*Associate Professor of Law, University of St. Thomas School of Law; formerly Special Counsel, Office of Legal Counsel, U.S. Department of Justice; Deputy General Counsel, Office of Homeland Security.  The views expressed in this Article are purely my own.  I am most grateful to Professors Jefferson Powell, John McGinnis, and Antonio Perez for their comments on drafts of this Article.

 [1].   Hannah Arendt, On Revolution 152 (1963).

 [2].   See, e.g., H. Jefferson Powell, The President's Authority Over Foreign Affairs: An Essay in Constitutional Interpretation 26-27 (2002).

 [3].   For example, the debate at the Philadelphia Convention on August 17, 1787 resulted in changing the draft submitted by the Committee on Detail so that Congress was given the power to "declare" rather than to "make" war.  Countless scholars have scrutinized the debate carefully, but its import remains ambiguous.  As one excellent scholar concluded, "The 'ifs' must remain, for the record is unclear.  The only certainty which emerges from the debate is that the wording was changed."  Charles A. Lofgren, Government from Reflection and Choice, in Constitutional Essays on War, Foreign Relations, and Federalism 9 (1986).

 [4].   Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting).

 [5].   Printz v. United States, 521 U.S. 898 (1997).  Justice Scalia rested his argument there on "the structure of the Constitution" or its "'essential postulates'" from which he sought to derive "a principle that controls" the disposition of the case.  Id. at 918. 

 [6].   Bowsher v. Synar, 478 U.S. 714, 726 (1986).

 [7].   18 Op. Off. Legal Counsel 34 (1994), reprinted in H. Jefferson Powell, The Constitution and the Attorneys General 572 (1999).  Assistant Attorney General Walter Dellinger, who signed the opinion, defended it in Walter Dellinger, After the Cold War: Presidential Power and the Use of Military Force, 50 U. Miami L. Rev. 107 (1995).  A disclaimer: both Professor Powell and I helped to draft the 1994 opinion.

 [8].   See Deployment of United States Armed Forces into Haiti, 18 Op. Off. Legal Counsel 34 (1994), reprinted in H. Jefferson Powell, The Constitution and the Attorneys General 572 (1999).

 [9].   Id.

   [10].   For analytical purposes, it may be useful to identify four distinct positions along the spectrum of current scholarly opinion about the war powers. 

  [11].   In developing this "structuralist" argument, I do not propose to explore in detail the debates at the Philadelphia Convention or the State ratifying conventions.  However, I submit that they too yield important evidence for the view I am taking.  For example, in his important--but oddly neglected--remarks to the Virginia Ratifying Convention on June 14, 1788, James Madison responded to Patrick Henry's argument that the British Constitution was superior to the one proposed by the Federalists in part because it separated the power of the sword from the power of the purse.  See John C. Yoo, War and the Constitutional Text, 69 Chi. L. Rev. 1639, 1659 (2002).  That separation, coupled with the long-term dynastic interests of the royal family, made the British system less prone to executive war-making than the scheme proposed for the United States.  Madison replied to Henry by enumerating the checks on executive war-making that the proposed federalist system put in the hands of Congress, without once mentioning the Declare War Clause.  He said:

The sword is in the hands of the British king.  The purse is in the hands of the Parliament.  It is so in America, as far as any analogy can exist.  Would the honorable member say that the sword ought to be put in the hands of the representatives of the people, or in other hands independent of the government altogether?  If he says so, it will violate the meaning of that maxim.  This would be novelty unprecedented.  The purse is in the hands of the representatives of the people.  They have the appropriation of all moneys.  They have the direction and regulation of land and naval forces.  They are to provide for calling forth the militia; and the President is to have the command, and, in conjunction with the Senate, to appoint the officers.

John Yoo rightly underscores the importance of this passage for understanding the original conception of the President's war powers.  See id.

   [12].   The Spending Clause is, of course, also relevant, as Professor Powell (for one) has rightly and strenuously insisted.  See Powell, supra note 2, at 110 ("Congress's power over spending is the source of the legislature's ultimate power to counterbalance the executive branch and therefore to deter the possibility of executive waywardness or tyranny.").  However, the Army and Navy Clauses in themselves subsume the spending power.  For some general observations on the Spending Clause and war powers, see Louis Fisher, The Spending Power, in The Constitution and the Conduct of American Foreign Policy 227-29 (David Gray Adler and Larry N. George eds., 1996).

   [13].   An excellent overview of the diplomatic objectives and strategic liabilities of the United States in the years immediately preceding the Constitution may be found in David C. Hendrickson, Peace Pact: The Lost World of the American Founding 201-03 (2003).

   [14].   One commentator noted:

At its birth, the United States was a large, rich nation with great military potential, but also, with its long coastline, seaborne commerce, vast frontier, and hostile European-held territory nearby, a nation immensely vulnerable to surprise attack and invasion.  Poised to the north, in control of the Great Lakes and the most important forts in the Northwest, with access to the Lake Champlain–Hudson River corridor, lay the British.  To the west lay the Spanish.  Both possessed great influence on Indian tribes which held the key to the fur trade, frontier security, and the new nation's ability to occupy over half of its newly-won territory. 

Richard H. Kohn, Eagle and Sword: The Beginnings of the Military Establishment in America, 1783-1802, at 288 (1975).

   [15].   Indeed, James Madison acknowledged at the Philadelphia Convention that "we owe perhaps our liberty" to rivalries in the European State system.  The Records of the Federal Convention of 1787, at 448 (Max Farrand ed., 1911) (remarks of James Madison on June 28, 1787).

   [16].   See Morris J. MacGregor, The Formative Years, 1783-1812, reprinted from Office of the Chief of Military History, United States Army, American Military History, Army Historical Series, available at http:www.army.mil/cmh-pg/books/AHM/AHM-05 (last visited Feb. 2, 2003).

   [17].   Even in these exceptional cases, republican government was either precarious or attenuated.  In The Federalist No. 39, Madison questioned whether Holland, Venice or Poland truly merited "the honorable title of republic."  The Federalist No. 39 (James Madison).

   [18].   Spain's support of the Americans during the Revolutionary War was motivated by considerations of power politics alone, not by any sympathy for the colonial rebels.  Even while France maintained an accredited diplomatic representative to the United States, Spain sent only an "observer" without diplomatic functions, in order to avoid the appearance of recognizing American independence.  See Samuel Flagg Bemis, The Diplomacy of the American Revolution 88-89 (1935).  The United States was "feared by the Spanish King and Ministry for its potentialities of aggressive expansion, contemned for its unholy spirit of insurrection, [and] regarded only as a cat's-paw in the great game against Great Britain."  Id. at 101.

