Declaration of War

• Author: Joseph W. Bishop
• Pages: 755-756

Page 755

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...