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Presidential Wars’: An Exchange

In response to:

Presidential Wars from the September 26, 1991 issue

To the Editors:

In his “Presidential Wars” [NYR, September 26], Theodore Draper asserts that we make an “elementary mistake” in distinguishing between the powers to “make” and to “declare” war. He cites Madison’s Notes of Debates in the Federal Convention, which, he believes, explain why the Framers rephrased congressional authority from the power to “make war,” as it originally appeared, to the power to “declare war,” as was ultimately adopted. Madison’s note, of which we were well aware, reads in full: “Mr. Madison and Mr. Gerry moved to insert ‘declare,’ striking out ‘make’ war; leaving the Executive the power to repel sudden attacks.” Mr. Draper views this as conclusive evidence that the Framers limited presidential warmaking power to defending against sudden incursions into US territory. The case, however, is not so clear.

The context of Madison’s notation was the issue of who should have the power to make war and peace. It is unclear whether the exchange was directed solely at the formalities of declaring war and negotiating peace, or whether all uses of military force were being discussed. Moreover, Madison’s note can be read either as the limiting purpose, as one explanation, or merely as an acknowledgment of one effect, of the change. One of the difficulties in using Madison’s Notes is that they are precisely that. They do not purport to be a transcript. In any case, Madison’s statement is the beginning of the inquiry, not its end. While the Framers denied the President the authority to initiate a state of war, the question of his power to use military force without a declaration of war is far more complex than Mr. Draper appreciates.

Mr. Draper was particularly scornful of our assertion that the Framers may have granted Congress the power to “declare War” principally to control its domestic consequences, rather than to avoid foreign entanglements, noting that we failed to make “any kind of a case” for this view. Space constraints prevented us from making the case in Foreign Affairs, and we are subject to the same constraints here. Nevertheless, our point is briefly this. The Framers faced two issues with respect to warmaking power, how much to give the federal government, and in what branch to vest it. As in most other areas of debate, the proper extent of federal power overall dominated much of the Convention’s discussions.1

Ultimately, a number of warmaking powers were vested in the federal government, including the power to “declare War,” granted to Congress. Obviously, in analyzing federal authority to use military force, the interpretation of this grant is critical. If “declare war” is interpreted narrowly to mean that only Congress may authorize the use of military force, then it follows that Congress may do so only through a formal declaration of war. Congress, after all, is granted the power to “declare War,” not the power “to authorize the use of military force.” Few commentators have been willing to go so far.

In fact, declaring war is only one of several “warmaking” powers granted to the federal government. Congress also has, for example, the power to raise armies, to provide for a Navy, and to provide for organizing the state militias.2 In turn, the President was vested with the “executive power,” and specifically named commander-in-chief.

Of course, as Mr. Draper correctly points out, the power to “declare War” must mean something. In divining its original meaning, it is useful to explore the Framers’ understanding of that term, as well as their principal concerns with respect to the use of military force. The eighteenth century distinguished between the use of military force and the formal act of declaring war. A declaration of war had both foreign and domestic juridical consequences not attendant upon the mere use of military power.3 Arguably, the danger to domestic liberties posed by the existence and use of military force, including the domestic consequences of a declaration of war, were of more real and immediate concern to the Founding Generation than was the danger of foreign entanglements.4

We did not argue that this was the Framers’ only concern with respect to the use of military power. Indeed, some delegates to the Convention were very conscious of the dangers inherent in granting the Executive unlimited military authority. Charles Pinckney, for one, feared that granting the Executive the power of war and peace would “render the Executive a monarchy.”5 We agree with Professor Glennon that “the original materials suggest—with unusual force and consensus—that the war power was placed in congressional hands both for foreign policy reasons and to safeguard domestic liberties, which the Framers saw as interrelated.” To some extent, it is a question of emphasis.

In any case, where the emphasis is placed does not alone resolve the ultimate issue. The Constitution is open to differing interpretations as to what extent the President may use military force without a declaration of war. The Founding Generation itself disagreed about the nature and extent of the President’s foreign affairs, and particularly his “warmaking,” authority—most notably in the Pacificus/Helvidius debates of Hamilton and Madison. The fact that two of the principal Framers could emphatically disagree within a decade of ratification indicates that there is much more room for doubt as to the Constitution’s meaning than Mr. Draper allows. The views then championed by Hamilton and Madison form the antecedents for today’s debate over the extent of presidential authority.

In the final reckoning the issue was, and is, a political question. Each President must, in the first instance, decide whether any particular use of military force comports with his constitutional authority. If a President oversteps the mark, Congress has a number of very effective means to check him. We did not argue, as Mr. Draper asserts, that the President has plenary authority to use military force, or that Congress may not “tie the President’s hands.” Congress can very well tie the President’s hands, but it must do so through the proper constitutional processes, which do not provide for a system of automatic, clinical procedures—like those of the War Powers Resolution—that exercise congressional authority without a vote. On the contrary, these processes leave Congress—as they ultimately also leave the President—accountable to its constituencies. This political accountability lies at the core of the Constitution’s design—the heart of its system of checks and balances.

It is this which Mr. Draper characterizes as our “hardboiled opinion” of Congress. In truth, we have more respect for Congress than do those who maintain that it cannot be expected to serve as an effective check on the President because it will never make difficult, politically risky decisions. Congress is certainly capable of defending its authority. Indeed, no one who has witnessed oversight hearings conducted by champions of legislative rights such as Representative John Dingell can doubt that Congress is always ready, willing, and able, to defend its constitutional prerogatives.