   [19].   Montesquieu described Britain as "a nation [that maybe justly called a] republic, disguised under the form of monarchy."  Charles de Secondat, Baron de Montesquieu, The Spirit of the Laws vol. I, ch. 19, at 74 (Anne M. Cohler et al. trans., 1989).  Indeed, Montesquieu did not merely discern the "republican" substance veiled by Britain's "monarchical" form; he penetrated further into the historically unprecedented nature of the British constitution, and recognized that the conceptual repertoire that pre-modern thought had developed for classifying and analyzing political forms was not truly applicable to Britain.  Thus, in his view, it was misleading to characterize Britain as either a "monarchy" or a "republic," because its constitution represented something novel and distinctively modern.  See Pierre Manent, The City of Man 11-17 (Marc A. Le Pain trans., 1998).

   [20].   In 1789, about 75% of the products Americans exported was going to British ports and about 90% of the goods they imported were coming from Britain.  So, economically, the United States was "deeply involved with, even dependent on, Britain." Alexander DeConde, Decisions for Peace: The Federalist Era 24 (1970).  More generally, it was the aim of "all Europe" to see the Americans "as unimportant Consumers of her Manufactures & Productions, and as useful Laborurers to furnish her with raw Materials."  Hendrickson, supra note 13, at 204 (quoting letter to Congress from American peace commissioners, September 10, 1783).

   [21].   See generally Drew R. McCoy, The Elusive Republic: Political Economy in Jeffersonian America ch. 6 (1980); Joyce Appleby, Capitalism and a New Social Order:  The Republican Vision of the 1790s (1984).

   [22].   See, e.g., Charles R. Ritcheson, Aftermath of Revolution:  British Policy Towards the United States 1783-1795, at 49-87 (1969); Andrew C. McLaughlin, The Confederation and the Constitution 1783-1789, at 77-8 (pb. ed. 1962).

   [23].   One of the major war aims of the American Revolution, in addition to attaining independence, "was to conquer or absorb all of the British Empire's holdings in North American, meaning [primarily] Canada."  Richard W. Van Alstyne, The Rising American Empire 29 (1960).  The Revolutionaries had mounted an invasion of Canada on two fronts in 1775 to 1776, capturing Montreal but failing to take Quebec; after these reversals, the Continental Congress attempted to detach Canada from the British Empire by diplomatic rather than military means, sending a delegation led by Benjamin Franklin in 1776.  There was "no disagreement among the American leaders on the importance of taking and keeping Canada.  John Adams declared that opinion was unanimous on the subject." Id. at 39.  Congress continued to plan for the invasion of Canada in 1778 and 1779.  See id. at 54-55.  These hopes did not dim with the end of hostilities.  The American representatives at the peace conference, led by Benjamin Franklin, unsuccessfully sought the cession of Canada and Nova Scotia by the British.  See  George M. Wrong, Canada and the American Revolution:  The Disruption of the First British Empire 353-54; 356-7; 364-65 (1968 reprint of 1935 ed.).  The Articles of Confederation had included a provision specifically authorizing the admission of Canada to the Union on favorable terms.  Articles of Confederation art. xi.  The project of annexing Canada was a longstanding ambition--indeed, a "hobbyhorse"--of Benjamin Franklin.  See Gerald Stourzh, Benjamin Franklin and American Foreign Policy, 142-44, 208-11 (1954); see also Van Alstyne, supra, at 20-1, 26-7.

   [24].   See Samuel Flagg Bemis, John Quincy Adams and the Foundations of American Foreign Policy 571 (1949).

   [25].   The Federalist No. 24 (Alexander Hamilton).

   [26].   Further, in The Federalist No. 11, Hamilton alludes to British and Spanish uneasiness at the prospect of American expansionism.

   [27].   In his famous speech of June 19, 1787 to the Philadelphia Convention (as recorded in Robert Yates's notes), Hamilton reviewed for the other Framers "the variety of important subjects that must necessarily engage the attention of a national government.  You have to protect your rights against Canada on the north, Spain on the south, and your western frontiers against the savages [sic]."  Notes of the Secret Debates of the Federal Convention of 1787, Taken by the Late Hon. Robert Yates, Chief Justice of the State of New York, and One of the Delegates from That State to the Said Convention, reprinted in, The Makings of the American Republic: The Great Documents 1774-1789, at 779 (Charles Callan Tansill ed.).

   [28].   See, e.g., Merrill Jensen, The Articles of Confederation:  An Interpretation Of The Social-Constitutional History Of The American Revolution 1774-1781, at 218-24 (1940); McLaughlin, supra note 22, at 70-77.  Patrick Henry had said that he "would rather part with the confederation than relinquish the navigation of the Mississippi."

   [29].   See, e.g., The Federalist No. 4 (John Jay), Nos. 6, 11 (Alexander Hamilton), No. 46 (James Madison).

   [30].   Hendrickson, supra note 13, at 259; see also id. at 7, 8-10, 238-40.

   [31].   Hamilton notes that modern times had "produced an entire revolution in the system of war."  The Federalist No. 8.  See generally Geoffrey Parker, The Military Revolution (2d ed. 1996); William H. McNeill, The Pursuit of Power chs. 4-5 (1982).

   [32].   U.S. Const. art. I, § 8, cl. 12.

   [33].   Id.

   [34].   As one scholar has perceptively noted, the Constitution's scheme for allocating war powers "put it in the hands of the people, through their representatives [in the House], to judge whether wars were defensive or ambitious, just or unjust, essential to the public good or an inexcusable waste of life and a drain on the public revenue."  Karl-Friedrich Walling, Republican Empire:  Alexander Hamilton on War and Free Government, 119 (1999).

   [35].   See generally Lois G. Schwoerer, "No Standing Armies!"  The Antiarmy Ideology in Seventeenth Century England (1974).  As late as 1778, well-informed Englishmen believed that the King intended to turn the armies he had deployed against the American Revolutionaries against his subjects in Britain itself and suspected that he intended to use the reconquered colonies as an independent source of revenue for the Crown, free from Parliamentary control.  See Eric Robson, The American Revolution in its Political and Military Aspects, 1763-1783, at 16-17 (1972).

   [36].   An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown (1689), available at http:/www.yale.edu/lawweb/Avalon/England (visited Feb. 4, 2003) ("That the raising or keeping of a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law").

   [37].   Schwoerer, supra note 35, at 151.  In fact, it had been an ancient prerogative of the crown that the King could "keep as many soldiers as he want[ed] so long as he pa[id] for them."  Id. at 76.  Charles II had exercised this prerogative by maintaining a force of Royal Guards at his own expense.  Id. James II had declared that he would fund his own standing army from the permanent funds available to him.  Id. at 145; see also Sir William Blackstone, Commentaries on the Laws of England bk. I, ch. 13, at 401 (1765).  Thus, by denying the President the power to "raise and support" armies without Congressional consent, the Constitution seems to provide that the President may not use sources other than congressional appropriations--including funds provided by state, foreign, or private sources--for an army.

   [38].   "No principle of government was more widely understood or more completely accepted by the generation of Americans that established the United States than the danger of a standing army in peacetime."  Kohn, supra note 14, at 2.

Because of their political heritage, because they viewed a standing army as the one uncontrollable institution in society, because they believed that it must inevitably undermine civilian authority, debauch the virtue of a population, and become the tool by which a tyrant would rise and hold power, Americans defined militarism and the standing army as one and the same.  The existence of such a force inevitably destroyed liberty, producing a military dictatorship and leading to the imposition of military values and practices on society.

