
as Professor Powell has asserted, that the Framers left in the hands of the President
an "implied" power to use force by virtue of his role to formulate and conduct
American foreign policy. The Convention conceived of war-making--on a small or
large scale--to be legislative in nature and not an attribute of executive
power. The assignment to the President of a role in treaty-making and
diplomatic matters did nothing to diminish the exclusive power of Congress on
issues of war and peace.
As a result, the constitutional text is an
accurate reflection of the Framers' determination to vest the war power in
Congress. Thus, Professor Powell's questions about the meaning of the text, as
they apply to war-making, should be subject to clear resolution. For example,
the absence of any support among delegates of the Convention that the Commander
in Chief Clause affords the President authority to initiate war should resolve
this much-debated question between pro-presidentialists and
pro-congressionalists. While Professor Powell is right in his observation that
debate is "intimately related to a corresponding disagreement" over the meaning
of the War Clause, that disagreement, too, should be resolved by virtue of the
Framers' steadfast opposition to a unilateral executive war-making power and
the absence of support for such a power. If the evidence-the observations,
remarks, and arguments among the Framers, even the general train of their
thoughts and discussion-of the debates in the Convention was decidedly mixed, ambiguous,
and less one-sided, a credible and perhaps persuasive case might be made to the
effect that the discussions and debates in Philadelphia on the issue of the
constitutional repository of the power to commence war are cryptic and
unhelpful. However, this conclusion is not supported by the evidence.
Professor Powell's assertion of a unilateral
executive war-making power, receives no support whatsoever from his invocation
of The Federalist papers, which he characterized as "the most important
ratification-era discussion of the Constitution's meaning. . . ."
In fact, the pertinent commentary in The Federalist exalts congressional
control over the war power. It is indeed puzzling that Professor Powell
altogether ignores the discussion in The Federalist No. 69, in which Hamilton discusses the relative powers of the
president and Congress on matters of war and
peace.
The Convention adopted the title "Commander in Chief" without debate, a
determination that likely reflected the Framers' familiarity with title and its
historical usage. Further, Hamilton had proposed in his plan that the President
"shall have the direction of war when authorized or begun."
Thus, Hamilton's essay in The Federalist No. 69 offers a genuine
reflection of the understanding of both the Convention and the state ratifying
conventions.
Hamilton wrote that the President's authority as commander in chief would be "much
inferior" to that of the British King;
it would amount to nothing more than the
supreme command and direction of the military and naval forces, as first
General and Admiral . . . while that of the British Kings extends to the declaring
of war and to the raising and regulating of fleets and
armies--all which, by the Constitution . . . would appertain to the legislature.
Hamilton's minute
analysis of presidential power had as its aim the goal of defending the proposed
executive from rhetorical attacks by those who, "calculating upon the aversion
of the people to monarchy," attempted to characterize the executive "as the
full-grown progeny of that detested parent."
In truth, Anti-Federalists paid little attention to the issues of war and
foreign affairs powers, primarily because there was little disagreement on
those issues. Indeed, there was a shared understanding on the issue of how the
Constitution allocated foreign relations powers, although Anti-Federalists had
other preferences.
The principal Anti-Federalist commentaries, the essays by "Brutus" and "Letters
of a Federal Farmer," offered no criticisms on the Constitution's treatment of
issues pertaining to the war power, treatymaking, or more generally, matters of
diplomacy. Some Anti-Federalists expressed fears that the President would
become a king and might establish a tyranny by assuming personal command of the
military, but these assertions offered nothing of substance to support the
charges. In fact, the Anti-Federalists' criticized the President in all
areas. Some thought that the President would be too weak, a cipher to the
Senate; others warned that the President would dominate the Senate like a
tyrant. Suffice it to say, as Leonard Levy has noted: "If the Anti-Federalists
believed that the Framers intended the President to dominate foreign policy,
that intention would have become a major focus of Anti-Federalist attack."
Hamilton's explanation in The Federalist No. 69 was the most direct and specific
commentary that Publius offered on the War Clause and the President's role as "first
General and admiral."
As previously discussed, it found a mirror in James Iredell's explanation to
the North Carolina Ratifying Convention:
The King of Great Britain is not only
the commander-in-chief of the land and navel forces, but has the power in time
of war, to raise fleets and armies. He also has the power to declare war. The
President has not the power of declaring war by his own authority, nor
that of raising fleets and armies. The powers are vested in other hands. The
power of declaring war is expressly given to Congress, that is to the two
branches of the legislature. . . .
Moreover, there is no remark in the other The Federalist
papers to suggest a presidential power-expressed or implied-to initiate
military hostilities.
Hamilton's analysis of the President's subordinate
role in war-making reflects the Framers' deeply-held fear of unilateral
executive war-making. Madison echoed the sentiment in 1798 when he wrote to Jefferson: "The
constitution supposes, what the history of all govts. Demonstrates, that
the Ex. 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 Leisl."
Moreover, the concern about presidential unilateralism was not confined to
war-making but encompassed the entire field of foreign affairs. Although
overlooked by Professor Powell, it was Hamilton, himself, who explained in The
Federalist No. 75 why the Convention had withheld from the President a
unilateral authority to make treaties:
The history of human conduct does not
warrant that exalted opinion of human virtue which would make it wise in a
nation to commit interacts of so delicate and momentous a kind, as those which
concern its interests with the rest of the world, to the sole disposal of a
magistrate created and circumstanced as would be a President of the United
States.
Hamilton's reproductions of the "matured
conclusions of the Convention," as Professor Corwin put it, leave little room
for Professor Powell's assertion that "Publius' express descriptions of the [P]resident's
role in foreign affairs may not clearly identify the [P]resident as responsible
for the formulation of foreign policy, but his understanding of the
Constitution's goals and the executive's characteristics seems clearly to point
in that direction."
Broad generalizations about the repository of constitutional authority ought to
rest on evidence, but the case for presidential unilateralism advanced by
Professor Powell ignores Hamilton's explanations in The Federalist Nos. 69
and 75, which emphatically deny presidential "primacy." In addition,
consider Professor Powell's contention that the early practice of the government
reflected an understanding among leading statesmen that the President possessed
the power to use military force by virtue of his authority to "formulate and
implement" the nation's foreign relations.
In early 1793, war erupted between France and Great
Britain. In an effort to avoid entanglement, President Washington issued on April
22 a proclamation of neutrality. Whether this power belonged to the President
or Congress was the subject of a renowned debate between Hamilton and Madison,
who wrote under the pseudonyms of "Pacificus" and "Helvidius" respectively.
