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The Power to Declare War — Who Speaks for the Constitution? Part 1

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When presidents lose domestic support, they invariably look overseas for crises to solve. President Clinton is no different. After the Republicans swept Congress, he immediately flew off to the Pacific for a series of meetings with foreign leaders. Aides predict that he will continue to pay greater attention to foreign policy, where he is able to operate with fewer restrictions from a hostile Congress.

But foreign policy means more than just international summits. It also means war, as is evident from the Clinton administration’s continuing attempt to push America, through the NATO alliance, into a larger role in the Balkans imbroglio. So far, President Bill Clinton has undertaken or considered military action in Bosnia, Haiti, Korea, and Somalia. At no point has he indicated a willingness to involve Congress in the decision-making process. To the contrary, in late 1993 he stated: “I would strenuously oppose attempts to encroach on the President’s foreign policy powers.”

In this way, at least, he is acting like many of his predecessors. Bill Clinton emphasizes that he is the commander-in-chief, and, he claims, “The Constitution leaves the President, for good and sufficient reasons, the ultimate decision-making authority.” As such, he argues, he is entitled to do whatever he pleases with the military: “The President must make the ultimate decision.”

In fact, such an attitude has been broadly held by chief executives around the world. A decade ago, then-Defense Secretary Caspar Weinberger observed of America’s great Cold War adversary:

Now who among the Soviets voted that they should invade Afghanistan? Maybe one, maybe five men in the Kremlin. Who has the ability to change that and bring them home? Maybe one, maybe five men in the Kremlin. Nobody else. And that is, I think, the height of immorality.

Yet, the president served by Secretary Weinberger, Ronald Reagan, made not the slightest pretense of consulting Congress before invading Grenada and overthrowing its government. George Bush attacked Panama and deposed its military dictator, Manuel Noriega, with merely a nod to Congress, and only reluctantly accepted a legislative vote before going to war against Iraq. And President Clinton ended up only a Carter-brokered agreement away from forcibly invading Haiti. (Of course, even congressional assent would not mean that these or other military actions would be morally or practically justifiable.)

Alas, this executive presumption goes back to Richard Nixon and Harry Truman, and, indeed, much further. It was also shared by the various potentates who once ruled Europe. Observed Abraham Lincoln, a “strong” president who faced perhaps America’s greatest crisis: “Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object.” He rejected the contention that presidents have expansive war-making powers independent of Congress: “This, our Convention, understood to be the most oppressive of all Kingly oppressions; and they naturally resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.” The opposing view, he concluded, “destroys the whole matter, and places our President where kings have always stood.”

It was for this reason that many early Americans opposed the proposed Constitution, fearing that it gave to the president powers too similar to those of Britain’s king. Not so, nationalist Alexander Hamilton reassured his countrymen. In fact, the president’s authority was:

. . . in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the land and naval forces . . . while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies; all of which by the Constitution would appertain of the legislature.

Perhaps part of the problem is that modern chief executives, who increasingly style themselves after their monarchical forebears, making war around the globe on their own initiative, do not understand which legislature Hamilton was referring to. Bill Clinton moved up by twenty-four hours his planned invasion of Haiti to forestall an adverse congressional vote, but did press for legislative blessing from the U.N. American diplomats successfully lobbied members of the Security Council: the enlightened nations of Nigeria, Oman, Pakistan, for instance, along with China, whose rulers’ commitment to democracy is well known; Djibouti, with a total population less than that of a single congressional district; and Rwanda, then still represented by a diplomat from the defeated Hutu regime. Thus, President Clinton was granted permission by a smattering of foreign autocrats to take the United States to war.

But the U.S. Constitution, to which the president swears allegiance, refers not to the U.N. but rather to the American Congress. Article 1, Sec. 8(11) states that “Congress shall have the power . . . to declare war.” As Alexander Hamilton indicated, the president is commander-in-chief, but he is to fulfill his responsibilities only within the framework established by the Constitution and subject to the control of Congress.

Of this, there simply is no doubt. Wrote James Madison in 1793, it is necessary to adhere to the “fundamental doctrine of the Constitution that the power to declare war is fully and exclusively vested in the legislature.” Modern supporters of the doctrine of president-as-Caesar make much of the fact that convention delegates changed Congress’ authority from “make” to “declare” war, but they did so, explained Madison, only to allow the president the authority to respond to a sudden attack. When Pierce Butler of South Carolina formally proposed giving the president the power to start war, Elbridge Gerry of Massachusetts said that he “never expected to hear in a republic a motion to empower the executive to declare war.” Butler’s motion was quickly rejected.