Id. at  282.

   [39].   Schwoerer, supra note 35, at 196.

   [40].   Id. at 5-6.

   [41].   Likewise, the Declaration and Resolves of the First Continental Congress (Oct. 14, 1774), available at http://www.restoringamerica.org/documents/declarationsresolves.html, resolved that "the keeping a standing army in these colonies, in times of peace, without the consent of the legislature of that colony, in which such army is kept, is against law." 

   [42].   The Federalist No. 8 (Alexander Hamilton).  Likewise, Madison in The Federalist No. 14 refers to "those military establishments which have subverted the liberties of the Old World."  However, in The Federalist No. 46, Madison, while conceding that a peacetime standing army has "inconveniences" even if maintained on "the smallest scale" and that it may be "fatal" in its consequences if maintained on "an extensive scale," nonetheless argues that a "wise nation" will not "rashly preclude itself from any resource which may become essential to its safety."  The Federalist No. 46 (James Madison).

   [43].   In addition to the three factors identified in the text, the argument against standing armies also drew support from the claim that a militia composed of an armed citizenry was always to be preferred to a professional military establishment on land.  The case for the militia drew on a rich complex of ideas involving certain conceptions of personal and political freedom, republican virtue, the proper balance of estates in a well-ordered polity, and the supposed superiority of the fighting capabilities of citizen forces as against hired (and often foreign) troops.  These ideas traced back to Machiavelli and, in the English tradition, Harrington and Sydney, and were very familiar to the Founders. See, e.g., J.G.A. Pocock, Politics, Language & Time:  Essays in Political Thought and History 104-47 (1971).  It is not my intention to explore that complex of ideas here.

   [44].   Blackstone's view of the matter was the prevalent one. 

In a land of liberty it is extremely dangerous to make a distinct order of the profession of arms. . . .  [I]n free states the profession of a soldier . . . is justly an object of jealousy. . . . The laws therefore and constitution of these kingdoms knows no such state as that of a perpetual standing soldier, bred up to no other profession than that of war. . . . [Armies] are to be looked upon only as temporary excrescences bred out of the distemper of the state, and not as any part of the permanent and perpetual laws of the kingdom. 

Blackstone, supra note 37, bk. I, ch. 12 at 395, 400.  Professional standing armies were associated with illiberal rulers such as (in England) the Stuart dynasts and Oliver Cromwell or (on the Continent) Louis XIV (whose "standing army was initially desigend to assure the king's superiority over any and every challenge to his authority within France." McNeil, supra note 31, at 125).  The Anti-federalist writer "Brutus" claimed that "[i]n despotic governments, as well as in all the monarchies of Europe, standing armies are kept up to execute the commands of the prince or the magistrate, and are employed for this purpose when occasion requires: But they have always proved the destruction of liberty, and [are] abhorrent to the spirit of a free republic."  Essays of Brutus, in The Anti-Federalist: Writings by the Opponents of the Constitution 115 (Herbert J. Storing ed., 1985) (alteration in original).  In 1776, Adam Smith could report as settled opinion (with which he disagreed) that "[m]en of republican principles have been jealous of a standing army as dangerous to liberty."  Adam Smith, The Wealth of Nations V, at 295 (Andrew Skinner ed., 1999).  As if to illustrate Smith's description of the "republican" consensus, Jean Jacques Rousseau had written four years earlier that standing armies, "the plague and depopulators of Europe, are good for two purposes only, to attack and conquer neighbours, or to bind and enslave citizens."  Considerations on the Government of Poland, in Jean Jacques Rousseau, Political Writings 237 (Frederick Watkins ed., 1986) (1772).

   [45].   Although the United States is of course not an "island" in a geographical sense, it is so in a geopolitical one.  See Peter Padfield, Maritime Supremacy and the Opening of the Western Mind (1999); Nathan Miller, The U.S. Navy: a History 9 (3d ed. 1997).  Conversely, other geographical "islands"--Ireland, Madagascar, and Cuba--are, unlike Britain, not geopolitical ones.  See Carl Schmitt, Land and Sea 49 (Simona Draghici trans., 1997).  The Founders understood very clearly that the United  States' geopolitical "situation bears [a] likeness to the insular advantage of Great Britain."  The Federalist No. 41 (James Madison).  William Henry Drayton, the Chief Justice of South Carolina, asked, "Is not the situation of the United States insular with respect to the power of the old world:  the quarter from which alone we are to apprehend danger?"  Van Alstyne, supra note 23, at 41 (quoting Drayton).

   [46].   "The numerous wars of Louis XIV were costly, largely unsuccessful, and often foolhardy.  It is wry commentary on Louis' ambitions that, after a century of bitter, continuous warfare, Spain and the Dutch Republic settled their differences and allied against France during the War of the Spanish Succession.  Paths of glory led but to a diplomatic legacy for France of having almost all the European powers aligned against it."  Brian M. Downing, The Military Revolution and Political Change:  Origins of Democracy and Autocracy in Early Modern Europe 132 (1992).  Louis was even reduced to selling his personal set of 5,000 silver toy soldiers to pay for his wars.  See Martin Van Creveld, The Rise and Decline of the State 154 (1999).  The wars of Louis' successors left France even weaker fiscally.  See Downing supra.

  The French case was not exceptional.  "Most European armies were direct adjuncts of royal power.  They were paid for and led by monarchs.  Trans-national in composition, these troops were less the armies of nations than the forces of states whose diplomatic and military objectives were defined by the dynastic and territorial interests of their rulers.  Most British visitors to Frederick the Great's Prussia were struck by the remarkable degree of personal control that the king exercised over his army and administration."  John Brewer, The Sinews of Power:  War, Money and the English State, 1688-1783, at 43 (1989).  Moreover, the costs of land wars in Europe had been ruinous.  Id. at 40-41; see also Neal Ferguson, The Cash Nexus:  Money and Power in the Modern World, 1700-2000, at 398 (2001) (setting out evidence that profits from wars of early modern period were typically outweighed by costs of securing and collecting them).

   [47].   Douglass Adair, Fame and the Founding Fathers, 3-36 (1974); see also William Michael Treanor, Fame, The Founding Fathers, and The Power to Declare War, 82 Cornell L. Rev. 695, 729-40 (1997).  Moreover, royal caprice as well as desire for fame was understood to be a leading cause of war.  "A favorite story of the eighteenth century illustrating the arbitrariness which dominated foreign policy was the story of the palace window:  Louvois, fearing disgrace because Louis XIV had expressed displeasure with Louvois' arrangements concerning the construction of the windows of the Trianon, instigated the king to renew the war against the Habsburgs in order to divert his attention from architectural matters."  Felix Gilbert, To the Farewell Address:  Ideas of Early American Foreign Policy 62 (1961). 