In conclusion, we agree with Mr. Draper that the issue we framed in Foreign Affairs was whether or not the checks and balances the Framers built into our Constitutional system will continue to work as they were intended to—and there was nothing unwitting about it. As we explained there, the fatal defect in the War Powers Resolution is not that it allows Congress to tie the President’s hands, but that it lets Congress do so without political accountability. If Congress can check the President without voting, then indeed “we are no longer living under the Constitution that we thought we had.”

Please note that the views expressed herein are our own, and do not necessarily represent the position of the Administration.

David B. Rivkin, Jr.
Associate General Counsel
US Department of Energy
Washington, DC

Lee A. Casey
Deputy Associate General Counsel
US Department of Energy
Washington, DC

Theodore Draper replies:

Rivkin and Casey devote most of their letter to the distinction between “make” and “declare” war. Much of their argument seems to rest on a distinction between initiating “a state of war” and using “military force.” They do not make clear what kind of “military force” they are referring to, and thus needlessly confuse the issue.

If they are referring to large-scale military force, such as in the Korean and Vietnam wars, that comes under “a state of war.” If they are referring to small-scale military force, such as Jefferson’s resistance to Barbary blackmail, that would come under “military force.”

It has always been understood—ever since Madison made it plain—that there is an exception to the necessity for a congressional declaration of war in the use of military force. That exception was made to enable the president “to repel sudden attacks” on the United States.

The real issue concerns the use of largescale military force. Rivkin and Casey hopelessly confuse the issue by manipulating the terms “declare war” and “military force,” in the following way:

If “declare war” is interpreted narrowly to mean that only Congress may authorize the use of military force, then it follows that Congress may do so only through a formal declaration of war. Congress, after all, is granted the power to “declare War,” not the power “to authorize the use of military force.”

This is playing with words. Wars are initiated by the use of military force. If the use of military force is large scale, it amounts to the kind of war that Congress must constitutionally declare. It is absurd to think that the president can use any military force anywhere as much as he pleases and still preserve a meaningful congressional declaration of war.

Rivkin and Casey allude to the Pacificus-Helvidius debates between Hamilton and Madison to show that the Constitution is open to differing interpretations. Hamilton is apparently their mentor in this matter. Despite his great abilities and important service, he is a treacherous guide in determining the limits of presidential power. Hamilton believed in a monarchical presidency; he said that “the British government forms the best model the world ever produced.” He advocated what he called a version of “elective monarchy.”

In foreign policy, we are now confronted with a monarchical presidency, which was just what Hamilton wanted, and that is why his interpretation is being put on the same level as Madison’s. The “Father of the Constitution” has been made its orphan.

Two subsidiary points remain:

  1. Rivkin and Casey now deny that they had argued that “Congress may not ‘tie the President’s hand.’ ” But this is how they originally criticized the War Powers Resolution: “We believe that the resolution’s biggest flaw, and it has many, is that it allows Congress to tie the president’s hands.”

Anyone must read this to mean that it is forbidden for Congress to do anything “to tie the president’s hands.”

  1. Rivkin and Casey also deny that they had expressed a “hardboiled opinion” of Congress. But this is what they had previously written: “It is not that the tools granted to Congress by the Framers are ineffective, but that members of Congress lack the political will to employ them.”

They have evidently bethought themselves that administration lawyers should not show such open contempt for Congress. It will not do to cite Representative John Dingell, who has limited himself to malfeasances in the domestic sphere. I have long pointed out that we have a “bifurcated presidency,” which has arrogated to itself the power in the foreign that it does not claim in the domestic sphere. If the monarchical foreign-policy presidency extends to the domestic sphere, we will be in the grip of a full-fledged “elective monarchy.”

  1. 1

    See, e.g, Notes of Debates in the Federal Convention, supra note 1, at 142–143, 474–475, 481–485, 639.

  2. 2

    The appointment of the militia’s officers and the conduct of its training were reserved to the states. This was an important reservation, since it was not at all clear to what extent the federal government would maintain regular military forces. Essentially, immediate authority over the largest existing military establishment in the new Republic was not vested in the federal government at all.

  3. 3

    A declaration, for example, left Congress free to allow the quartering of soldiers in private homes. In later years, a state of war has been used to justify limits on free speech, stringent economic regulation, and even the internment of United States citizens without trial. It is not a step to be taken lightly.

  4. 4

    Standing armies were unpopular with the Founding Generation. As Madison wrote: “the liberties of Rome proved the final victim to her military triumphs, and…the liberties of Europe…have with few exceptions been the price of her military establishments.” The Federalist, No. 41 271 (J. Madison; J. Cooke ed. 1961). Englishmen traditionally distrusted standing armies—behind each uniform lurked a potential Cromwell—and they also were expensive. The colonists, moreover, had had a thoroughly bad experience with the British regulars dispatched to America in the 1770s. Overall, they preferred to rely on the militia, and the Constitution’s drafters spilled much ink in convincing their contemporaries that the power to raise armies should be vested in the federal government at all. See e.g., The Federalist Nos. 24–29 152–187 (A. Hamilton; J. Cooke ed. 1961).

  5. 5

    Notes of Debates in the Federal Convention, supra note 1, at 45.

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