My last post was more negative against the evidence used by those who believe President Obama must seek support in Congress before any strikes against Syria. Let me add more positive arguments in support of the idea that the president’s commander-in-chief and executive powers, granted in Article II of the Constitution, give him the authority to use force abroad. A broader, more sophisticated account of the history of the Framing of the Constitution undermines the simple claim, made by Representatives Amash and Nadler and Senator Paul, that the Framers would want Congress to have the power over war because they were anti-executive.
First, the Framers would have understood the Constitution’s distribution of war powers against the background of the British constitution, which had supplied many of the legal concepts present in the proposed document. Under the formal British system, as described by the widely read William Blackstone, the Crown exercised all of the war power, in which the declaration of war itself played the role of announcing to foreign enemies and domestic citizens a change in legal relations from peacetime to wartime. Nowhere was the power to declare war thought an important part of the process of the act of starting military hostilities.
Third, the political context of the American colonies and newly independent states also would have led to the understanding that the executive possessed the bulk of the war power. Reading the Constitution to maintain the executive’s commander-in-chief authorities bears more consistency with the general development of American constitutional thought from the Revolution through the Framing. Under the British imperial system, colonial governors had exercised unilateral control over the military under their command, subject to control by the assemblies over funding. State experiments in fragmenting the executive, and frustration with the limited powers of the Continental Congress led nationalist reformers to seek the restoration of authority in a unified presidency. Reading the Framers’ treatment of war powers as vesting the power over war in Congress would run counter to this broader design of the Constitution.
Fourth, details from the Framing debates themselves provide evidence that some of the Constitution’s supporters believed that it replicated the British system. When pressed during the Virginia ratifying convention, for example, with the charge that the president’s powers could lead to a military dictatorship, James Madison argued that Congress’s control over funding would provide enough check to control the executive.