   [48].   For example, in The Federalist No. 6, Hamilton attributed many wars to "the attachments, enmities, interests, hopes, and fears of leading individuals in the[ir] communities," who "have not scrupled to sacrifice the national tranquility to personal advantage or personal gratification."  The Federalist No. 6 (Alexander Hamilton). He cited as examples Pericles and Cardinal Wolsey.  Id.

     Ever willing to question the conventional wisdom, however, Hamilton emphasized that wars of this kind were often caused by popular leaders (Pericles of course being one) as well as by kings or royal favorites (like Wolsey).  He also distinguished a second kind of war, caused by "the rivalships and competitions of commerce between commercial nations."  Additionally, he ridiculed the notion that "[c]ommercial republics, like ours, will never be disposed to waste themselves in ruinous contentions with each other," asking whether "republics in practice [have] been less addicted to war than monarchies?"  The answer, he argued, was clearly that they were not less addicted:  even Britain's wars "have, in numerous instances, proceeded from the people."  See generally Gerald Stourzh, Alexander Hamilton and the Idea of Republican Government 148-52 (1970) (analyzing Hamilton's views on the causes of wars).

   [49].   The Federalist No. 4 (John Jay).  Jay went on to point out, however, that there were other "inducements to war" that "affect nations as often as kings."  Id.  Wars, in other words, were often popular rather than royal.

   [50].   Thomas Jefferson, who was to describe Napoleon as "the first and chiefest apostle of the desolation of men and mortals," also found his career to be a "lesson against the danger of standing armies."  13 The Writings of Thomas Jefferson 358 (Andrew A. Lipscomb ed., 1903); 10 id. at 154.

   [51].   The Federalist Nos. 24, 25 (Alexander Hamilton).  Alexander Hamilton's advocacy of standing armies stemmed from more than a belief in their military necessity.  His experience in the Revolutionary Army had probably shown him that a Federal or Continental Army could be a power instrument for creating a distinctly American national identity, by bringing together men from the different regions and states.  See Walling, supra note 34, at 236.

   [52].   Id.

   [53].   James Wilson's Speech at a Public Meeting (October 6 1787), reprinted in, The Debate on the Constitution: Part One 63, 65-66 (Bernard Bailyn ed.) [hereinafter Bailyn].

   [54].   John Jay, An Address to the People, reprinted in 1 The Founders' Constitution ch. 7, document 22 (Philip B. Kurland and Ralph Lerner eds., 1987).

   [55].   Kohn, supra note 14, at 283 (quoting Morris).

   [56].   Id. at 77.

   [57].   Id. at 77-78; see also id. at 297-98.  Madison, joined by Hamilton, also noted in The Federalist No. 19 that the "deplorable" military situation of the Holy Roman Empire owed much to the fact that it maintained only a "small body of national troops," and even those forces were "defectively kept up, badly paid, infected with local prejudices, and supported by irregular and disproportionate contributions to the treasury."  In The Federalist No. 41, Madison, following the lead of the Scottish historian William Robertson, traced the emergence of the standing army from its introduction by Charles VII of France and concluded that the logic of deterrence compelled France's rivals to establish similar forces:  "Had [Charles VII's] example not been followed by other nations, all Europe must long ago have worn the chains of a universal monarch.  Were every nation except France now to disband its peace establishment, the same event might follow."  Indeed Madison (like Jay) argued that the failure of the American states and regions would inevitably trigger an arms race in North America that would "set the example in the new as Charles VII did in the old world . . . . [T]he face of America will be but a copy of that of the continent of Europe.  It will present liberty everywhere crushed between standing armies and perpetual taxes."  Id.  See generally Hendrickson, supra note 13, at 41-42.

   [58].   Adam Smith, The Wealth of Nations bk. 5, ch. 1, pt. 1 (1776).

   [59].   In the British practice at the time of the Founding, Parliament voted an appropriation for the army each year.  See Blackstone, supra note 37, bk. I, ch. 13.

   [60].   The Federalist No. 26 (Alexander Hamilton) (emphasis in original).  Even as a young firebrand and pamphleteer before the Revolution, Hamilton recognized that under the British Constitution the King was "supreme protector of the empire," "the generalissimo, or first in military command; in him was vested the power of making war and peace, or raising armies, equipping fleets and directing all their motions."  Walling, supra note 34, at 40 (quoting Hamilton).

   [61].   The Federalist No. 26 (Alexander Hamilton).

   [62].   Id.

   [63].   See id.

   [64].   Id.

   [65].   In general, the evolution of Parliament might be viewed as the centuries-long development of a forum in which the tax-seeking rulers of England and their powerful, resources-rich subjects could negotiate and compromise over the terms and conditions under which the subjects would provide a share of their resources to those rulers for the purpose (very largely) of securing collective goods deriving from (successful) defense or conquest. 

The ruler can use this forum to make clear the terms and benefits of the contract; the members of parliament need not accept it until they are satisfied that they . . . will indeed benefit from its establishment.  Parliamentary procedures also tend to reveal both the ruler's and the constituents' preferences and to provide a location for continued and repeated interaction.  Moreover, rulers are accountable to parliaments.  If they have not kept past contracts, it will be difficult for them to make new ones.  If they have failed to enforce the contributions of some parties to the contract, this too will be known.  Finally, parliament helps rulers assert social pressure on constituents to keep their side of the bargain.

Margaret Levi, Of Rule and Revenue 118 (1988).  Although the acquisition of steady and substantial revenues would benefit the ruler, the very existence of a Parliament could magnify the subjects' strength--and their awareness of that strength.  That in turn could lead to the ruler's greater dependency on Parliament.  "As the costs of war grew, wise monarchs therefore chose their military ventures with an eye to the opinions of the taxpayers [as reflected in Parliament], the better to elicit support for their policies and to strengthen theri willingness to pay for them." Robert H. Bates, Prosperity and Violence, the Political Economy of Development 78 (2001).

   [66].   See id.

   [67].  For a somewhat different account of Hamilton's view of executive power, emphasizing his reliance on Locke rather than on Blackstone, see Walling, supra note 34, at 126, 144-47.  Walling argues that Hamilton incorporated the elements of Locke's federative power [which included the power to make war] that had not been specifically transferred to Congress into the executive power of the president. The federative power was traditionally associated with kings; therefore, Morton J. Frisch is clearly right to suggest that the 'great originality of the American regime' was Hamilton's 'incorporation of monarchical or executive power within the framework of traditional republicanism, a blend now referred to as presidential government.'"  Id. at 126.

   [68].   Blackstone, supra note 37, bk. I, ch. 7.

   [69].   Id., bk. I, ch. 7, at 325.

   [70].   See Yoo, supra note 11, at 1677-78.  The resemblances of the proposed Constitution to that of Britain, as well as the differences between them, were often noted in the debates over ratification.  Moreover, the British Constitution was often defended as an admirable model.  In the June 19, 1787 speech discussed above, Hamilton told the Philadelphia Convention that "the British government forms the best model the world ever produced, and such has been its progress in the minds of the many, that this truth gradually gains ground."  Federalist publicists made similar points in the ratification debates.  One such writer was Noah Webster, the author of a widely read and influential tract, "An Examination into the Leading Principles of the Federal Constitution" (Oct. 17, 1787).  Webster maintained that "the two best constitutions that ever existed in Europe [were] the Roman and the British."  Bailyn, supra note 53, at 129, 135.  See also Robson, supra note 35, at 221 ("[T]he eighteenth-century British constitution and its practice" was "preserved" by the American Constitution of 1787 "and its practice to this day . . . as if kept in a refrigerator.").