Hamilton acknowledged in an instructive passage in his first essay, published
on June 29, that Congress "can alone declare war, can alone actually transfer
the nation from a state of Peace to a state of War," a central theme in his
important essay in The Federalist No. 69.
However, in an argument that provoked criticism from Jefferson and Madison, Hamilton stated: "if the Legislature have a
right to make war on the one hand--it is on the other
the duty of the Executive to preserve peace till war is declared. . . ."
Hamilton claimed no presidential authority to initiate or commence war. Nonetheless,
Madison contended in his response that if the proclamation was valid it meant
that the President had usurped congressional power to decide between a state of
peace or a state of war. Despite this difference, both agreed that the power
to commence war is vested in Congress. Madison wrote:
Every just view that can be taken of this subject
admonishes the public of the necessity of a rigid adherence to the simple, the
received, and the fundamental doctrine of the constitution, that the power to
declare war, including the power of judging of the causes of war is fully
and exclusively vested in the legislature; that the executive has no
right, in any case, to decide the question, whether there is or is not cause
for declaring war; that the right of convening had informing Congress, whenever
such a question seems to call for a decision, is all the right which the
constitution has deemed requisite or proper; and that for such, more than for
any other contingency, this right was given to the executive.
It is to be emphasized that throughout their lives
both Hamilton and Madison maintained that it is for Congress alone to initiate
hostilities.
President Washington's policy of neutrality was
sorely tested by the flamboyant French Minister, Edmund Charles Genet. Genet
sought to rally sympathy and support for the French cause and urged Americans
to ignore the neutrality policy. He issued commissions to American privateers,
flaunted the Administration's calls for restraint, and generally exhibited an
arrogance that, eventually, cost him many of his supporters in the United States. He is said to have
believed that Americans would choose him over President Washington
and insisted on an opportunity to address Congress in special session to woo
and win admirers. This was more than President Washington could tolerate. He
thundered: "Is the Minister of the French Republic to set the Acts of this
Government at defiance, with impunity? and then threaten the Executive
with an appeal to the People? What must the world think of such conduct, and
of the Government of the United States submitting to it?"
It is little wonder that President Washington demanded Genet's recall in early
August.
Before he was recalled, however, Genet engaged in
a particularly flagrant violation of the neutrality policy that ensnared the
Administration in legal, political, and military controversies. In early May
of 1793, a French privateer who was apparently outfitted in Charleston and
whose commander was commissioned by Genet, captured a British merchant vessel
called Little Sarah. The French brought the ship to port in Philadelphia, re-named it the
Little Démocrate, and proceeded to outfit it in a
manner that produced a powerful fighting ship, capable of privateering.
The seizure of the Little Sarah prompted
the British to complain that the neutrality policy had been breached. The United States might have
provided restitution to the British, as Hamilton proposed, but President Washington
agreed with Jefferson that an apology would suffice.
Jefferson believed that if the commander's commission were illegal then a
court might order restitution. However, if the commission was legal then the
French had lawful possession of the vessel, in which case it could be taken
only through military force. Jefferson did not claim that the Administration
might authorize military action. On the contrary, the use of force would
require authorization by Congress: "[I]f the case were important enough to
require reprisal, ripe for that step, Congress must be called on to take it;
the right of reprisal being expressly lodged with them by the constitution, not
with the executive."
President Washington sought to preclude similar
problems when he issued an order requiring all privateers unlawfully outfitted
to "depart from the ports of the United States."
Genet's disregard of President Washington's order, and his issuance of
additional commissions for privateers, generated something of a crisis for the
Administration. On instructions from Genet, the Little Sarah,
now the Petite Démocrate, was refitted and converted into a fourteen-gun
warship. President Washington was at Mount Vernon, and with his return still
several days away, the Cabinet was not sure how to proceed. Secretary of State
Jefferson asked Genet to keep the ship in port until President Washington
returned to Philadelphia. Genet "refused to give any explicit assurance that
the brigantine would continue until the arrival of the President and his
decision in the case, but made declarations respecting her not being ready to
sail within the time of the expected return of the President. . . ." Jefferson reported in a meeting
on July 8 with two other Cabinet members, Secretary of the
Treasury Hamilton and Secretary of War Henry Knox, that he placed "confidence"
in Genet's representations, although as it turned out, his "inference" was
naive.
The Cabinet learned from the Governor of Pennsylvania that "two" of the ship's
cannons had been purchased from French loyalists in Philadelphia.
The apparent and, indeed, serious violations of
the Neutrality Proclamation placed the United States in an awkward and
dangerous position. In the July 8 meeting, Hamilton left no doubt as to the
substance of the illegal acts:
Because there can be no doubt, either
upon principle or authority that the permitting or suffering, or what is the equivalent
of not taking effectual measures to prevent, when known, the fitting out of
privateers, in our ports, by one of the belligerent powers, of cruise against
any of the others is an unequivocal breach of neutrality.
The prospect, indeed the likelihood, of a
privateer fitted out in and sailing from an American port, intent on engaging
the British in military conflict, was embarrassing and galling, particularly
because Hamilton rightly perceived the manipulative efforts of the French to "force
the United States into the war."
This prospect was not a trifling matter. President Washington had placed his
own prestige and integrity on the line when he apologized to the British for
previous breaches of the neutrality policy and offered his "express assurance"
to England "that effectual measures would be taken to prevent a repetition of
the practice."
If, indeed, the Petite Démocrate sailed into the Atlantic and attacked
British ships, one could certainly join Hamilton in wondering about the depth
of British patience. In fact, the cumulative violations of the neutrality
policy, which Hamilton noted would "contravene the positive assurance" provided
by President Washington, might well have plunged the United States into war
with Great Britain.
Hamilton's concern about war with England was grounded in his realization
of the fact that Genet's actions would render the United States vulnerable to Great Britain's complaint that it was
violating its own policy of
neutrality. The law of nations had evolved to a point in the late eighteenth century
where belligerents had an obligation to respect a state's neutrality and
neutral states had a duty to prevent violations of its neutrality.
Hamilton observed that the nation thus had a duty to take "effectual measures
to prevent" privateering, for such a practice constituted an "unequivocal
breach of neutrality."
The duty imposed upon a nation to enforce its neutrality policy carried with it
the additional concomitant right to employ force against the country that was
violating its territorial sovereignty.
The right of a neutral country to resist forcefully attempts to violate its
neutrality was not regarded as a hostile act but was regarded merely as a
measure to enforce the laws of a sovereign state. Accordingly, Hamilton, along with Secretary of War
Knox, thought the United States ought to establish a
battery on Mud Island in the Delaware River, supported by an adequate number of
militia, to "prevent" the Petite Démocrate from sailing into the Atlantic to fight British ships.
