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* The Future of Freedom Foundation * Jun/95 *


The Power to Declare War, Who Speaks for the Constitution?: Part I
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by Doug Bandow

When presidents lose domestic support, they invariably look
overseas for crises to solve. President Clinton is no different.
After the Republicans swept Congress, he immediately flew off to
the Pacific for a series of meetings with foreign leaders. Aides
predict that he will continue to pay greater attention to foreign
policy, where he is able to operate with fewer restrictions from a
hostile Congress.

But foreign policy means more than just international summits. It
also means war, as is evident from the Clinton administration's
continuing attempt to push America, through the NATO alliance, into
a larger role in the Balkans imbroglio. So far, President Bill
Clinton has undertaken or considered military action in Bosnia,
Haiti, Korea, and Somalia. At no point has he indicated a
willingness to involve Congress in the decision-making process. To
the contrary, in late 1993 he stated: "I would strenuously oppose
attempts to encroach on the President's foreign policy powers."
In this way, at least, he is acting like many of his predecessors.
Bill Clinton emphasizes that he is the commander-in-chief, and, he
claims, "The Constitution leaves the President, for good and
sufficient reasons, the ultimate decision-making authority." As
such, he argues, he is entitled to do whatever he pleases with the
military: "The President must make the ultimate decision."
In fact, such an attitude has been broadly held by chief executives
around the world. A decade ago, then-Defense Secretary Caspar
Weinberger observed of America's great Cold War adversary:

Now who among the Soviets voted that they should invade
Afghanistan? Maybe one, maybe five men in the Kremlin. Who has the
ability to change that and bring them home? Maybe one, maybe five
men in the Kremlin. Nobody else. And that is, I think, the height
of immorality.

Yet, the president served by Secretary Weinberger, Ronald Reagan,
made not the slightest pretense of consulting Congress before
invading Grenada and overthrowing its government. George Bush
attacked Panama and deposed its military dictator, Manuel Noriega,
with merely a nod to Congress, and only reluctantly accepted a
legislative vote before going to war against Iraq. And President
Clinton ended up only a Carter-brokered agreement away from
forcibly invading Haiti. (Of course, even congressional assent
would not mean that these or other military actions would be
morally or practically justifiable.)

Alas, this executive presumption goes back to Richard Nixon and
Harry Truman, and, indeed, much further. It was also shared by the
various potentates who once ruled Europe. Observed Abraham Lincoln,
a "strong" president who faced perhaps America's greatest crisis:
"Kings had always been involving and impoverishing their people in
wars, pretending generally, if not always, that the good of the
people was the object." He rejected the contention that presidents
have expansive war-making powers independent of Congress: "This,
our Convention, understood to be the most oppressive of all Kingly
oppressions; and they naturally resolved to so frame the
Constitution that no one man should hold the power of bringing this
oppression upon us." The opposing view, he concluded, "destroys the
whole matter, and places our President where kings have always
stood."

It was for this reason that many early Americans opposed the
proposed Constitution, fearing that it gave to the president powers
too similar to those of Britain's king. Not so, nationalist
Alexander Hamilton reassured his countrymen. In fact, the
president's authority was:

. . . 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.

Perhaps part of the problem is that modern chief executives, who
increasingly style themselves after their monarchical forebears,
making war around the globe on their own initiative, do not
understand which legislature Hamilton was referring to. Bill
Clinton moved up by twenty-four hours his planned invasion of Haiti
to forestall an adverse congressional vote, but did press for
legislative blessing from the U.N. American diplomats successfully
lobbied members of the Security Council: the enlightened nations of
Nigeria, Oman, Pakistan, for instance, along with China, whose
rulers' commitment to democracy is well known; Djibouti, with a
total population less than that of a single congressional district;
and Rwanda, then still represented by a diplomat from the defeated
Hutu regime. Thus, President Clinton was granted permission by a
smattering of foreign autocrats to take the United States to war.
But the U.S. Constitution, to which the president swears
allegiance, refers not to the U.N. but rather to the American
Congress. Article 1, Sec. 8(11) states that "Congress shall have
the power . . . to declare war." As Alexander Hamilton indicated,
the president is commander-in-chief, but he is to fulfill his
responsibilities only within the framework established by the
Constitution and subject to the control of Congress.