   [71].   U.S. Const. art. II, §1, cl. 1. W.W. Crosskey demonstrated this fifty years ago.  See William Winslow Crosskey, Politics and the Constitution in the History of the United States 415-28 (1953).  A very pointed example of the Founders' reliance on Blackstone's exposition of executive power came in the debate on June 18, 1788 at the Virginia Ratifying Convention over the Constitution's Treaty Clause, when James Madison, in citing Blackstone's Commentaries, referred to it as "a book which is in every man's hand."  10 The Documentary History of the Ratification of the Constitution: Virginia 1382 (John P. Kaminski & Gaspare J. Saladino et al. eds., 1993).  On the next day of that debate, George Nicholas actually quoted the text from Blackstone that Madison had in mind.  See id. at 1388-89. 

   [72].   See U.S. Const. art. I, §3.

   [73].   See Montesquieu, supra note 19.

   [74].   Id., part I, ch. 6, at http://www.uark.edu/depts/comminfo/cambridge/spirit.html (last visited 3/10/2003).

   [75].   Id. at 165.

   [76].   Id. at 156-57. 

   [77].   See generally Montesquieu, supra note 19, vol. I, bk. 11, ch. 6.

   [78].   Id. at 164.

   [79].   Id.

   [80].   See generally id.

   [81].   The Federalist No. 26 (Alexander Hamilton).

   [82].   Jean-Louis de Lolme, an eighteenth century Genevan artist and student of the British Constitution, reached similar conclusions on these matters and, like Montesquieu, significantly influenced the Founders.  De Lolme's The Constitution of England or an Account of the English Government was published in London in an English language edition in 1775.  The work was studied by the Founders, most of all by John Adams, who judged it "a more intelligible explanation" of the British Constitution than any written by an Englishman and "the best defense of the political balance of the three powers that was ever written."  Correa Moylan Walsh, The Political Science of John Adams: A Study in the Theory of Mixed Government and the Bicameral System 2333 (1915); see also Gordon S. Wood, The Creation of the American Republic, 1776-1787, at 575 (1969).  In the chapter of his book entitled "Of the Executive Power," de Lolme stated that in the British Constitution, the King "is, in right of his Crown, the Generalissimo of all sea or land forces whatever; he alone can levy troops, equip fleets, build fortresses, and fill all the posts in them."  Jean-Louis de Lolme, The Constitution of England or an Account of the English Government 69 (1792).  In addition, de Lolme stated, the King "is, with regard to foreign Nations, the representative and the depository of all the power and collective majesty of the Nation: he . . . has the prerogative of declaring war, and of making peace, on whatever conditions he thinks proper."  Id.  In the following chapter, "The Boundaries which the Constitution has set to the Royal Prerogative," de Lolme further remarked that the King "disposes, without controul, of the whole military power in the State."  Id. at 70 (emphasis added).  Yet at the same time, as Montesquieu had done, de Lolme emphasized the critical dependency of the Crown on parliamentary appropriations, even in military matters:

It is still from [Parliament's] liberality alone that the King can obtain subsidies; and in these days, when every thing is rated by pecuniary estimation, when gold is become the great moving spirit of affairs, it may be safely affirmed, that he who depends on the will of other men, is, whatever his power may be in other respects, in a state of real dependence. . . . The King of England, therefore, has the prerogative of commanding armies, and equipping fleets--without the concurrence of his Parliament he cannot maintain them. . . . He can declare war--but without his Parliament it is impossible for him to carry it on. . . . [T]he Royal Prerogative . . . is like a ship completely equipped, but from which Parliament can at pleasure draw off water, and leave it aground,--and also set it afloat again, by granting subsidies.

Id. at 70-71.  De Lolme also noted that as land forces "may become an immediate weapon in the hands of Power, for throwing down all the barriers of public liberty, the King cannot raise them without the consent of Parliament." Id. at 79.  He also pointed out that "this army is only established for one year; at the end of that term, it is (unless re-established) to be ipso facto disbanded."  Id. at 80.

   [83].   The requirement for biennial elections for the House of Representatives was of course designed to ensure that that body maintained "an immediate dependence on, and an intimate sympathy with, the people." The Federalist No. 52 (James Madison).

   [84].   To eighteenth century Americans, "[t]he power of the purse was . . . the determinant of sovereignty, and upon its location and extent depended the power of government, the existence of civil rights, and the integrity of representative institutions."  E. James Ferguson, The Power of the Purse: A History of American Public Finance, 1776-1790, at xiv-xv (1961).  It should not be surprising, therefore, that the Founders reposed so much confidence in this method of controlling warmaking. To the present day, Congress' powers with regard to appropriations "constitute a low-cost vehicle for effective legislative control over executive activity." Kate Stith, Congress' Power of the Purse, 97 Yale L.J. 1343, 1360 (1988).

   [85].   The Federalist No. 28 (Alexander Hamilton).

   [86].   Ames may have meant "formal," not "formed."

   [87].   Letter from Fisher Ames to Timothy Pickering (July 10, 1798), in Works of Fisher Ames 1288-89 (II W.B. Allen ed., 1983).  Ames noted that under the legislation the Federalists were considering, Congress

may authorize the burning, sinking, and destroying French ships and property gradatim, till no case is left which is to shelter them from hostility. . . .  I need not detail the consequences of this idea, as they will occur to you, nor discriminate the odds between a formal declaration of war, which would instantly draw after it all the consequences of a state of war, and a series of acts of Congress, which would annex to our state of peace all those consequences, one by one.

Id.

   [88].   See Act of April 28, 1798, 1 Stat. 558 (authorizing a provisional army "in the event of a declaration of war against the United States, or of actual invasion of their territory, by a foreign power, or of imminent danger of such invasion discovered in [the President's] opinion to exist" before the following session of Congress).

   [89].   See Stanley Elkins & Eric McKitrick, The Age of Federalism:  The Early American Republic, 1788-1800, at 596-99 (1993); Alexander DeConde, The Quasi-War:  The Politics and Diplomacy of the Undeclared War With France, 1797-1801, at 103-08 (1966); Kohn, supra note 14, at 221-29.

