The U.S. Constitution and the Power to Go to War: Historical and Current Perspectives

By Gary M. Stern; Morton H. Halperin | Go to book overview
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2 Constitutional Constraints: The War Clause

Peter Raven-Hansen

The history of the Constitution's War Clause1 is familiar to anyone who has read one of the more than fifty books or 250 scholarly, articles written to date on the constitutional war powers. "Mr. Madison and Mr. Gerry moved to insert 'declare,' striking out 'make' war; leaving to the Executive the power to repel sudden attacks."2 This snippet from the records of the Constitutional Convention is quoted or paraphrased in every one of these writings. Almost as many note that the President has used armed force abroad on_____(fill in the blank) occasions over 200 years without a declaration of war.3

Yet, with obligatory cites to this familiar history, professors, politicians, and pundits recently reached widely different conclusions about President Bush's constitutional authority to order Operation Desert Storm without a congressional go-ahead. President Bush himself invoked custom, when he brushed off questions about the law with the observation that "history is replete with examples where the President has to take action."4 Others argued from the "repel-sudden-attack" notes of the Convention that the Constitution gives Congress the decision to fight offensive war and gives the President the decision to fight defensive war, but they disagreed about which was which. At least one scholar, echoing claims made during the Vietnam War, suggested that the President lacked authority to launch Operation Desert Storm even after Congress's resolution of approval because the Constitution requires formal declaration.5

This diversity of conclusions no doubt confirms the gloomy prognosis of John Quincy Adams: "The respective powers of the President and Congress of the United States in the case of war with foreign powers are yet undetermined. Perhaps they can never be defined."6 But it may also reaffirm the old adage that "familiarity breeds contempt." Over-familiarity with the history of the making and execution of the War Clause may have generated unconscious contempt for its details; the history is more often cited than examined.

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