Of this, there simply is no doubt. Wrote James Madison in 1793, it
is necessary to adhere to the "fundamental doctrine of the
Constitution that the power to declare war is fully and exclusively
vested in the legislature." Modern supporters of the doctrine of
president-as-Caesar make much of the fact that convention delegates
changed Congress' authority from "make" to "declare" war, but they
did so, explained Madison, only to allow the president the
authority to respond to a sudden attack. When Pierce Butler of
South Carolina formally proposed giving the president the power to
start war, Elbridge Gerry of Massachusetts said that he "never
expected to hear in a republic a motion to empower the executive to
declare war." Butler's motion was quickly rejected.

The reasoning of the conferees in opposing Butler's measure was
simple. Explained Virginia's George Mason, the president "is not
safely to be entrusted with" the power to decide on war. Mason
therefore favored "clogging rather than facilitating war." James
Wilson, though an advocate of a strong presidency, approvingly
observed that the new constitutional system "will not hurry us into
war." Instead, "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." Similarly, Thomas Jefferson wrote:
"We have already given . . . one effectual check to the dog of war
by transferring the power of letting him loose."

Even Hamilton agreed with his long-time adversary on this point,
pointing out that the war powers of the president were "in
substance much inferior to" that of the British king. And Hamilton
supported this result even while backing strong executive power. As
he wrote in the Federalist No. 75:

The history of human conduct does not warrant that exalted opinion
of human virtue which would make it wise in a nation to commit
interests of so delicate and momentous a kind, as those which
concern its intercourse with the rest of the world, to the sole
disposal of a magistrate created and circumstanced as would be a
President of the United States.

This fundamental concern of the Constitution's framersan
unwillingness to trust "a single man . . . to involve us in such
distress," in Wilson's words, has certainly been validated by
American history. The manifold dishonest and secret machinations of
this century's presidents, especially the "strong" ones so highly
rated by historians, prove how dangerous it is to trust chief
executives with minor grants of authority, let alone the power to
take the nation into war. If requiring a legislative vote is no
guarantee that the public will be protected from unnecessary and
bloody national crusades, it does at least force a debate and more
easily allow voters to ultimately hold someone responsible for
their decisions.

Against this abundant historical record there is no serious
rebuttal. George Bush, for instance, stated that "I don't think I
need it" when asked if congressional approval was necessary before
attacking Iraq. Why? "Many attorneys," he said, had "so advised
me." He apparently did not bother to read the Constitution himself.
Onetime law professor Bill Clinton offered no better justification.
When it came to both Bosnia and Haiti in late 1993, Clinton said
that he opposed "any attempts to encroach on" his prerogatives. He
did, however, echo George Bush in saying that he would "encourage
congressional authorization of any military involvement in Bosnia."
As for Haiti, he stated last August: "I would welcome the support
of the Congress and I hope that I will have that. But like my
predecessors in both parties, I have not agreed that I was
constitutionally mandated to get it." In short, the president
desired a guaranteed affirmative vote. The Constitution, however,
does not limit Congress to voting yes.

The fact that the Constitution gives Congress the final decision as
to war and peace does not mean that there are no gray areas. But
the existence of some unclear cases does not mean that there are no
unambiguous instances where congressional approval is required,
such as defending South Korea from North Korea, spending a decade
warring in Indochina, invading Panama and Haiti, transporting a
half-million soldiers to the Middle East to attack Iraq, conquering
Haiti, and intervening on Bosnia's side in the Balkans civil war.
What conceivable justification is there for ignoring the
Constitution's straightforward requirement in cases such as these?
Advocates of expansive executive war power, oddly enough, including
some conservatives who claim to believe in a jurisprudence of
"original intent", have come up with a number of reasons to give
the president virtually unrestrained authority to act. One is that
the president has some undefined "foreign affairs power" that
apparently overrides the war powers provision. Yet, the
Constitution carefully circumscribes the president's authority in
foreign affairs in a number of waysthe Senate must approve
treaties and ambassadors, for instance. Both the House and Senate
regulate commerce with other countries; establish the military;
organize the militia; make decisions covering the use of these
forces; and oversee the rules of war (by authorizing letters of
marquis and reprisal, defining and punishing piracy, and so forth).
All told, writes Jack Rakove, historian and director of the
American Studies Program at Stanford University, the constitutional
provisions "that laid the strongest foundation for a major
executive role in foreign policy are more safely explained as a
cautious reaction against the defects of exclusive senatorial
control of foreign relations than as a bold attempt to convert the
noble office of a republican presidency into a vigorous national
leader in world affairs."

Mr. Bandow is a senior fellow at the Cato Institute and former
special assistant to President Reagan. A graduate of Stanford Law
School, he is a member of the California and D.C. bars and the
author of The Politics of Envy: Statism as Envy.

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