Constitution Post — Article I, Section 8; Clause 11

Hey Everybody!

This week, we’re looking at the eleventh clause of Article I, Section 8 of the Constitution, commonly denominated the “Declare War Clause” or “Declaration of War Clause.”  One’s interpretation of this clause will have a significant effect on his/her view of current military events, such as the “war on terror.”  It reads:

“Congress shall have Power… To declare War…”

The Declaration of War Clause represents a very direct outworking of the purpose of the Constitution, as stated in its preamble — to “…provide for the common defence.” This power naturally fell to the federal government, since the states intended to act as a unified body in matters of “war, peace, negotiations, and foreign affairs.”  Under the Articles of Confederation, the several states united for similar purposes in a “firm league of friendship.”  Although the Constitution altered several aspects of the government of the Articles of Confederation, this description aptly describes the kind of union created under the Constitution.  Acting as one in these matters would necessitate unified military operation.

Interestingly, while the U.S. has been involved in numerous military conflicts, the U.S. has only declared war five times. Of those five declarations, four were signed defensively, in the wake of initiated hostilities, only one being an offensive declaration.  Other orders and resolutions have simply authorized the use of military force without explicitly declaring war.

It should be noted that the Declaration of War Clause does not require Congress to declare war before any U.S. military operation.  For example, if attacked, the U.S. may and must repel attack immediately, not waiting for an actual declaration of war.  Additionally, Joseph Story, in his Commentaries on the Constitution, outlined two different forms in which Congress may exercise its war-making power:

“The power to declare war may be exercised by congress, not only by authorizing general hostilities, in which case the general laws of war apply to our situation; or by partial hostilities, in which case the laws of war, so far as they actually apply to our situation, are to be observed.  The former course was resorted to in our war with Great Britain in 1812, in which congress enacted, ‘that war be, and hereby is declared to exist, between the United Kingdom of Great Britain and Ireland and the dependencies thereof, and the United States of America and their territories.’  The latter course was pursued in the qualified war of 1798 with France, which was regulated by divers acts of congress, and of course was confined to the limits prescribed by those acts.”

The phrase, “the qualified war of 1798 with France,” references the Quasi-War, which lasted from 1798 to 1800. The French, being unrelenting enemies of Great Britain, became embittered when the U.S. signed the Jay Treaty — a treaty which resolved many lingering tensions between the U.S. and Great Britain — in 1794 and began a series of attacks on U.S. shipping.  This lead to several diplomatic efforts and military conflicts known as the Quasi-War.  In this war, no formal declaration of war was made, a full-scale war never resulted, and all military action was initiated and governed by specific congressional acts, rather than a broad declaration of war.

To add a contemporary element to this discussion, the argument could be made, then, that our current military action in the Middle East is reminiscent of that of the Quasi-War; however, there are two significant distinguishing factors between these two conflicts: first, while the former was inaugurated by executive action, the latter was initiated and controlled by congressional action; and, second, whereas the former was a full-scale invasion, the latter only involved minor, local military operations. While I do not say that the war in the Middle East is unjustified, the fact that is the result of arbitrary, undeclared executive action is unjustifiable.

There is an ongoing debate as to whether or not the President has the constitutional latitude to declare war. Those who believe that Congress alone has the power to declare war assert that, since there is not a specific delegation of this power to the President in the Constitution, the President only has wartime military power, as established by Article II, Section 1. 

Opponents of this view cite the Founder’s obvious understanding of the long British practice of engaging in undeclared wars, positing that the Constitution, by its silence on the issue, allows for similar executive inauguration of hostilities; and view the declaration of war not as a diplomatic imperative, but an optional diplomatic utility.  In other words, opponents of this view argue that the President has the constitutional latitude to essentially inaugurate war without formally declaring it such.  John Yoo, a professor of law at the University of California – Berkley, Boalt Hall School of Law, states, 

“Under this view, Congress’s power to declare war was established for an altogether different purpose. Declarations of war alter legal relationships between subjects of warring nations and trigger certain rights, privileges, and protections under the laws of war. According to Grotius, declarations gave notice of the legal grounds for the war and the opportunity for enemy nations to make amends and thereby avoid the scourge of war.  It served notice on the enemy’s allies that they would be regarded as cobelligerents and their shipping subject to capture.  Under a declaration of war, one’s own navy and privateers could not be treated as pirates by the enemy, but on the other hand one’s own citizens were subject to prosecution if they dealt with the enemy.”

