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Proposals for airstrikes in Syria have brought out critics on both the left and right contending that the Constitution requires President Obama to seek support from Congress before going to war. But the better reading of the constitutional text, as I explained below, is that the Constitution gives the president some powers over war, and Congress others, and that the process to decide on war is political. Where then does the support come from for those, such as Jerrold Nadler, Justin Amash, or Rand Paul, who believe that Congress’s power to declare war means the legislature must pre-approve all hostilities? It really relies upon legislative intent, that there are indications of what the Framers believed the text meant.

Folks like Nadler, Amash, Paul and their academic supporters argue that the Framers had a substantive goal (reducing warmaking overall) and used a certain process (giving Congress control over making war) — to achieve it. The most prominent constitutional law scholar to hold this view, John Hart Ely, believed that if the president and Congress had to agree on war, then the United States would enter fewer wars and those conflicts would arise only after reason and deliberation: “The point was not to exclude the executive from the decision—if the president’s not on board we’re not going to have much of a war—but rather to ‘clog’ the road to combat by requiring the concurrence of a number of people of various points of view.”

Ely and his side rely on three pieces of evidence from the Framing to support this conclusion. First, during the federal constitutional convention James Madison moved, and the delegates agreed, to change Congress’s power from “make” to “declare” war, leaving to the president the power to repel sudden attacks. Second, James Wilson defended the Constitution in the Pennsylvania ratifying convention by declaring that “this system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress,” because the “important power of declaring war” is vested in Congress. Third, Joseph Story observed in his Commentaries that “the power of declaring war . . . is in its own nature and effects so critical and calamitous, that it requires the utmost deliberation, and the successive review of all the councils of the nation.”

As to the amendment of the draft of the Constitution, it is important to recognize that the journals of the federal convention were kept secret until Madison’s death in 1836. They could not have influenced the bodies that gave the Constitution its legal authority — the state ratifying conventions. All the ratifying conventions could go on was the fact that the draft Constitution gave Congress the power to declare war, where the Articles of Confederation had used a much broader phrase. But even if the secret proceedings at Philadelphia are to be given precedence, it seems clear that the debate on amending Congress’s war powers clause was confused — it took place late in the afternoon on a Friday in a hot, muggy Philadelphia summer — and its result was to narrow Congress’s power over war. Some argue that this should be understood as expressing an intent to recognize the president’s authority to repel sudden attacks, as one delegate said. But this would have been already understood even if the language had gone unamended. 

As for Wilson, it is again worthwhile to look at the larger context of his claim. Looking at the larger discussion, Wilson is discussing the power to make peace, rather than war. He is arguing that the Constitution has a built-in bias against war. Again, I think it depends on what “declare war” means. In my view, Wilson is talking about bringing the country into a state of full, total — or what the Framers called “perfect” — war. That would bring the greatest risk of calamity, and that is what is vested in Congress. But this does not directly address the question of all kinds of hostilities. I do admit that the Wilson quote is the best piece of evidence on the other side, though it is not as compelling to me as the evidence from the constitutional text and other bits of history.

Ely and others also rely on a variety of quotes, some from Jefferson (on how the Constitution’s vesting of power in Congress would tie up the “dogs of war”) and some from Madison, about how the Constitution intentionally gave Congress the power to start wars with the vesting of the Declare War power. The problem with these types of quotes is that they are anachronistic. Jefferson, for example, was not a Framer — he was in Paris at the time of the writing and ratification of the Constitution. Madison’s claim about Congress’s power to declare war was on point, but it came in 1793, in the midst of the Helvidius-Pacificus debates over the Neutrality Proclamation. It could not have expressed the understanding of the ratifiers because it came in the midst of a partisan fight over foreign policy after the Constitution’s ratification. Same goes for Story — he published his Commentaries on the Constitution decades after the ratification. Story was eight at the time of the Constitution — he was a prodigy, to be sure, but not that much of a prodigy.

 



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