   [90].   Other early statutes gave the President the authority to call the militia into Federal service, but only for the specific purpose of the defense of the frontier against Indians.  See Act of Sept. 29, 1789, § 5, 1 Stat. 95, 96; Act of Apr. 30, 1790, § 16, 1 Stat. 119, 121.  Another early statute relating to the Army required the discharge of certain regiments after peace with the Indians had been achieved.  See Act of Mar. 5, 1791, § 3, 1 Stat. 241.  Further, the early Supreme Court upheld a particular legislative restriction on the deployment of a military arm (in that case, the Navy), in Little v. Barreme, 6 U.S. 170, 177 (1804).  To be sure, this does not mean--and the later unfolding of constitutional law does not suggest--that Congress may attach such restrictions or conditions as it pleases.  See generally The Sufficiency of the President's Certification Under the Mexican Debt Disclosure Act, reprinted in The Constitution and the Attorneys General 673, 688-96 (H. Jefferson Powell ed., 1999) (noting conditions on the exercise of presidential foreign affairs powers).  But practice both in the parliaments of the seventeenth and eighteenth centuries and in the Congress of the early Republic seems to support broad legislative power to attach conditions to funding for the military.

   [91].   British constitutional practice had long established that Parliament could insist upon conditions before agreeing to fund war measures.

Whenever the king needed money, as he always did in the seventeenth century, he had to bargain with his subjects.  He whose authority was recognized as absolute in the realm of war and peace had to ask Parliament for money to wage a war occasioned by his kingly guidance of foreign affairs; while the subject, possessing absolute control of his property, could either grant or refuse to grant money for the war, or, as parliament had long ago learned to do, grant it under certain conditions. . . .  By 1624 the parliamentary opposition had become so skilled in its bargaining tactics that Glanville asked in a debate on foreign affairs whether 'the King be taken to be so weak as that he cannot undertake a war with contracting with his subjects?'.

Margaret Atwood Judson, The Crisis of the Constitution:  An Essay In constitutional and Political Thought in England 1603-1645, at 72-3 (1964). In 1624, Parliament sought to force reversals of King James I's foreign policy towards Spain and the Elector Palatinate, conditioning funding "[u]pon your Majesty's public declaration of the utter dissolution and discharge of the two treaties of marriage and Palatinate, in pursuit of our advice therein."  See Christopher Hill, The Century of Revolution 1603-1714, at 48 (pb. ed. 1982) (citation omitted).  At the same time, Parliament also "took the novel constitutional step" of appropriating funds for specific purposes connected with a war against Spain (in defiance of royal policy).  J.R. Tanner, English Constitutional Conflicts of the Seventeenth Century 1603-1689, at 50 (1966 reprint of 1928 ed.).  In 1625, Parliament, opposing a land war with Spain, would only vote "a sum quite inadequate for serious war."  Id. at 54.  Sir Nathaniel Rich, in a speech to the House of Commons of August 6, 1625, claimed to trace Parliament's power to condition the grant of funds for war to the reign of Edward III.  See Samuel Rawson Gardiner, The Constitutional Documents of the Puritan Revolution 1625-1660, at 1-2 (1958 reprint of 3d (1906) ed.).  In 1677, the House of Commons used its control over appropriations to demand that King Charles II make an alliance with the Dutch against the French – a demand that the King resisted as an invasion of "the prerogative of making peace and war," causing him to adjourn Parliament.  Id. at 237.  Nonetheless, after reopening Parliament in 1678, the King reported on the making of a treaty with the Dutch and preparations for a war with France.  The House of Commons appropriated funds for a new army on condition that it be employed "for the preservation of the Spanish Netherlands; and lessening the power of France," and provided also that it remain on foot only "during an actual war on France."  John Childs, The Army of Charles II, at 225 (1976).

[W]hen, in 1678, Charles II suddenly levied 20,000 men, on the pretext of a war with France, the [House of C]ommons only consented to vote supplies on condition that these troops should be disbanded . . . . [S]o strong was the national prejudice under William III against a standing army, that in 1697, after the Peace of Ryswick, the [C]ommons insisted upon the dismissal of the king's Dutch guards, and on the reduction of troops to 7,000 . . . for the defence of England and 12,000 for the defence of Ireland. 

Thomas Pitt Taswell-Langmead, English Constitutional History From the Teutonic Period to the Present Time 751 (10th ed. 1946).  In general, as Madison remarked in The Federalist No. 58, the House of Commons' use of "the engine of a money bill" had for centuries ensured its "continual triumph . . . over the other branches of the government."

   [92].   Judge Abraham Sofaer has gathered and discussed cases from the early Republic in which it was argued that the bare Congressional provision of an army (or a navy) authorized presidential actions that would entail the risk of war. See Abraham Sofaer, The Power Over War, 50 U. Miami L. Rev. 3, 41-42 (1995).  Of particular interest, Judge Sofaer has reviewed and summarized the Congressional debates during the Quasi-War with France concerning the legal effects of authorizing a navy and Congress' power to restrict the President's deployment authority once a navy had been authorized.  See Abraham D. Sofaer, War, Foreign Affairs and Constitutional power:  The Origins 147-54 (1976).  He found that these debates "contain enlightening--though hardly definitive--material on the President's power as commander-in-chief and on Congress's power to control the conduct of war."  Id. at 165.

   [93].   U.S. Const. art. I, § 8, cl. 13.

   [94].   An "Act to provide an additional armament for the further protection of the trade of the United States; and for other purposes" went into law on April 27, 1798.  It authorized the President to procure and fit out no more than twelve armed vessels.  The bill "was passed in the house amid great excitement.  Edward Livingston, who closed the debate on the part of the opposition, said he considered 'the country now in a state of war; and let no man flatter himself that the vote which has been given is not a declaration of war.'" Fritz Grob, The Relativity of War and Peace: A Study in Law, History, and Politics 47 (1949).  Three days later, Congress enacted a statute establishing the Navy. See Act of Apr. 30, 1798, 1 Stat. 553, § 1.  This Act directed the Secretary of the Navy to execute "such orders as he shall receive from the President of the United States, relative to . . . employment of vessels of war."  The creation of an armed naval force thus in itself was understood to authorize its use by the President for making war.

   [95].   For an overview of the controversy, see Taswell-Langmead, supra note 91, at 428-36.

   [96].   See Gardiner, supra note 91, at  105-08  (specimen of the first writ of ship money).

   [97].   See Tanner, supra note 91, at 76-77.

   [98].   3 How. St. Tr. 988.

   [99].   1637, February 7. Rushworth, ii, 355. Gardiner, 108, 109  available at  http://www.originalsources.com/nxt/gateway.d11/lawcl/0107%20select%documents (last visited Feb. 12, 2003). This was considered an "extra-judicial" opinion and not an opinion at common law.  See  Taswell-Langmead, supra note 91, at 431.

[100].  See Kevin Sharpe, The Personal Rule of Charles I 719-30 (1990); Taswell-Langmead, supra note 91, at 432-35.

[101].   See Act Declaring the Illegality of Shipmoney, 1641, Aug. 7.  16                  &n bsp;          Charles I. c. 14, 5 S.R. 116.  Gardiner 189-92, available at http://www.originalsources.com/nxt/gateway.d11/lawcl/0107%20select%documents (last visited Feb. 12, 2003).

[102].   Interestingly, during the Revolutionary War, General George Washington had launched a fleet without authorization from the Continental Congress, on the basis of his authority as Commander in Chief.  See Miller, supra note 45, at 15.