As Hamilton explained it, "France would have justly nothing to complain of in
reference to an act, which was merely a vindication of our own sovereignty--in
our own territory--against a manifest deliberate and outrageous violation of it
by her Agent."
It was thus within the context of a defensive
action, as a "vindication" of the United States' territorial sovereignty and as
an effort to enforce the proclamation of neutrality, that Hamilton defended the
proposal to place a battery on Mud Island, "with direction [to the militia]
that if the brig Sarah should attempt to depart before the pleasure of the
President shall be known concerning her, military coercion be employed to
arrest and prevent her progress."
Jefferson disagreed with his colleagues. He
expressed confidence in Genet's opinion that the vessel would not sail before President
Washington's return, but in any event, he believed the erection of a "battery
and mounting guns" would be counterproductive because it "might cause a
departure not more intended, and produce the fact that it is meant to prevent."
Moreover, any effort to stop the Petite Démocrate would undoubtedly
result in "bloody consequences" and continued violence. In fact, Jefferson noted that the arrival of
a substantial fleet of French fighting vessels was
expected at any moment, and that fleet would "arrive at the scene of blood in
time to continue it, if not to partake in it."
Jefferson, then, sought to avoid war and, in any case, thought the
actual commencement of hostilities,
against a nation, for such this act may be, is an act of too serious
consequence to our countrymen to be brought on their heads by subordinate
officers, not chosen by them, nor clothed with their confidence; and too
presumptuous on the part of those officers, when the chief magistrate, into
whose hands the citizens have committed their safety, is within eight and forty
hours of his arrival here. . . .
Jefferson's confidence
in Genet's opinion had been misguided. Before President Washington returned to
Philadelphia, the Petite Démocrate had left the Delaware River and had
sailed into the Atlantic.
In this entire episode, there was no use of force;
nor was there an assertion by any of the principals-Washington, Hamilton,
Jefferson, and Knox-of a unilateral presidential power to use force. Yet,
Professor Powell has found in it a recognition of a unilateral executive
authority to initiate military hostilities without congressional authorization.
For example, he contended that the episode revealed
an impressive unity of opinion among
Washington, Jefferson and Hamilton that the [P]resident could utilize his
authority as commander-in-chief, at least to some extent, to execute his views
of the obligations of the United States under the law of nations, without the
need for express statutory or treaty-based authority to do so.
Moreover, "[President] Washington and his advisors
clearly believed that the [P]resident's authority with respect to foreign
affairs carried with it some power to take military action without congressional
sanction in order to achieve the executive's goals."
In his desire to adduce evidence of an independent
presidential power to authorize military hostilities without the sanction of
Congress, something akin to drawing water from a dry well, Professor Powell has
miscast this episode. Professor Powell has expressed several valid points.
The practice of commissioning privateers constituted a risk to national
security. President Washington's advisers believed the use of American
military force might provoke war with either Great Britain or France. For that matter, at least two
advisers-Hamilton and Knox-believed that a failure to take
any action against the Petite Démocrate might risk war with England. Finally, all three
advisers believed that President Washington possessed the
legal authority to authorize the use of military force to prevent the French
vessel from reaching the Atlantic. However, all of this agreement does not
support Professor Powell's claim of an "impressive unity of opinion among
Washington, Jefferson and Hamilton" that the "resident possesses a unilateral
power to initiate or commence war."
If anything, the Little Sarah incident
served to raise the question of the President's power to use military force to
protect the territorial integrity of the United States, a question seemingly
answered in the Constitutional Convention itself, where delegates agreed that
the President, as commander in chief, was authorized to "repel sudden attacks."
It certainly seems clear that a belligerent ship in an American port, which has
repeatedly violated American neutrality policies and which intends to sail into
the Atlantic with the assistance of American citizens in violation of national
security policy, constitutes a serious offense within reach of the President's
authority as commander in chief. Yet, suppose we waive the objection that the
mere presence of the privateer within American waters was not comparable to the
sudden attack or invasion that the Framers envisioned. It is nevertheless the
case that the use of force might be required as an act of last resort to
enforce a policy viewed and treated--at least for a while--as law by the courts.
As Professor Powell noted, the Washington Administration, to its credit,
attempted to leave the matter of enforcing the neutrality proclamation in the
hands of governors, U.S. Attorneys, and courts, but it soon recognized that
military force might be necessary to enforce the laws and prevent war.
This episode is not one conducive to Professor
Powell's cause. It does not evince an understanding among President Washington
and his advisers that "the president's authority with respect to foreign
affairs" carried with it some power to initiate war abroad. This episode drew
upon the President's authority as commander in chief in a manner comparable to
his duty to "repel sudden attacks." Moreover, the fact that President Washington
sought from the Supreme Court an opinion on a variety of questions about the
neutrality policy reflected uncertainty, not confidence.
Furthermore, the very premise of a presidential
power to issue a neutrality proclamation-defended by Hamilton and attacked by Madison-was rejected by the legal
system. The Administration encountered great difficulty
in its efforts to enforce the neutrality proclamation. For example, consider
the case of Gideon Henfield, an American commander of the French privateer, who
was tried for his violation of the neutrality policy.
The jury acquitted Henfield on the grounds that criminal law should be based on
statutes passed by legislative bodies.
Without a statute to enforce, the Administration was forced to drop its
prosecutorial efforts. Of course, President Washington sought and obtained
passage by Congress in 1794 of a Neutrality Act.
The early practice of the U.S. government on matters of war and peace
confirms the understanding of the Framers: Congress has
the sole and exclusive authority to initiate war. In contrast to Professor
Powell's assertions, the early practice confirms that Washington, Hamilton, and
Jefferson shared the Convention's understanding.
As President, Washington exhibited an appreciation
of the fact that the Constitution vests the war power in Congress, and indeed,
he routinely deferred issues of war and peace to Congress.
His posture on matters involving the Chickamaugas is instructive. In 1792,
William Blount, the governor of the Southwest Territory, indicated in a letter
to Secretary of War Henry Knox his fears about an impending attack by the
Chickamaugas.
Knox replied in a letter of October 9, 1792 that Congress "possesses the power
of declaring war" and "until their judgments shall be made known it seems
necessary to confine all your operations to defensive measures."
On November 26, Knox sent another letter to Blount in which he explained that President
Washington believed he lacked the authority to act: "He does not conceive
himself authorized to direct offensive operations against the Chickamaugas. If
such measures are to be pursued they must result from the decisions of Congress
who solely are vested with the power of war."
Two weeks later, on December 7, President Washington forwarded to Congress two
of Blount's letters and Knox' reply and stated: "It remains to be considered by
Congress whether in the present situation of the United States it is advisable
or not to pursue any further or other measures than those which have already
been adopted."
