ANDROID VERSIÓN 10

To explore the original understanding of the Founders’ advocacy of congressional control over presidential war power through deliberation, I focus on the Founders’

historical interpretations of Declare War Clause. In general, I found that the Founders stressed, consistent with the central tenet of checks and balances, that the power to declare war is a concurrent and mixed power that mandates the president and Congress to deliberate over the just cause of a war and the appropriate content of such shared power.

During discussion in the Philadelphia Convention over the meaning of the current Declare War Clause, as constitutional historians know, the Clause was

changed from as statement that Congress has power to “make” war to a statement that Congress has power to “declare” war. The reason for this change is this: although the president cannot commence a war, he is better qualified than Congress to repel sudden attacks, conduct a war, and negotiate peace.¹ Therefore, during the Convention, Mr.

Butler stated that the function of Declare War Clause is to ensure that a war will be appropriately directed by the president, who can garner sufficient national support through a congressional declaration of war.² Proposing the vestment of a declaratory function in the Congress, Hamilton explained that the whole of military power,

1 2 THE RECORDS OF THE FEDERAL CONVENTION of 1787, at 318-9 (1911).

2 Id.

including the raising and regulation of an army and navy, is lodged in the legislature for the periodic election of Congress, and not among the individual states, so that the nation as a whole should be able to prevent other nations from invading it under this separation of war-declaring and war-making framework.³

Jay further pointed out in the FEDERALIST PAPERS that Congress’s deliberative function can serve to make certain what the just cause of war is:⁴

[Not] only fewer just causes of war will be given by the national Government, but it will also be more in their power to accommodate and settle them

amicably. They will be more temperate and cool, and in that respect, as well as in others, will be more in capacity to act advisedly than the offending state. . . . The national Government in such cases will . . . proceed with moderation and candour to consider and decide on the means most proper to extricate them from the difficulties which threaten them.

Thus, the power of war, first, for reasons of unification under attack, should not be held by among the individual states, and, second, the institutional design of the federal government can prevent the whole nation from being dragged into a war for

insufficiently considered reasons. Such an institutional design, which is provided in the text of the Constitution that the Congress shall have power to declare War and the President shall be Commander in Chief of the Army and Navy of the United States, further suggests that the initiation of a war cannot be duly vested in any one person, state, or institution.

This emphasis on the non-monopoly of war power by one person or institution was also best reflected in James Wilson’s often-cited speech at the Philadelphia Convention:⁵

3 ALEXANDER HAMILTON,THE FEDERALIST PAPERS No. 24, 25.

4 JOHN JAY,THE FEDERALIST PAPERS No. 3, 4.

5 2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 583(MERRILL JENSEN ED.,1976).

This [constitutional] system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress, for the important power of declaring war is vested in the legislature at large; this declaration must be made with the concurrence of the House of Representatives. From this circumstance we may draw a certain conclusion, that nothing but our national interest can draw us into war.

Therefore, the design of divided decision-making bodies manifestly signifies that it is to be the concurrent, but not monopolistic, nature of war powers that will keep the nation at peace.

In his speech on the Jay Treaty to the Congress, James Madison further explained that the nature of a separated power, including the Declare War Clause and Commander in Chief Clause, is actually a power that has a special need for the legislature’s deliberation:⁶

[It] could not be unreasonable, if the clauses under discussion were thought doubtful, to lean towards a construction that would limit & control the Treaty-making power, rather than towards one that would make it omnipotent. . . . this House in its Legislative capacity, must exercise its reason; it must deliberate;

for deliberation is implied in Legislation. . . . Where the Constitution contains a specific & peremptory injunction on Congress to do a particular act, Congress must of course do the act, because the Constitution, which is paramount over all the Departments, has expressly taken away the Legislative discretion of Congress. The case is essentially different where the act of one Department of Government interferes with a power expressly vested in another and no where expressly taken away . . . and if it be a Legislative power, it must be exercised with that deliberation & discretion . . .

This passage actually provides us with an important approach toward interpreting constitutional texts that touch on Declare War Clause through the lens of the

government’s deliberative function. First, since war is presumed to be something that

6 1 THE FOUNDERS CONSTITUTION 10, DOCUMENT 21 (http://press-pubs.uchicago.edu/founders/documents/v1ch10s21.html)

can be triggered by the president quite easily,⁷ the framers had to be explicit in allocating separate war powers to the Congress and president, thus proclaiming a declaration of war’s concurrent nature. Second, deliberation, especially congressional deliberation on the war and foreign affair powers, is the injunction provided by the Constitution on Congress to maintain the war powers in an orchestrated balance in coordination with the president. Third, if doubt over explicitly concurrent powers still continues after prudent deliberation, a reasonable decision favoring the Legislature is based on control and limit and not on one side of the war power balance (i.e. the president) omnipotent.