[103].   In addition to the explanation given in the text, a significant naval force--including trained mariners--could not, as a practical matter, be assembled within a two year period.  "A navy is not to be formed on a sudden, nor are mariners to be obtained without extensive commerce and successful navigation."  Anonymous, Rudiments of Law and Government Deduced from the Law of Nature (1783), reprinted in I Charles S. Hyneman and Donald S. Lutz, American Political Writing during the Founding Era 1760-1805, at 601 (1983).

[104].   James Burgh, Political Disquisitions (1774).

[105].   Id.  "In the common English view, "the combination of the militia with . . . the royal navy" ordinarily sufficed to "prevent[] the foreign invasion of Britain's shores."  Brewer, supra note 46, at 33.  Americans often thought the same to be true of themselves:  in his Special Session Message to the Senate and House of May 16, 1797, President John Adams said that "[a] naval power, next to the militia, is the natural defense of the United States."  Id.

[106].   Blackstone, supra note 37.

[107].   De  Lolme, supra note 82, at 129.

[108].   At the beginning of the Revolutionary War, however, some British war planners believed, and some American leaders feared, that the British Navy would be able to subdue the rebellious colonies.

In the early months of the war, some British officials suggested that since the army would never be able to subjugate the colonies, the task of subduing the rebellion should be left to the navy, which could impose a blockade that would cost little in blood and treasure.  Just such a blockade was feared by the wiser of the American leaders, but the Royal Navy was too weak to impose it.  While an admiralty official calculated in July 1776 that a minimum of fifty ships would be needed on the American Station, Vice Admiral Samuel Graves, the commander in American waters, had but twenty-nine vessels to patrol some 1,800 miles of coastline--and many of them were all but unfit for service at sea.

Miller, supra note 45, at 14.  King George III himself had urged in early 1778 that "'[a] sea war was the only wise plan, to prevent the arrival of military stores, clothing, etc., to the rebels, which must distress them and make them come into what Britain may decently consent to.'"  Robson, supra note 35, at 183 (quoting King George III).

[109].   The Federalist No. 46 (James Madison).

[110].   Hendrickson, supra note 13, at 63 (quoting Jefferson).

[111].   Hyneman & Lutz, supra note 106, at 602.

[112].   Joseph Story, A Familiar Exposition of the Constitution ch. XX, § 191 (1986 ed.) (1859).

[113].   Otto Hintze, Military Organization and State Organization, in The Historical Essays of Otto Hintze 214 (Felix Gilbert ed., 1967).

[114].   See Padfield, supra note 45, at 173.

[115].   See generally Carl J. Richard, The Founders and the Classics:  Greece, Rome and the American Enlightenment (1994).

[116].   Thucydides has Pericles tell the Athenians that the navy is the basis of their power.  See Thucydides, The Peloponnesian War 2.62.  Ancient critics of Athenian democracy also noted the linkages between naval power, commerce, the empowerment of the demos, and the decline of the landed classes.  See Plato, The  Laws 704d-705a, 707a (A.E. Taylor trans., Dutton ed., 1960).

[117].   See Hintze, supra note 116, at 214.

Land forces have stood since the beginning in more or less intimate alliance with the propertied classes; they still carry something of a feudal tradition in them.  Sea power lacks all feudal vestiges.  To an eminent degree it serves the interests of trade and industry. . . .  Sea power is allied with progressive forces, whereas land forces are tied to conservative tendencies.

Id.; see also Padfield, supra note 45, at 3.

[118].   Brewer, supra note 46, at 168.  In England, from Charles II's reign onwards,

"blue water" strategy became official policy.  Commercial wealth and naval power were seen as mutually sustaining.  Flourishing trade fuelled the navy--providing funds in the form of customs revenues and manpower in the shape of able seamen, while an effective seaborne force was able not only to guard existing channels of trade but to open up new routes to commercial wealth.

Id.

[119].   David Hume, for instance, had argued that "commerce and industry . . . draw authority and consideration to that middling rank of men, who are the best and firmest basis of public liberty."  This "middling rank" consisted of "tradesmen and merchants."  Likewise, commerce was thought to inhibit the drive to war.  Montesquieu held that "the spirit of commerce has a tendency to soften the manners of men and to extinguish those inflammable humours which have so often kindled into wars."  See 3 Paul A. Rahe, Republics Ancient and Modern 100, 121-22 (1994) (providing quotations).  As noted above, however, Alexander Hamilton, in The Federalist No. 6, took distinctly the contrary view.  See also Ferguson, supra note 46, at 395-96 (criticizing the "great illusion" that "economic rationality" will prevent war).

[120].   U.S. Const. art. I, § 8, cls. 15-16.

[121].   That, at least, was part of the Federalists' case for ratification--even if many of their leading figures also doubted the wisdom of relying on the militia alone for homeland defense.  "Federalists contended [that] Congress would find large bodies of [regular] troops unnecessary.  The militia would bear the burden of overall security since the possibility of sudden invasion on a grand scale was precluded by America's distance from Europe."  Kohn, supra note 14, at 85.

[122].   See Houston v. Moore, 16 U.S. 433 (1820). 

[123].   The Federalist No. 26 (Alexander Hamilton); see also The Federalist Nos. 28, 51 (Alexander Hamilton).

[124].   Blackstone had written that the militia was not "in any compellable to march out of the kingdom."  Blackstone, supra note 37.

[125].   Authority of President to Send Militia Into a Foreign Country, 29 Op. Att'y Gen. 322, 323 (1912) (emphasis added); see also Perpich v. United States, 496 U.S. 334, 343 & n.13 (1990).

[126].   See Clarence A. Berdahl, War Powers of the Executive in the United States 133-34 (1921) (collecting authorities).  Berdahl concludes his review by finding that "the weight of authority is in support of the view that the militia cannot as such be sent out of the United States for the purposes of a foreign war." Id. at 134.

[127].   I recognize that my theory makes it incumbent on me to develop a positive account of the meaning of the Declare War Clause.  If that Clause does not function as a check on the President's authority to deploy the military forces available to him--even by initiating hostilities--then the question naturally arises, "What purpose does the Clause serve?"  Without attempting to answer that question here, I offer the following suggestions. 

     To begin with, a declaration of war could serve--as the Declaration of Independence did--as an announcement to the world at large of the United States' overall strategic aims in a war and of the causes that had led it to fight.  See Brien Hallett, The Lost Art of Declaring War (1998).  Further, like the Declaration of Independence, a declaration of war could have sweeping practical effects under public international law.  Justice Chase attributed these effects to the Declaration of Independence (indeed, he explicitly likened it to a declaration of war) in his opinion in Hylton v. Ware when he said that upon the issuance of the Declaration the Revolution became

a PUBLIC war between independent governments; and immediately thereupon ALL the rights of public war (and all the other rights of an independent nation) attached to the government of Virginia; . . . and not only the two nations, but all the subjects of each, were in a state of war; precisely as in the present war between Great Britain and France.