The reasoning of the conferees in opposing Butler’s measure was simple. Explained Virginia’s George Mason, the president “is not safely to be entrusted with” the power to decide on war. Mason therefore favored “clogging rather than facilitating war.” James Wilson, though an advocate of a strong presidency, approvingly observed that the new constitutional system “will not hurry us into war.” Instead, “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.” Similarly, Thomas Jefferson wrote: “We have already given . . . one effectual check to the dog of war by transferring the power of letting him loose.”

Even Hamilton agreed with his long-time adversary on this point, pointing out that the war powers of the president were “in substance much inferior to” that of the British king. And Hamilton supported this result even while backing strong executive power. As he wrote 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.

This fundamental concern of the Constitution’s framers — an unwillingness to trust “a single man . . . to involve us in such distress,” in Wilson’s words — has certainly been validated by American history. The manifold dishonest and secret machinations of this century’s presidents, especially the “strong” ones so highly rated by historians, prove how dangerous it is to trust chief executives with minor grants of authority, let alone the power to take the nation into war. If requiring a legislative vote is no guarantee that the public will be protected from unnecessary and bloody national crusades, it does at least force a debate and more easily allow voters to ultimately hold someone responsible for their decisions.

Against this abundant historical record there is no serious rebuttal. George Bush, for instance, stated that “I don’t think I need it” when asked if congressional approval was necessary before attacking Iraq. Why? “Many attorneys,” he said, had “so advised me.” He apparently did not bother to read the Constitution himself. Onetime law professor Bill Clinton offered no better justification. When it came to both Bosnia and Haiti in late 1993, Clinton said that he opposed “any attempts to encroach on” his prerogatives. He did, however, echo George Bush in saying that he would “encourage congressional authorization of any military involvement in Bosnia.” As for Haiti, he stated last August: “I would welcome the support of the Congress and I hope that I will have that. But like my predecessors in both parties, I have not agreed that I was constitutionally mandated to get it.” In short, the president desired a guaranteed affirmative vote. The Constitution, however, does not limit Congress to voting yes.

The fact that the Constitution gives Congress the final decision as to war and peace does not mean that there are no gray areas. But the existence of some unclear cases does not mean that there are no unambiguous instances where congressional approval is required, such as defending South Korea from North Korea, spending a decade warring in Indochina, invading Panama and Haiti, transporting a half-million soldiers to the Middle East to attack Iraq, conquering Haiti, and intervening on Bosnia’s side in the Balkans civil war.

What conceivable justification is there for ignoring the Constitution’s straightforward requirement in cases such as these? Advocates of expansive executive war power — oddly enough, including some conservatives who claim to believe in a jurisprudence of “original intent” — have come up with a number of reasons to give the president virtually unrestrained authority to act. One is that the president has some undefined “foreign affairs power” that apparently overrides the war powers provision. Yet, the Constitution carefully circumscribes the president’s authority in foreign affairs in a number of ways — the Senate must approve treaties and ambassadors, for instance. Both the House and Senate regulate commerce with other countries; establish the military; organize the militia; make decisions covering the use of these forces; and oversee the rules of war (by authorizing letters of marquis and reprisal, defining and punishing piracy, and so forth). All told, writes Jack Rakove, historian and director of the American Studies Program at Stanford University, the constitutional provisions “that laid the strongest foundation for a major executive role in foreign policy are more safely explained as a cautious reaction against the defects of exclusive senatorial control of foreign relations than as a bold attempt to convert the noble office of a republican presidency into a vigorous national leader in world affairs.”

Part 1 | Part 2 | Part 3

BOOKS BY DOUG BANDOW

Tripwire : Korea and U.S. Foreign Policy in a Changed World (1996)
Perpetuating Poverty : The World Bank, the Imf, and the Developing World (1994)
The Politics of Envy : Statism As Theology (1994)
The U.S.-South Korean Alliance : Time for a Change (1992)
The Politics of Plunder : Misgovernment in Washington (1990)
Beyond Good Intentions : A Biblical View of Politics (1988)

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    Doug Bandow is vice president of policy at Citizen Outreach, the Cobden Fellow in International Economics at the Institute for Policy Innovation, a senior fellow at the Cato Institute, and serves as adjunct scholar for The Future of Freedom Foundation. He is a former special assistant to President Reagan; he is also a graduate of Stanford Law School and a member of the California and D.C. bars. BOOKS BY DOUG BANDOW: Leviathan Unchained: Washington’s Bipartisan Big Government Consensus (forthcoming) Tripwire : Korea and U.S. Foreign Policy in a Changed World (1996) Perpetuating Poverty : The World Bank, the Imf, and the Developing World (1994) The Politics of Envy : Statism As Theology (1994) The U.S.-South Korean Alliance : Time for a Change (1992) The Politics of Plunder : Misgovernment in Washington (1990) Beyond Good Intentions : A Biblical View of Politics (1988)