The Framers, on War Powers
By Leon Friedman and Burt Neuborne; Leon Friedman is professor of law at Hofstra University. Burt Neuborne is professor of law at New York University Law School.
Published: November 27, 1990
President Bush promised to appoint judges who would interpret the Constitution strictly. He has lectured us about remaining faithful to the intentions of the Framers. How then can he argue that he has the power to start a war in the Persian Gulf without the express consent of Congress?
There are areas where the intentions of the Founders are ambiguous. In matters of war and peace, however, they could not be clearer.
The Constitution provides, in Article I, Section 8, that "Congress shall have the power to declare war."
The definitive explanation of the constitutional text, written by Alexander Hamilton in the Federalist Papers in 1788, states: "The President is to be Commander and Chief of the Army and Navy of the United States. In this respect his authority would be nominally the same as that of the King of Great Britain, but 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."
James Madison's notes of the debates at the Constitutional Convention in 1787 reveal that when Pierce Butler of South Carolina urged that the President be given the power to initiate a war, the delegates overwhelmingly rejected his proposal. In opposition to the Butler plan, Elbridge Gerry of Massachusetts said that he "never expected to hear in a republic a motion to empower the Executive to declare war." George Mason of Virginia remarked that he was "against giving the power of war to the executive" because the President "is not safely to be trusted with it." Mason maintained that he was for "clogging rather than facilitating war; but for facilitating peace."
The Convention adopted Madison's language that "Congress shall have the power to declare war," language that Madison predicted would "leave to the Executive [ only ] the power to repel sudden attacks."
The President should be reminded that the Founders speak with a single voice on the lack of constitutional authority for him to start a war.
He should read their lips.