President Washington continued to adhere to the
understanding of the Convention. In 1793, he emphasized that the contemplation
of hostilities against the Creek Nation fell within the province of Congress: "The Constitution vests the power of declaring
war with Congress; therefore no
offensive expedition of importance can be undertaken until after they have deliberated
upon the subject, and authorized such a measure."
President Washington's reasoning, explanation,
words, and orders in the context of potential hostilities against Native
Americans speaks volumes for his keen understanding of the constitutional principles
that govern issues of war and peace. Moreover, his statements and acts
represent specific commentary on these questions and are better indications of
his position on such questions than the inferences drawn by Professor Powell in
the Little Sarah episode. Secretary of War Knox, who with Hamilton and
Jefferson, was one of the principals involved in that episode, ably represented
his view on the exclusive war power of Congress in the key role he played in
the tense situations involving the Chickamaugus and the Creeks.
Furthermore, in 1795, in response to a suggestion from Governor Blount that
Congress might authorize a military force to attack and perhaps "destroy the
Creek Nation," Knox stated: "Congress alone are competent to decide upon an offensive
war, and Congress have not thought fit to authorize it."
Hamilton's understanding that Congress possesses
the constitutional authority to initiate war, from his first efforts to
articulate the aims of the Convention in of The Federalist No 69, was
reaffirmed in the latter years of the eighteenth century. In 1798, France repeatedly raided and
seized American vessels. On April 27, 1798, Congress passed a law that increased the size of the
navy. Secretary of War James McHenry,
who seemed to want war, asked Hamilton if the legislation authorized the
President to initiate hostilities. Hamilton responded on May 17:
Not having seen the law which provides the naval
armament, I cannot tell whether it gives any new power to the President;
that is, any power whatever with regard to the employment of ships. If not,
and he has any other power than merely to employ the ships as convoys, with
authority to repel force by force (but not to capture) and to
repress hostilities within our waters, including a marine league from our
coasts. Anything beyond this must fall under the idea of reprisals, and
requires the sanctions of that department which is to declare or make war.
During his first administration, President Thomas
Jefferson was confronted with attacks on American shipping in the Mediterranean
by the Pasha of Tripoli, who also demanded annual tribute from the United States. Jefferson wrote the
Pasha on May 21, 1801 to inform him that he was ordering a "squadron of observation" to the Mediterranean to protect U.S.
commerce. While the ships were forbidden to take offensive action, one U.S. vessel, the
Enterprise, was attacked. Lieutenant Andrew Sterret of the Enterprise
rendered the attacking ship dead in the water and released it. On the occasion
of his first annual message to Congress on December 8, 1801, President Jefferson adopted the Hamiltonian position and
explained:
Unauthorized by the Constitution, without the sanction
of Congress, to go beyond the line of defense, the [Tripolitan] vessel, being disabled
from committing further hostilities, was liberated with its crew. The
legislature will doubtless consider whether, by authorizing measures of offense
also, they will place our force on an equal footing with that of its
adversaries. I communicate all material information function confided by the
constitution to the Legislature exclusively their judgment may form itself on a
knowledge and consideration of every circumstance of weight.
However, President Jefferson's legal argument was
met with harsh criticism from Alexander Hamilton, who thought the release of
the Tripolitan vessel contemptible but nonetheless maintained:
The Congress shall have power to declare war; the
plain meaning of which is, that it is the peculiar and exclusive province of Congress, when the
nation is at peace, to change that state of war;
whether from calculations of policy, or from provocations or injuries received;
in other words, it belongs to Congress only to go to war. But when a
foreign nation declares or openly and avowedly makes war upon the United States, they are then by the very fact already
at war, and any declaration on
the part of Congress is nugatory; it is at least unnecessary. . . . Till the
Congress should assemble and declare war, which would require time, our ships
might, according to the hypothesis of the message, be sent by the President to
fight those of the enemy as often as they should be attacked, but not to
capture and detain them; if beaten, both vessels and crews would be lost to the
United States; if successful, they could only disarm those they had overcome,
and might suffer them to return to the place of common rendezvous, there to
equip anew, for the purpose of resuming their depredations on our towns and on
our trade."
Hamilton probably attacked President Jefferson for
partisan reasons. The Tripolitan vessel had been rendered impotent and there
was no further threat to "our trade" let alone "our towns." Thus, it was
proper for President Jefferson to refer the matter to Congress, as that body
has the authority to change a state of peace into a state of war. At any rate,
on February 6, 1802, Congress passed an act that met the concerns of Jefferson
and Hamilton. The act empowered the President "fully to equip, officer, man,
and employ such of the armed vessels of the United States as may be judged
requisite by the President of the United States, for protecting effectually the
commerce and seamen thereof on the Atlantic ocean, the Mediterranean and
adjoining seas"; to instruct the commanders to "subdue, seize, and make prize
of all vessels, goods and effects, belonging to the Bey of Tripoli, or to his
subjects[;] . . . and also to cause to be done all such other acts of
precaution or hostility as the state of war will justify, and may, in his opinion,
require."
President Jefferson's understanding of the War Clause
underwent no revision. On December 6, 1805, Jefferson informed Congress of the
dispute with Spain over the boundaries of Louisiana and Florida. President Jefferson
said that Spain evidenced an
intention to advance on our possessions until they
shall be repressed by an opposing force. Considering that Congress alone is
constitutionally invested with the power of changing our condition from peace
to war, I have thought it my duty to await their authority for using force. . .
. But the course to be pursued will require the command of means which it
belongs to Congress exclusively to yield or to deny. To them I communicate
every fact material for their information and documents necessary to enable
them to judge for themselves. To their wisdom, then, I look for the course I
am to purse, and will pursue with sincere zeal that which they shall approve.
Like President Jefferson, President James Madison
was aggrieved by the punishment and harassment inflicted on U.S. vessels. On June 1, 1812, he
expressed to Congress his extreme resentment of the British
practice of seizing American ships and seamen and of inducing Indian tribes to
attack the United States. President Madison complained:
We behold, in fine, on the side of Great Britain a state of war against the United States, and on
the side of the United States a state of peace toward Great Britain. Whether the United States shall
remain passive
under these progressive usurpations and these accumulating wrongs, or, opposing
force, to force in defense of their nationals rights shall commit a just cause
into the hands of the Almighty Disposer of Events, avoiding all connections
which might entangle it in the contest or views of other powers, and preserving
a constant readiness to concur in n honorable reestablishment of peace and
friendship, is a solemn question which the Constitution wisely confides to the
legislative department of the Government. In recommending it to their early
deliberations I am happy in the assurance that the decision will be worthy the
enlightened and patriotic councils of a virtuous, a free, and a powerful
nation.