I think that the readings presented above of war or foreign affair power and the constitutional clause as a whole--readings that stress control and limit through

congressional deliberation--are also consistent with and reflect a more general and structural tenet among constitutional branches: checks and balances. In fact, the separation of powers doctrines have aroused contentious academic debates regarding the purpose of such a separated powers design. In the most general sense, the debates over that doctrine all agree on its purposes: the encouragement of self-determination, the rule of law, and protection of individual liberty.⁸ The framers also recognized that effective and limited government requires both independence of and interdependence among the different branches. ⁹ As Madison explained in THE FEDERALIST,¹⁰

7 For example, in a letter to Jefferson, Madison wrote, “The constitution supposes, what The History of all [Governments] demonstrates, that the [Executive] is the branch of power most interested in war, &

most prone to it. It has accordingly with studied care, vested the question of war in the [Legislature].”

See 6 THE WRITINGS OF JAMES MADISON 312 (GAILLARD HUNT ED., 1906)

8 See Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U.PA.L.REV. 1513, 1534 (1994)

9 See Thomas O. Sargentich, The Contemporary Debate about Legislative-Executive Separation of Powers, 72 CORNELL L.REV. 430, 434,5 (1987).

10 JAMES MADISON,THE FEDERALIST PAPERS No. 47.

The accumulation of powers legislative, executive, and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. . . . The preservation of liberty requires, that the three great departments of power should be separate and distinct.

Although affected by Montesquieu’s doctrine of the “pure” separation of powers,¹¹ Madison, by examining the history of the inefficacy of absolutely separated powers and concentration of powers in the states’ legislatures during the Confederation period, began to urge the delegates to the Philadelphia Convention, as Professor Cynthia Farina points out,¹² to consider a stable and workable government through

“mixed” governmental powers.¹³

Madison further explained that preventing the concentration of power in one branch was “the watchword for a system of interrelationships through which political power would be diffused and checked.”¹⁴ In the FEDERALIST PAPERS, he also wrote that¹⁵

[t]he great authority against a gradual concentration of the several powers in the same department, consists in giving to those who administer each

11 See Cynthia Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM.L.REV. 452 (19889).

12 Id.

13 Therefore, probably one of the most prominent sentences in The Federalist squarely fleshed out Madison’s mixed-government view:

Ambition must be made to counteract ambition. . . . But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

A Dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. See JAMES MADISON,THE FEDERALIST PAPERS

NO. 51.

14 See Cynthia Farina, supra note 12, at 480.

15 JAMES MADISON,THE FEDERALIST PAPERS NO. 51.

department, the necessary constitutional means, and personal motives, to resist encroachments of the others.

Therefore, Madison suggested that the entire power be granted to the national

government as a whole rather than to any specific branch of it. As such, separation of powers, as a matter of course, becomes a functional doctrine that focuses on checks and balances among different branches. But that does not suggest that separation of powers loses its importance, in the sense that power should be appropriately allocated to different branches, but not for the sake of a rigidly legislative, executive, or judicial outline. Power is better conceived as a parcel consisting of several sub-divided units wherein no unit is capable of standing for the whole.

That functional perspective is also clearly described in a modern U.S. Supreme Court ruling:¹⁶

In determining whether the Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive branch from accomplishing its constitutionally assigned functions. Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress.

As such, a functional approach does not actually deem the allocation of powers to be a task that considers only the formal determinacy of law. Rather it considers the

complicated needs of society in different contexts, which dictates the expected behavior of all the governmental powers involved.

Such a functionalist view was also consistently echoed in the framers’ views on war powers. Other than Declare War Clause, the framers’ general understandings of the Original Clause further enforce the idea that the appropriations powers of the House would serve as another of the most important measures to control military

16 Nixon v. Administrator of Gen. Servs., 443 U.S. 425, 443 (1977).

power.As Jefferson wrote to Madison, it manifested the “separation of money and sword”¹⁷ perspective:¹⁸

We have already given in example one effectual check to the Dog of War by transferring the power of letting him loose from the Executive to the

Legislative body, from those who are to spend to those who are to pay.

Therefore, after looking into various historical interpretations of Declare War Clause held by the Founders combined with their illustration of the general principles of the checks and balances doctrine of governmental structure, I think these arguments all converge on an important thesis: Congress should control presidential war power through deliberation. This suggests that when interpreting war powers, this general thesis about the war power structure is a strong reminder that the Declare War and Commander in Chief clauses encourage the Congress and the president to cooperate and deliberate with each other and not necessarily engage in an all-or-nothing zero-sum interaction.