The anti-federalists and presidential war powers.

• Author: Kistler, Cameron O.
• Position: COMMENT

The difficult legal questions prompted by the war on terrorism have generated a lively debate over the original understanding of the President's war powers. (1) By now, the two sides of that debate are well known. (2) Congressionalists argue that the original understanding of the Declare War Clause required Congress to authorize all acts of war, except those in response to a sudden attack. (3) Presidentalists, on the other hand, argue that the Founders' revision of the Clause, from conferring the expansive power to "make War" to the power to "declare War" (the phrasing ultimately adopted), (4) reflected their desire to grant Congress only the relatively narrow power to legalize a conflict under international law. (5)

However, the voluminous war powers literature has generally neglected the state ratification debates. (6) In particular, no scholar has developed a comprehensive picture of the arguments made by the Anti-Federalists. (7) This Comment argues that the Anti-Federalist position supplies a crucial missing link in understanding the original division of war powers. Notably, some AntiFederalists, although generally critical of the scope of the President's powers under the Constitution, advanced the opposite criticism of the Declare War Clause, faulting it for concentrating power in Congress. For example, during the Virginia ratification debates, Patrick Henry confidently predicted that if the Constitution were ratified, the President would use his constitutional powers to make himself king and "enslave[] America." (8) Yet Henry argued that Congress, and not the President, had too much of the war power. (9) "Congress," noted Henry, would be able to "declare war ... and levy your money[] as long as you have a shilling to pay." (10) Henry preferred the "strong check" inherent in the mixed English system, whereby the king's power to declare war was balanced by Parliament's ability to fund war, and neither branch could unilaterally commit the country to a conflict. (11)

What explains Henry's potentially contradictory comments? Some congressionalist scholars have argued that Henry's assertion of an excessive grant of power to Congress demonstrates that Congress was originally understood to have the war power. (12) John Yoo has responded for the presidentialists, suggesting that Henry "strategically misconstrued" the division of war powers in order to make the federal government seem "entirely unchecked and, therefore, easily susceptible to tyranny." (13) This Comment argues that Henry's comments reflected a sustained Anti-Federalist objection to Congress's war powers and had deep roots in Anti-Federalists' philosophy of government. In so doing, it draws on source material heretofore neglected in war powers scholarship. Part I of this Comment examines the state ratification debates and contemporaneous public statements by Anti-Federalists in order to demonstrate the pervasive nature of the Anti-Federalist objection to the vesting of the power to declare war in Congress. Part II then argues that these objections are strong evidence in favor of the congressionalist understanding of the Declare War Clause.

1. THE ANTI-FEDERALIST ARGUMENT AGAINST CONGRESS'S POWER "TO DECLARE WAR"

   The existence of a pervasive Anti-Federalist argument during the state ratification debates that Congress possessed too much of the war power greatly complicates the presidentialist interpretation of Patrick Henry's comments. The presidentialist argument that Henry "strategically misconstrued" the Constitution's division of war powers presupposes that the Anti-Federalists believed that the President had the constitutional power to initiate foreign wars. Yet a review of the state ratification debates and contemporaneous evidence reveals widespread evidence of the sincerity of the Anti-Federalist position, undercutting the historical credibility of the presidentialist interpretation.

   Even in Henry's native Virginia, there was at least one other Anti-Federalist advancing Henry's argument. John Dawson, a member of the Continental Congress who would go on to serve in the House of Representatives, objected during Virginia's ratification debate that the Constitution gave "Congress ... the power 'to declare war,' and also to raise and support armies." (14) That combination of powers worried Dawson because "the nexus imper[ii] of the British Constitution is ... lost" under the American Constitution. (15)

   Dawson's concern about the lost "nexus imperii" lies in contemporaneous Scottish Enlightenment thought on the separation of powers. (16) At the time of the ratification debates, some scholars trained in the Scottish tradition believed that it was necessary to make the separate branches of government dependent on each other in order to prevent factionalism and encourage peaceful relations between the branches. (17) John Witherspoon, then President of the College of New Jersey (Princeton) and a leading exponent of Scottish Enlightenment thought in America, explained in his lectures that

   where there is a balance of different bodies ... there must be always some nexus imperii, something to make one of them necessary to the other.... In order to produce this nexus, some of the great essential rights of rulers must be divided and distributed among the different branches of the legislature.... [I]n the British government, the king has the power of making war and peace,-but the parliament have the levying and distribution of money, which is a sufficient restraint. (18) Anti-Federalists in other states also worried about the loss of this nexus. In Pennsylvania, "A Federal Republican" writing in Philadelphia's Freeman's Journal echoed such concerns. "By this constitution," wrote the anonymous author,

   the...