DECLARATION OF WAR

The Constitution gives Congress the power "to declare War …" (Article I, section 8, clause 11). There is no explicit provision for any other exercise by the United States of its sovereign power to make war, although the President is made " commander in chief of the Army and Navy of the United States …" (Article II, section 2). But the draftsmen were certainly familiar with the concept of undeclared war, usually with limited purposes and theaters of operation, such as the French and Indian War of 1754–1756 and the opening campaign of the Seven Years War between England and France, in which george washington had fought as a lieutenant colonel. Indeed, alexander hamilton observed that "the ceremony of a formal denunciation [i.e., declaration] of war has of late fallen into disuse" (the federalist #25). Whether the Framers intended to give Congress the paramount power to wage war against other sovereigns is a question that has ever since been debated but not formally resolved. The problem had not, of course, arisen under the articles of confederation, when all federal (or confederate) power was vested in the Continental Congress. The records of the constitutional convention furnish no clear answer. The draft submitted by the Committee on Detail on August 6, 1787, gave Congress the power "to make war." When it was considered eleven days later, on motion by elbridge gerry and james madison, "make" was changed to "declare." The brief debate gives no indication of any effect the change was intended to have on the allocation of war-making power between President and Congress. For what it is worth, some years later Hamilton expressed the view that making war was essentially an executive function, while Madison thought the power belonged primarily to Congress.

Whatever the Framers may have intended, the practice has clearly been in accord with the Hamiltonian view. The United States has fought only five declared wars (the War of 1812, the Mexican War, the Spanish War, world war i, and world war ii), but the President has committed the armed forces to combat on more than 150 other occasions, from john adams's undeclared naval war with France in 1798–1799 to the korean war and the vietnam war. (See also police action; state of war.) The civil war was, of course, undeclared, since a declaration would have constituted a recognition of Confederate sovereignty, but it was treated as war for the purposes of international law. (See prize cases, 1863.) As a practical matter, whether a formal declaration of war adds much to the power of the President is doubtful, so long as Congress furnishes the necessary men and money. Thus, during the Vietnam War the lower federal courts held that Congress, by supplying troops and arms, made the President's actions constitutional; and the Supreme Court let their decisions stand. (See massachusetts v. laird.)

Congress has occasionally attempted to assert its primacy in war, but without much success. In 1896, when a group of congressmen proposed to declare war on Spain, grover cleveland scotched the project by informing them that as Commander in Chief he had no intention of using the Army and Navy for any such purpose. The war powers resolution of 1973, enacted over President richard m. nixon's veto, provides in substance that before the President can commit the armed forces to actual or potential combat he must first "consult" with Congress and must withdraw the forces within ninety days unless Congress declares war or provides "specific authorization" for their continued employment.

Scholars disagree on the constitutionality of the War Powers Resolution. In any case, it seems unlikely to have much practical effect, as President gerald r. ford demonstrated in 1975 when he immediately, and with a minimum of "consultation," used the armed forces to rescue an American vessel, the Mayaguez, and its crew, who had been seized by the communist regime in Cambodia. History suggests that it will be politically very difficult for Congress to deny support when the troops are actually fighting. If there is any historical difference between wars declared by Congress and other wars, it seems to be that the former have usually been larger in scale and have had as their goal not some more or less limited objective, such as rescuing American citizens or defending an ally from attack, but the total defeat of the enemy.

Joseph W. Bishop, Jr.
(1986)

Bibliography

Cruden, John C. 1975 The War-Making Process. Military Law Review 69:35–143.

Lofgren, Charles A. 1972 War-Making Power under the Constitution: The Original Understanding. Yale Law Journal 81:672–702.

Rostow, Eugene V. 1972 Great Cases Make Bad Laws: The War Powers Act. Texas Law Review 50:833–900.