3 U.S. (3 Dall.) 199, 224 (1796).  Thus, the Declaration of Independence "enabled the colonists to secure recognition as belligerents from neutral countries, to demand for colonial prisoners of war the treatment accorded to regular forces, to obtain foreign alliances, to prosecute Loyalists legally if not justly, and seize their property."  Robson, supra note 35, at 74.  Indeed, according to the contemporary American historian of the Revolution, David Ramsey, the soldiers of the Continental Army received the Declaration with "particular satisfaction" because "[a]s far as it had validity, so far it secured them from suffering as rebels."  David Ramsey, The History of the American Revolution (1789), excerpted in Hyneman and Lutz, supra note 106, at 745.

     Similarly, a declaration of war would give the United States the status, rights, and liabilities of a belligerent under international law; would entitle it to claim that members of its forces captured by the enemy were to be treated as prisoners of war; and would entail changes in the rights of private persons--including enemy aliens and sojourning foreign merchants--under the domestic law of the United States (or at least authorize Congress or the President to effect such changes).  See, e.g., Brown v. United States, 12 U.S. (8 Cr.) 110 (1814).  Moreover, a declaration of war could affect the rights and liabilities of regular United States military personnel (or others acting under its authority) for acts of violence or seizures that they performed in the course of the war--for example, changing what might otherwise be unlawful private acts punishable as piracy into lawful public acts of seizing enemy ships and cargos. A declaration of war would also cancel or suspend treaties; suspend trading and other commercial relations between the belligerents and their nationals; suspend pre-war contracts between belligerents' nationals for the duration of the war, and void contracts made during wartime; and expand the domestic powers of the Government.  See, e.g., Taylor v. Morton, 23 F. Cas. 784, 786 (Case No. 13,799) (Cir. Ct. D. Mass. 1855) (Curtis, Circuit Justice) ("[The Constitution] gives to congress, in so many words, power to declare war, an act which, ipso jure, repeals all provisions of all existing treaties with the hostile nation, inconsistent with a state of war.  It is true this particular power to repeal laws found in treaties, is expressly given, and is applicable only to a case of war."); Jones v. Walker, 13 F. Cas. 1059, 1062 (Case No. 7,507) (Jay, Circuit Justice) (district and date not given) (stating that the power to determine whether treaty remains valid falls "to congress (it being necessarily incident to the right of making war)"); Yoram Dinstein, War, Aggression, and Self-Defense 18 (3d ed. 2001) (contrasting traditional views with recent trend towards denying that war terminates or even suspends treaties).  Such an understanding of the legal character, function and effects of a declaration of war is fully articulated in Justice Nelson's dissenting opinion in The Prize Cases, 67 U.S. 635, 686-88 (1862) (Nelson, J., dissenting); see also Note, Congress, The President, and The Power to Commit Forces to Combat, 81 Harv. L. Rev. 1771, 1772 (1968).  A declaration of war could serve any or all of these purposes without being constitutionally required as an antecedent to the Presidential deployment of armed forces into hostilities.

     A separate line of thought also reaches the conclusion that the Declaration of War Clause was primarily designed to enable Congress to affect the position of the United States at public international law, its armed forces and its nationals, rather than to disenable the President from deploying the armed forces without antecedent legislative authorization under that Clause.  Blackstone's discussion of the King's power to declare war---which he considered to be but one element of the Crown's "sole prerogative of making war and peace"--emphasizes that a declaration of war transforms what might otherwise be regarded as the acts of "unauthorized volunteers in violence" into the public acts of a lawful belligerent's armed forces, and more generally that it places each individual member of one belligerent's society at enmity with each individual member of the other belligerent's society.  Blackstone, supra note 37, bk. I, ch. 7, at 249.  Relying on the views of Grotius, Blackstone explains that the reason why "according to the law of nations a denunciation of war ought always to precede the actual commencement of hostilities" is that it may be made "certainly clear that the war is not undertaken by private persons, but by the will of the whole community; whose right of willing is in this case transferred to the supreme magistrate by the fundamental laws of society.  So that, in order to make a war completely effectual, it is necessary with us in England that it be publicly declared and duly proclaimed by the king's authority; and, then, all parts of both contending nations, from the highest to the lowest, are bound by it."  Id. at 250.

     In stating that a declaration is necessary "to make a war completely effectual," Blackstone is not saying that the Crown may not engage in war-making without a declaration, but rather that the quality of its subjects' acts in the course of war-making--that is, whether they are authorized public acts or unauthorized private acts of violence or depradation--would be unsettled and disputable in the absence of a declaration.  Insofar as Blackstone is concerned at all with the domestic constitutional issues presented by war-making--as distinct from those arising under international law--he says that the "check of parliamentary impeachment, for improper or inglorious conduct, in beginning [or] conducting . . . a national war, is in general sufficient to restrain the ministers of the crown from a wanton or injurious exertion of this great prerogative."  Id.  Analogously, the legislative check ex post on Presidential war-making would also be impeachment (as the check ex ante is Congress' control over the provision of the army and navy).  In sum, then, Blackstone's interpretation of the Crown's power to "declare" war is consistent with the view that that is a power to affect international juridical relationships.

     Finally, any plausible interpretation of the Declare War Clause must reckon with the fact that, as Hamilton put it, "the ceremony of a formal denunciation of war has of late fallen into disuse."  The Federalist No. 25.  If anything, Hamilton badly understated the case.  In Griswold v. Waddington, Chancellor Kent found:

A formal declaration of war is not held necessary by the usage of Europe; and war may begin by mutual hostilities as well as by a declaration . . . .  Since the peace of Versailles in 1763, formal declarations of war seem to have been disused in Europe, and all the necessary and legitimate consequences of war flow at once from a state of public hostilities, duly recognized and explicitly announced.  In the war of 1756, between England and France, war was not formally declared until May and June, 1756, though vigorous and active hostilities had been carried on, by sea and land, for a whole year preceding . . . . In the war which commenced between England and France, in 1778, the first public act on the part of the English government, was the withdrawing of its minister from France, and that single act was declared by France to be the first breach of the peace.

16 Johns. 438 (Sup. Ct. N.Y. 1819) (italics in original).  In other words, twice in the Founders' lifetimes--in the Seven Years War (known in this country as the French and Indian War) and again in the American War of Independence--hostilities had broken out between England and France, in matters concerning North America, without a declaration of war.  Further, Chancellor Kent observed that the Revolutionary War "had actualy commenced" on the Smerican side the year before "our independence was . . . declared [and] the war . . . then attained that solemn form recognized by public law between independent nations." Id.  The absence of a formal declaration during that period was not in the least unusual.  "Formal declarations of war became more and more rare from about 1700 . . . .  [I]n the period 1700-1870 hostilities were only in ten cases preceded by a formal declaration against more than [a] hundred without any or with one subsequent to the opening of hostilities."  9 J.H.W. Verzilj, International Law in Historical Perspective 62 (1978). The rarity of declarations of war in eighteenth century State practice--particularly Great Britain's--underscores that the power conferred by the Declare War Clause was a limited one.