This exercise in presidential restraint speaks
volumes for the intentions of the Framers with respect to the initiation of
hostilities. As the leading architect of the Constitution and as a principal
actor in the debate on the War Clause, President Madison certainly knew that
when the question arises of whether the United States should oppose force with
force, it is a "solemn question which the Constitution wisely confides to the
legislature department of the Government." This view exactly coincides with
his earlier position. In 1793, President Madison had written that "the power
to declare war, including the power of judging the causes of war, is fully and
exclusively vested in the legislature; that the executive has no right, in any
case, to decide the question, whether there is or is not cause for declaring
war. . . ." He continued:
Those who are to conduct a war cannot in
the nature of things, be proper or safe judges, whether a war ought to be
commenced, continued, or concluded. They are barred from the latter functions
by a great principle in free government, analogous to that which separates the
sword from the purse, or the power of executing from the power of enacting
laws.
Conclusion
Professor Powell's effort to adduce on originalist
terms a unilateral executive authority to initiate hostilities falls short on
evidentiary grounds. His assertion finds no support in the text of the
Constitution, the debates in the Constitutional Convention, or the various
state ratifying conventions, nor may we add, does it find succor in The
Federalist papers, in the early practice of the government, or in the
wealth of judicial decisions rendered at the Dawn of the Republic. In sum,
Professor Powell's claims find no support in the architecture of the
Constitution. The Framers did not leave the repository of the war power in a
state of ambiguity, nor did they leave it to the vague premises of implied
powers. Rather, Congress was vested with the sole and exclusive authority to
authorize military hostilities. Arthur Schlesinger, Jr. has observed that "[d]emocracy
faces no more momentous decisions than those of peace and war and such
decisions confront the conduct of foreign policy with its most crucial and
sensitive challenges."
The founding generation, fresh from the trauma and travails of the
Revolutionary War and repelled by justifications of prerogative powers in
foreign affairs and war-making, rejected "Old Europe" and the planks on which
that platform rested and replaced it with republican values that exalted the
virtues of collective decisionmaking. Seldom has the historical record spoken
with such clarity on a matter of such critical importance to the nation. Thus,
revisionists' efforts to defend presidential war-making on originalist grounds
have been singularly unsuccessful.
Other arguments, often based on policy concerns or political agendas, have been
adduced, and they, too, are equally unpersuasive, but they are not of concern
here, and their consideration must await another occasion.
. H. Jefferson Powell, The President's
Authority Over foreign Affairs: An Essay in Constitutional Interpretation
(2002) [hereinafter Powell, President's
Authority].
. H. Jefferson
Powell, The President's Authority Over Foreign Affairs: An Executive Branch
Perspective, 67 Geo. Wash. L. Rev. 527
(1999); H. Jefferson Powell, The Founders and the President's Authority Over
Foreign Affairs, 40 Wm. & Mary
L. Rev. 1471 (1999).
. Professor Powell
observed that "America possesses almost incalculable power to affect the lives
of people all over the globe." Powell,
President's Authority, supra note
1, at xiii. Thus, the repository of authority to formulate and conduct foreign
policy is once of "great importance." Id.
. Professor Powell
observed: "There is an enormous body of scholarship on this topic, however, I
think that the current state of the discussion is
unsatisfactory." Id. Nevertheless, he concedes that "most
scholars believe that the
Constitution" assigns to Congress "the dominant hand in the establishment of
basic policy regarding foreign relations." Id. (quoting Francis D. Wormuth & Edwin
B. Firmage, To
Chain the Dog of War: The War Power of Congress in History and Law 177 (1986)). Yet, he rightly noted that the executive
branch "often asserts what appears to be a diametrically opposed view: the
Constitution, according to the [P]residents and their lawyers, vests the
[P]resident with 'plenary authority'" over the conduct of United States foreign relations. Id.
at xiv.
. Professor Powell
stated: "A great deal of contemporary constitutional scholarship starts from
one or more commitments of the scholar which are external to the law, and
attempts to develop means by which those commitments can be served within and
through constitutional law." Id. at ix. Powell did not wish "to accuse
anyone of insincerity," but he noted that one's views on the subject of the
conduct of foreign policy may "accord with one's political views on the party
in (executive) power, with academics only an apparent exception." Moreover,
"the professoriat as a whole is politically liberal and as a sociological
matter the majority pro-Congress view among scholars can be understood as a
reaction to Vietnam and a general dislike for international power politics of
the sort that Democratic no less than Republican administrations engage in." Id.
I cannot claim to speak for
others, but this
sort of characterization seems unnecessary in the scheme of things. Professor
Powell, to his credit, acknowledged (deservedly so) his professional work for
the Office of Legal Counsel. Should one conclude that his pro-presidency
position derives from his predilections, as opposed to conclusions derived from
the evidence? In my case, I have consistently tried to distinguish my
political and policy preferences from my understanding of what the Constitution
means and requires. For example, I concluded that President Jimmy Carter
lacked the constitutional authority to unilaterally terminate the 1954 Mutual
Defense Treaty with Taiwan, although I embraced and supported the termination,
as a political and policy matter. David
Gray Adler, The Constitution and the Termination of Treaties 341 (1985). Similarly,
I criticized President Bill Clinton's usurpation of the war power in his effort
to halt Slobodan Milosevic's slaughter of ethnic Albanians but thought the
policy was "justified on moral and policy grounds." David Gray Adler, The
Law: The Clinton Theory of the War Power, 30 Presidential Stud. Q. 155 (2000). Simply put, the wisdom of
the policy did not relieve President Clinton of the constitutional requirement
of obtaining prior authorization from Congress.
. Paul Brest
encouraged scholars "simply to acknowledge that most of our writings [about
judicial review] are not political theory but advocacy scholarship--amicus
briefs ultimately designed to persuade the Court to adopt our various notions
of the public good." Paul Brest, The Fundamental Rights Controversy: The
Essential Contradiction of Normative Scholarship, 90 Yale L. J. 1063, 1109 (1981).
Professor Powell would shun external political and policy preferences in favor
of an "interpretation of the Constitution that rests on bases within the law.
Such an approach is necessary if there is to be a discipline of constitutional
law with any integrity of its own, and (unlike some) I believe that such a
discipline is possible." Powell,
President's Authority, supra note 1, at ix. On this ground,
Powell is in accord with John Marshall, who observed that, "the peculiar
circumstances of the moment may render a measure more or less wise, but cannot
render it more or less constitutional." John Marshall's Defense of McCulloch v. Maryland 190-91 (Gerald Gunther ed., 1969).