In my opinion, it seems more defendable to believe that only Congress holds the power to declare and inaugurate war.  After all, why would the Framers deal with such specificity on some issues, while leaving others to be deduced from obscurity?  The absence of an explicit delegation of power indicates that the power was not intended to be delegated to the executive in the first place. Additionally, the motion made on the floor of the Constitutional Convention to change the wording of the Declare War Clause from reading, “make war,” to, “declare war,” seems to have been made in direct opposition to allowing the executive to levy war, as is indicated by the following excerpt from James Madison’s Records of the Federal Convention:

“Mr. Madison and Mr Gerry moved to insert ‘declare,’ striking out ‘make’ war; leaving to the Executive the power to repel sudden attacks.”

Additionally, Madison said,

“A standing military force, with an overgrown Executive will not long be safe companions to liberty.”

The Framer’s idea was that Congress would inaugurate war, and the executive would only be responsible for handling military operations after the formal declaration of war, unless the U.S. was suddenly attacked.

Finally, it seems unlikely that the Framers, having recently endured a literal war for liberty with Great Britain, would have any desire to replicate the highly centralized, unilateral executive practices of King George.  A perusal of such works as James Madison’s aforementioned Records of the Federal Convention, Joseph Story’s Commentaries on the Constitution, and The Federalist — a joint work of James Madison, Alexander Hamilton, and John Jay — will show the reader the desire of the Framers to keep U.S. government distinctly decentralized.

Unfortunately, modern precedent demonstrates a much more executive and unofficial approach to the United States’ war-making power.  As I mentioned, of the numerous wars in which the U.S. has found herself, only five have been declared.  The Korean War was waged without any formal military authorization from Congress, and the current conflict in the Middle East is a result of the Authorization for Use of Military Force Against Terrorists (AUMF), an Act that neither declared war, nor specified the military operations to be launched; instead, it gave the President unchecked power to use whatever military means he thought necessary against whatever group he deemed guilty of planning, assisting, or executing the 9/11 attacks against the U.S. 

We need to right this dereliction of Constitutional mandate. We need to advocate the return of military authorization to congressional jurisdiction.  War may be necessary, but it should only be waged after constitutional mandate has been obeyed.

Well, I hope you’ve enjoyed reading this post as much as I enjoyed writing it!  Check out the articles under “Sources/References,” and keep studying these issues, so that you will be able to effectively fight for the liberty we enjoy!

Keep fighting!

Benjamin

Sources/References:

The U.S. Constitution:

https://constitutioncenter.org/interactive-constitution/articles/article-i

Heritage Foundation, *Constitution Essays*, “Declare War”:

http://www.heritage.org/constitution/#!/articles/1/essays/49/declare-war

Madison Quote:

https://www.goodreads.com/quotes/23893-the-powers-delegated-by-the-proposed-constitution-to-the-federal

Articles of Confederation excerpt:

https://www.gilderlehrman.org/history-by-era/war-for-independence/resources/articles-confederation-1777

Information on U.S. Wars:

https://fas.org/sgp/crs/natsec/RL31133.pdf

Information on the Quasi-War:

https://en.m.wikipedia.org/wiki/Quasi-War

https://history.state.gov/milestones/1784-1800/xyz

Joseph Story’s *Commentaries on the Constitution*:

http://press-pubs.uchicago.edu/founders/documents/a1_8_11s18.html

Information on the Jay Treaty:

https://en.m.wikipedia.org/wiki/Jay_Treaty

Madison’s *Records of the Federal Convention*:

http://press-pubs.uchicago.edu/founders/documents/a1_8_11s4.html

Another Madison Quote:

http://tenthamendmentcenter.com/2014/04/09/letters-of-marque-and-reprisal-an-introduction/

List of Declared and Undeclared U.S. Wars:

https://en.m.wikipedia.org/wiki/Declaration_of_war_by_the_United_States

Korean War Information:

https://en.m.wikipedia.org/wiki/Korean_War

https://en.m.wikipedia.org/wiki/United_Nations_Security_Council_Resolution_84

Information on the Middle-Eastern Conflict:

https://en.m.wikipedia.org/wiki/War_on_Terror

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