The Framers' War-Making Powers

Article excerpt

Professor John Yoo ("Exercising Wartime Powers: The Need for a Strong Executive," Spring 2006) may be correct that modern practice gives US presidents substantial say in deciding when to use military force. He is wrong, though, to trace this power to the Framers' Constitution. It is true that the US Constitution envisioned a strong executive who could, as Alexander Hamilton said, act with "decision, activity, secrecy, and dispatch." But the Framers also wanted legislative involvement in key foreign affairs decisions--treaties, appointments, and war--to provide, as Hamilton also said, "safety in the republican sense."

Hamilton and other founders distinguished between generally conducting foreign affairs, which they thought should be a presidential power, and deciding to begin war. As Hamilton explained in his 1793 Pacificus essays: "It is the province and duty of the executive to preserve to the nation the blessings of peace. The Legislature alone can interrupt them by placing the nation in a state of war."

The key constitutional clause is of course the declare-war clause. The Constitution's initial draft gave the US Congress power to "make" war. As Massachusetts delegate Rufus King observed, though, this seemed to give Congress power to "conduct" war, which should be done by the President. At James Madison's suggestion, the Framers changed Congress' power to "declare" war. As Madison later wrote to Thomas Jefferson, this retained Congress' power over the decision to begin war: "The constitution supposes, what the history of all governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the Legislature."

Yoo makes two main arguments why the declare-war clause does not produce the result Hamilton and Madison later described. The first is that reading "declare" to mean "commence" does not match up with the Constitution's other references to war. …