. Powell, President's Authority, supra
note 1, at 122.
. See generally David Gray Adler, Court, Constitution and Foreign Affairs, in
The Constitution and the Conduct of
American Foreign Policy 49-57 (David
Adler Gray & Larry N. George eds.,
1996); [hereinafter Adler, Court, Constitution]. Harold Hongju
Koh, Why the President Almost Always Wins in Foreign Affairs, in The Constitution and the
Conduct of American Foreign Policy 158-180
(David Gray Adler & Larry N. George eds., 1996); Michael J. Glennon, Constitutional
Diplomacy (1990).
. Powell, President's
Authority, supra note 1, at xv.
. Edward S. Corwin, The President: Office and
Powers, 1787-1984, at 200 (Randall W.
Bland et al. eds., 5th ed. 1984).
. Id. at 200-01. Corwin noted that the Framers of the
Constitution rejected the concept of executive domination. Id. at 462, n.1.
. Id. at 201, 215, 462 n.1.
. Powell, President's Authority, supra
note 1, at 5-7.
. Id. at 26 (quoting Philip
Bobbitt, Constitutional Fate
7 (1982)).
. Missouri v. Holland, 252 U.S. 416, 433
(1920).
. Charles L. Black, Jr.,
Structure and Relationship in Constitutional Law 31 (1969).
. Powell, President's
Authority, supra note 1, at 27.
. Judge Learned Hand
observed that it is "one of the surest indexes of a mature and developed
jurisprudence not to make a fortress out of a dictionary, but to remember that
statutes always have some purpose or object to accomplish, whose sympathetic
and imaginative discovery is the surest guide to their meaning." Cabell v. Markham, 148 F. 2d 737, 739 (1945).
. Powell, President's
Authority, supra note 1, at 27. Thomas Jefferson described The
Federalist papers as a work to which "appeal is habitually made by
all, and rarely declined or denied by any as evidence of the general opinion of
those who framed, and of those who accepted the Constitution . . . on questions
of its genuine meaning." Clinton Rossiter, Alexander Hamilton and the Constitution 227 (1952). Madison had high hopes for
The Federalist papers: "If the whole plan should be
executed, it will present to the public a full discussion of the merits of the
proposed Constitution in all its relations." Albert
Furtwangler, The Authority of
Publius: A Reading of the Federalist Papers 82 (1984). Professor Corwin
described it as representing "the matured conclusions of the convention
itself." Edward
S. Corwin, The Doctrine
of Judicial Review 44 (1914).
. Powell, President's Authority, supra
note 1, at 31.
. Under the Articles
of Confederation, Congress lacked effective authority to generate revenues,
enforce treaties, raise armies, or wage war. In The Federalist No. 15, Hamilton lamented: "We have neither troops, nor treasury, nor
government." The Federalist No. 15,
at 87 (Alexander Hamilton) (Modern Library ed., 1937). Historians have observed
that the failure of states to fulfill treaty obligations made under the
Articles of Confederation was one of the principal factors leading to the
Constitutional Convention. See, e.g., Charles Warren, The Making of the Constitution 5 (1967). It is well established that the Framers
were gravely concerned about the contempt with which foreign nations viewed the
United States because of its frequent breaches of international
agreements. Max Farrand, Records of the Federal Convention
of 1787, at 548-49 (1966); Thomas
Bailey, Diplomatic History of the
American People 52 (8th ed. 1968).
. In The Federalist No. 22, Hamilton complained: "The Treaties of the United States, under the
present Constitution are liable to the infractions of thirteen different legislatures,
and as many different courts of final jurisdiction, acting under the authority
of those legislatures." The Federalist
No. 22, at 139 (Alexander Hamilton) (Modern Library ed., 1937).
. In the Convention,
Madison questioned whether the proposed Paterson Plan would
prevent those violations of the law of nations and of
treaties which if not prevented must involve us in the calamities of foreign
wars? The tendency of the States to these violations has been manifested in
sundry instances. The files of [Congress] contain complaints already, from
almost every nation with which treaties have been formed. Hither to indulgence
has been shewn to us. This cannot be the permanent disposition of foreign
nations. A rupture with other powers is among the greatest of national
calamities. It ought therefore to be effectually provided that no part of a
nation shall have it in its power to bring them on the whole. The existing
confederacy does not sufficiently provide against this evil. The proposed
amendment to it does not supply the omission. It leaves the will of the states
as [uncontrolled] as ever."
1 Farrand,
supra note 40, at 316.
. The Federalist No. 22, at 139
(Alexander Hamilton) (Modern Library ed., 1937).
. Reid v.
Covert, 354 U.S. 1, 16-17 (1957).
. Federalist No. 47, at 314
(James Madison) (Modern Library ed., 1937).
. Powell, President's Authority, supra note 1, at 125.
. For discussion,
see Introduction to Adler, Court, Constitution, supra note
10, at 1-6; Id. at 19-22.
. Id.. Madison stated that Hamilton "happened to call on me when putting the last
hand" to his
report of the speech. Hamilton "acknowledged its fidelity, without suggesting
more than a few verbal alterations which were made." 1 Farrand, supra note 40, at 293 n9.
. Professor Powell
overlooked the discussion on June 1 that focused on the Randolph Plan and that
evoked expression of concerns and fears about unilateral executive war-making.
1 Farrand, supra note 40, 64-66, 70, 73-74.
. 1 Farrand, supra note 40, at
66, 70.
. 2 Farrand, supra note 40, at
181-82.
. Henry Steele Commager, Documents of American History 133 (7th
ed. 1963). Charles Warren observed that this power, as well as others, came
"bodily from the old Articles of Confederation." Charles Warren, The
Makings of the Constitution 389 (1947).
. 2 Farrand, supra note 40, at 318.
. Powell, President's
Authority, supra note 1, at 116.
. Powell, President's
Authority, supra note 1 at 117-118.
. 2 Jonathan Elliot, Debates in the Several State
Conventions on the Adoption of the Federal Constitution 528 (2d ed.
1836). Robert McCoskey wrote that Wilson was the "most learned and profound
legal scholar of his generation." 1 Works
of James Wilson 2 (R. G. McCloskey ed., Harvard University Press 1967).
. Madison to
Jefferson, May 13, 1798, quoted in Leonard D. White, The
Federalists 65 n.58 (1948).
. The Federalist No. 75, at 487
(Alexander Hamilton) (Modern Library ed., 1937). The Founders' fear of
unilateral presidential warmaking was grounded in a deeply-rooted suspicion
that an executive might plunge the nation into war for less than meritorious
reasons. See generally David Gray Adler, Presidential Greatness as
an Attribute of Warmaking, in 33 Presidential Stud. Q. 466 (2003).
