The Founders' Declaration of War: The Declare War Clause and the Constitutionality of Undeclared War

• Author: Reuben W. Blum
• Position: Third-year law student at The University of Texas School of Law
• Pages: 279-304

The Founders’ Declaration of War: The Declare

War Clause and the Constitutionality of

Undeclared War

REUBEN W. BLUM*

ABSTRACT

The Constitution grants Congress the power to declare war. Although a plain

reading of the Declare War Clause suggests that Congress has the exclusive

power to initiate armed conflict, historical practice indicates otherwise. Congress

has only declared war five times in American history and every American armed

conflict since World War II was waged without a declaration of war. Opposition to

the Vietnam War and the 2003 Iraq War raised concerns about unconstitutional

wars.

This Note examines whether the Founders would have considered it constitu-

tional for the President to initiate military action absent a congressional declara-

tion of war. Analyzing the theoretical and political foundations of the declaration

of war reveals that the Founders believed war powers are shared between the ex-

ecutive and legislature. Yet, the geopolitical reality of the early United States

influenced how the President exercised war power in practice. The Quasi-War

with France set a precedent that the First Barbary War reinforced: the President

can initiate armed conflict without a formal congressional declaration of war if

force is used defensively, the conflict is limited, and Congress provides partial

authorization.

TABLE OF CONTENTS

I. INTRODUCTION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280

II. THE THEORY AND POLITICS BEHIND THE DECLARATION OF WAR . . 281

A. The British Backdrop .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281

B. The Articles of Confederation . . . . . . . . . . . . . . . . . . . . . . . . 284

C. The Constitutional Convention . . . . . . . . . . . . . . . . . . . . . . . 285

D. The Proclamation of Neutrality Debate . . . . . . . . . . . . . . . . . 287

III. PRESIDENTIAL WAR POWERS IN PRACTICE . . . . . . . . . . . . . . . . . . . 293

* Reuben Blum is a third-year law student at The University of Texas School of Law. Before law

school, Reuben worked in the financial services industry. Reuben holds a Master of Science from the

Georgetown University Walsh School of Foreign Service and a Bachelor of Arts from Columbia

University. © 2023, Reuben W. Blum.

279

A. The Quasi-War with France . . . . . . . . . . . . . . . . . . . . . . . . . 293

B. The Quasi-War Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296

C. Jefferson’s Barbary War . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300

IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303

I. INTRODUCTION

Every American armed conflict since World War II was waged without

Congress declaring war. Throughout the second half of the twentieth century,

presidential critics began to worry that each administration was growing more

comfortable with unilaterally initiating military operations. In that time, much of

the American public began to perceive the declaration of war as an anachronism.

Popular opposition to the Vietnam War from the late 1960s to the mid 1970s per-

petuated the view that the President could arbitrarily mobilize the country’s

armed forces.

1

See Arthur Schlesinger, Jr., Congress and the Making of American Foreign Policy, FOREIGN AFFS.

(Oct. 1 1972), https://www.foreignaffairs.com/united-states/congress-and-making-american-foreign-

policy [https://perma.cc/4NGC-HA2U] (“[Concerns about] foreign policy becom[ing] the property of

the executive [have] acquired special urgency . . . because of the Indochina War, with its aimless

persistence and savagery.”).

The public echoed those concerns after the 2003 invasion of Iraq,

during the U.S. Military’s protracted engagement in the Second Iraq War.

2

Critics of American involvement in conflicts such as Vietnam and Iraq accuse

the executive branch of waging “unconstitutional” wars.

3

According to that

theory, the President may not initiate armed conflict unless Congress formally

declares war because the U.S. Constitution gives only Congress the power to

declare war. This criticism is reasonable at first glance. The Declare War Clause,

art. I, § 8, cl. 11, is one of the best known passages of the Constitution among the

general public. The text reads: “The Congress shall have Power . . . To declare

War, grant Letters of Marque and Reprisal, and make Rules concerning Captures

on Land and Water.”

4

Indeed, a plain reading of the text suggests that Congress has the exclusive

power to initiate armed conflict. However, historical practice flies in the face of

that reading. Congress has only declared war five times throughout history: in the

War of 1812, the Mexican-American War in 1848, the Spanish-American War in

1.

2. See SARAH BURNS, THE POLITICS OF WAR POWERS: THE THEORY AND HISTORY OF PRESIDENTIAL

UNILATERALISM 18 (2019) (“Presidents George W. Bush, Obama, and Trump asserted breathtaking

interpretations of what the executive can do unilaterally.”).

3. See John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of

War Powers, 84 CALIF. L. REV. 167, 171 (1996) (“Critics of the current war powers landscape accuse

Presidents from Harry Truman to George Bush of waging ‘unconstitutional’ wars.”).

4. U.S. CONST. art. I, § 8, cl. 11.

280 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 21:279