. See 2 Elliot, supra note 105, at 507.
. In the First
Congress, Roger Sherman, who had been a delegate in Philadelphia, argued in
defense of the shared-powers arrangement in foreign affairs and stated: "The
more wisdom there is employed, the greater security there is that the public
business will be well done." Annals of
Congress 1085 (1789).
. For discussion of
the argument that these clauses are a source of unilateral executive war-making,
see generally David Gray Adler, The Constitution and Presidential
War-making: The Enduring Debate, 103 Pol. Sci. Q. 1,
8-17 (1988) [herinafter Presidential War-making].
. Powell, President's
Authority, supra note 1, at 121-23.
. Professor Powell
has argued that the "use of military forces is a tool of foreign policy" and
that it inheres in the executive by virtue of the President's authority to
formulate and manage American foreign policy. See id. at 122.
Moreover, the ability of the President "to use the threat of military action would
be empty" if he were required to obtain prior authorization from Congress. The
view that this authorization is required, Professor Powell writes, is
"erroneous." Id. at 119. The Framers, however, attributed to the
President no authority to initiate military hostilities.
. Francis D.
Wormuth, The Nixon Theory of the War Power: A Critique, 60 Cal. L. Rev. 623, 630 (1972).
. For example, the
Continental Congress ordered Washington to Massachusetts to take command of the
United Colonies. 2 Journal
of the Continental Congress 101
(1904-1937). President Washington was directed to intercept two British
vessels on October 5, 1775. Id.
. 3 Farrand, supra note 40, at 606.
. Francis Newton Thorpe, The Federal and State Constitutions, Colonial Charters, and
other Organic Laws 3243, 3249 (1909).
. In the Virginia
Ratifying Convention, George Mason, who had been a delegate to the
Constitutional Convention, admitted
the propriety of his being commander in
chief, so far as to give orders and have a general superintendency, but he
thought it would be dangerous to let him command in person, without any
restraint, as he might make a bad use of it. He was, then, clearly of [the]
opinion that the consent of a majority of both houses of Congress should be
required before he could take the command in person.
3 Elliot, supra note 105,
at 496. James Monroe and Patrick Henry voiced similar concerns. See id.
at 59, 220.
. Id. at 107-08. As a member of the Supreme Court,
Justice Paterson, a Framer from New Jersey, held that it was for Congress
alone to declare war. United States v. Smith, 27 F. Cas. 1192, 1196-97
(C.C.D.N.Y. 1806)
. Federalist No. 75, at 448. (Alexander Hamilton) (Modern Library ed.,
1937).
. Louis Henkin, Foreign Affairs and the
Constitution 50-51 (1972).
. See, e.g.,
John Norton Moore, The National Executive and the Use of Armed Forces Abroad,
in 2 The Vietnam War and
International Law 814 (Richard Falk ed., 1969); Leonard Ratner, The
Co-ordinated War-making Power--Legislative, Executive and Judicial Roles, 44
S. Cal. L. Rev. 19, 467 (1971)
("The war-making authority of the President, implied by his role as executive
and commander in chief and by congressional power to declare, but not make,
war.").
. Huloet's
Dictionary provided this definition: "Declare warres. Arma Canere, Bellum
indicere." We have here two meanings: (1) to summon to arms and (2) to announce
war. Francis D.
Wormuth & Edwin B. Firmage, To Chain the Dog of War 20
(1986) (quoting Huloet's
Dictionary).
. An authoritative
treatise on English law stated: "To the King alone it belongs to make peace and
war," as well as "the king has the sole authority to declare war and peace." 1744 Comyn's Digest. For a
discussion of the understanding of international law, see Lofgren, War-making
Under the Constitution: The Original Understanding, 81 Yale L.J. 672 ,685-95 (1972).
. I James Kent, Commentaries on American Law 55 (2d ed. 1896).
. 5 U.S. (1 Cranch) 1 (1801).
. Lofgren, supra note 136, at 685-95.
. According to
Emmerich de Vattel, the leading international law publicist, a conditional
declaration of war, an ultimatum demanding satisfaction of grievances, ought
properly precede a declaration of general war. Emmerich de Vattel, The Law of Nations 254-57. (Charles Fenwick trans., 1916).
. Miller v.
The Resolution, 2 U.S. (2 Dall.) 12, 21 (1782).
. See generally Presidential War-making, supra note 114, at 26-29.
. 5 U.S. (1 Cranch) 1 (1801).
. 5 J. B. Moore, The Collected Papers of John Bassett Moore 195-96 (1944).
. 2 Farrand, supra note 40, at 318.
. 27 F. Cas. 1192,
1230 (C.C.D.N.Y. 1806).
. 1 Farrand, supra note 40, at
73-74.
. Professor Powell
wrote: "In some measure, and for some of them, the president's authority over
foreign policy stemmed from Article II's vesting of executive power in the
president. . . ." Powell, President's
Authority, supra note 1, at 93-94. Nothing in The Federalist papers supports this claim.
. 2 Farrand, supra note 40, at
498-99.
. 1 Farrand, supra note 40, at
291-93.
. For an excellent
discussion of the origins and development of the use of letters of marque and
reprisal, with an application to contemporary covert war, see Jules Lobel, Covert
War and Congressional Authority: Hidden War and Forgotten Power, 134 U. Pa. L. Rev. 1035 (1986).
. 1 Blackstone, Commentaries on the Laws of England 258. In 1801, Chief Justice
Marshall held for the Court that the "whole powers of war" are granted to
Congress which, he said, may authorize general or partial hostilities. Talbot
v. Seeman, 5 U.S. (1 Cranch) 1, 28 (1801).
. For a review of
Blackstone's catalogue of foreign affairs powers within the King's prerogative,
see Bestor, Separation of Powers in the Domain of Foreign Affairs: The
Intent of the Constitution Historically Examined, 5 Seton Hall L. Rev. 527, 530-34 (1974). For an excellent
discussion of the prerogative power in England, see Francis D. Wormuth,
The Royal Prerogative, 1603-1649 (1938), and his justly acclaimed The Origins of Modern Constitutionalism
(1948), for a continuation of the story.
. 2 Farrand,
supra note 40, at 187.
. Bestor, supra
note 156, at 610.
. 7 John Bassett Moore, A Digest of International Law 123 (1906).
. See, e.g.,
Bas v. Tingy, 4 U.S. 37 (4 Dall. 37) (1800); Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28 (1801); see also United
States v. Smith, 27 F. Cas. 1192, 1230 (No.
16342) (C.C.D.N.Y. 1806).
. Powell, President's
Authority, supra note 1, at 127.
. 1 Farrand, supra note 1, at 292.
. Charles Lofgren
observed that "the evidence indicates" that the Hamiltonian view of "the
President's authority as commander-in-chief . . . accorded well with that of
his contemporaries in the state debates." Charles Lofgren, War-making Under
the Constitution: The Original Understanding, 81 Yale L. J. 672, 687 (1972).
. The Federalist No. 69, at 448
(Alexander Hamilton) (Modern Library ed., 1933) (emphasis in original).
. The Federalist No. 67, at 436
(Alexander Hamilton) (Modern Library ed., 1933).
. See generally Herbert J. Storing, The Complete
Anti-Federalist (1981); Cecilia
M. Kenyon, The Anti-Federalists, at xxi-cxxii.
. Leonard Levy, Original Intent and the Framers'
Constitution 51 (1988).
. 4 Elliot, supra note 105, at
107-08.
. Letters of
Helvidius, in 6 Writings
of James Madison 312.
. The Federalist No. 75, at 487
(Alexander Hamilton) (Modern Library ed., 1933).
. Edward S. Corwin, The Doctrine of
Judicial Review (1914); Powell, President's Authority, supra
note 1, at 96.
. For a reprint of
the debates, see Richard Loss, The
Letters of Pacificus and Helvidus (1976).
. Pacificus, No. 1,
in 15 The Federalist Papers of
Alexander Hamilton 42. In the same essay, Hamilton noted specifically
"the right of the Legislature to declare war and grant letters of marque and
reprisal." Id. at 39. In The
Federalist No. 69, Hamilton emphasized
that to the practice in England, where the King possesses the power. Id. at 448.
. 15 The Works of Alexander Hamilton 40. Note Hamilton's emphasis
on the power of Congress to initiate war.
. Helvidius, No. 1,
in 6 Writings of James Madison
174 (G. Hunt ed.).
. 12 Washington
Writings 302.
. "In fact, Genet did not return to France, where he faced arrest and perhaps execution by the New
Jacobin government. He retired to New York, married well, and lived out his life as a country
gentleman. He became a citizen
in 1804." The Cambridge History of
American Foreign Relations; Bradford
Perkins, The Creation of a Republican Empire, 1776-1865, at 90 (Cambridge 1993).
. Jefferson to
Washington, May 16, 1793, in 14 The
Works of Alexander Hamilton
454, 458.
. Opinion of The Little Sarah, May 16, 1793, in 6 Jefferson Writings 259.
. Jefferson to
Genet, June 5, 1793, in 6 Jefferson Writings 282.
. 26 Jefferson
Writings 446. As it happened, the French vessel left port and reached
the Atlantic before Washington returned.
. 15 The Works of Alexander Hamilton 74.
. Id. at 75. Hamilton emphasized the "direct advantage"
to the French if America were to be drawn into the war, and he perceived
"satisfactory evidence" of such an attempt.
. See generally Emmerich de Vattel,
The Law of Nations or the Principles 274-78 (1758). For discussion of
the early development of the law of neutrality, see Lassa Oppenheim, 2 International Law 623-42 (7th ed. 1952); W. E. Hall, The Rights and Duties of Neutrals
(1874).
. The United States' position on this point
remained consistent.
In the case of the General Armstrong,
an American privateer which had been attacked by a British Cruiser in
Portuguese waters in 1814, the United States demanded redress of Portugal for its failure to protect the vessel, although
the claim was disallowed by the
arbitrator on the ground that the vessel had not asked protection from the
Portugese authorities.
Charles Fenwick, International
Law 648 (Appleton-Century-Crofts eds.,
1948).
. See The Armed Neutralities of 1780 and 1800, at 299, 531 (James Brown
Scott ed., Oxford U. Press 1918); Emmerich de Vattel, The Law of Nations or the Principles
268-79 (1758).
. 15 The Works of Alexander Hamilton 70-71.
. 26 Jefferson
Writings 449-50.
. Powell, President's Authority, supra
note 1, at 54.
. A total of 29
questions were submitted to the Court on July 18, but the Court declined
because it is precluded by Article III of the Constitution from rendering
advisory opinions.
. Washington
requested Congress "to extend the legal code and the jurisdiction of the Courts
of the United States to many cases which, thought dependent on principles
already recognized, demand some further provisions." 4 Annals of Congress 11. See generally Wharton, State Trails, supra note
200, at 84-85, 88 (1849).
. 4 The Territorial Papers
of the United States 195 (Clarence Edward
Carter ed., 1936). [hereinafter The
Territorial Papers]. For general discussion of presidential deference
to Congress during the early period of American history, see Francis D. Wormuth & Edwin
B. Firmage, To
Chain the Dog of War 77-87 (1986).
. The Territorial Papers, supra note 205, at 220.
. A Compilation of the Messages and Papers of
the Presidents 126 (J.D. Richardson, ed., (1911) [hereinafter Richardson,
Compilation]. Congress took no action against the Chickamaugas.
. 33 Writings of Washington 73, quoted in
Louis Fisher, Presidential War Power
15 (1995). For general discussion of Washington's position with respect to
hostilities with Native Americans, see id. at 13-16.
. Territorial Papers, supra note
205, at 389. Knox's specific comments on the repository of the war power are
more reflective of his understanding than the inferences drawn by Professor
Powell from the Little Sarah episode.
. 10 The Works of Alexander Hamilton 281-82 (H. C. Lodge ed.,
1904).
. Richardson, Compilation, supra note
207, at 326-27.
. Letters of Lucius Crassus, No. 1, quoted in 8 The
Works of Alexander Hamilton
249-50 (emphasis in original).
. 2 Stat. 129, 7th
Cong., 1st sess., ch. 4 (1802).
. Richardson, Compilation, supra note 207, at 326-27, 389-90.
. 6 Madison Writings 174, 184 (emphasis in
original).
. Arthur
Schlesinger, Jr., Forword to The
Constitution and the Conduct of American Foreign Policy, at ix (David
Gray Adler & Larry N. George eds., 1996).
. Professor David
Mervin, who on policy grounds prefers an overriding executive authority in
foreign affairs and war-making, conceded that my reading of the Framers'
intentions is "broadly correct," that my analysis of the war clause is, in some
respects, "incontrovertible," and that my position reflects "academic
orthodoxy." David Mervin, Demise of the Work Clause, quoted in 30
Presidential Stud. Q. 4, at
770-76 (2000).
. I have elsewhere
briefly discussed the war power from a policy perspective. See David
Gray Adler, The Virtues of the War Clause, 30 Presidential Stud. Q. 4, at 777-82 (2000). That essay
represented a response to a critique of some of my work in conjunction with
David Mervin's essay, Demise of the War Clause.
