Founding-era jus ad bellum and the domestic law of treaty withdrawal.

Author:Hessel, Daniel J.
Position:II. The Original Understanding of Jus Ad Bellum and Congressional War Powers Implies a Role for Congress in Treaty Withdrawal B. Congressional War Powers through Conclusion, with footnotes, p. 2417-2444
  1. Congressional War Powers

    Section II.A demonstrated that, under Founding-era jus ad helium standards, treaty breach--and, therefore, withdrawal--was a just cause of war, conferring on the aggrieved party a legal right to declare war on the breaching party. This Section discusses the Founding-era understanding of war powers under the Constitution. It shows that the Founding-era Congress was contemporaneously understood to have broad powers to decide issues of war and peace. Because treaty withdrawal constituted treaty breach, and treaty breach implicated issues of war and peace, Congress's broad war powers suggest that Congress would have been understood to play a role in treaty withdrawal.

    1. The Original Understanding Was that Congress Had Broad War Powers

      The Constitution gives Congress the exclusive power to declare war in the so-called "War Powers Clause." (107) Many scholars have noted convincing evidence that Congress had robust power under the original understanding of this Clause. The wording of an initial draft of the War Powers Clause vested in the legislature the power to "make war." James Madison and Elbridge Gerry jointly moved to substitute the word "declare" for "make," hence the final diction. (108) Madison and Gerry feared that the phrase "'make' war, might be understood to 'conduct' it which was an Executive function." (109) No evidence suggests that, in substituting "declare" for "make," the Framers desired to instill in the Executive the power to commence war or to reduce congressional power to a mere formality. Indeed, only one delegate to either the Philadelphia Constitutional Convention or any of the thirteen original states ratifying conventions, Pierce Butler, appears to have suggested vesting plenary authority to start war with the President. (110) There is no evidence to suggest that anyone supported Butler's idea. (111) Rather, Gerry remarked that he "never expected to hear in a republic a motion to empower the Executive alone to declare war," and Butler eventually disowned the position. (112)

      Further arguments support the view that the original understanding of the War Powers Clause allocated broad power to Congress. Scholars note that involving more actors in the decision to declare war necessarily slows the process. If the President had plenary power to take the country to war--with Congress's role limited to an ex post declaration and funding of the war (113)--the decision to go to war could be swift. It would take little more than a presidential directive to military commanders. In contrast, a decision-making process involving Congress would be slower. At bottom, each house of Congress must cast a vote--a process that presumably involves debate and careful consideration. Where Congress has broad war powers, the President must offer the legislature some ex ante justification for the proposed war.

      Strong evidence supports the insight that the Founders envisioned Congress's role as slowing a decision to let slip the dogs of war. James Madison, for example, described war as "among the greatest of national calamities and sought a constitutional framework to prevent easy entry into hostilities. (114) Moreover, delegates to the Convention apparently believed that the executive branch was more likely than was the legislative branch to take the country into war. John Hart Ely noted that "[t]here were various statements by influential framers to the effect that executives tended to be more warlike than legislative bodies," (115) and characterized Madison's following statement as typical. The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the Legislature." (116)

      James Wilson, a delegate to the Constitutional Convention from Pennsylvania, at his state's ratifying debate, made clear that each of these concerns was reflected in the Constitution's structure:

      This 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 a war. (117) Some evidence suggests that even those Founders who were generally amenable to a strong Executive understood that Congress had a crucial role to play in deciding when to bring the country to war. Alexander Hamilton, for example, was a known advocate for a powerful presidency but proposed that the Senate declare wars and that the President "have the direction of war when authorized or begun." (118) The language implies that the President should not be the one to authorize or begin war; moreover, at the time of the proposal, not all wars were formally declared, which suggests that Hamilton's vision of the Senate's role should transcend mere formality and affect the substantive decision. Indeed, Hamilton wrote that the President's war power "would amount to nothing more than the supreme command and direction of the military and naval forces.... [The power of] declaring [] war and ... raising and regulating of fleets and armies ... by the Constitution under consideration would appertain to the Legislature." (119) Likewise, James Iredell advocated for a strong presidency and strong presidential power to conduct war once it was commenced but used similar language to describe his view of the power to enter war. (120)

      Indeed, in the original understanding of war powers, Congress's role was so sweeping that it extended not only to formally declared wars but also to the decision to use force in less severe circumstances. Charles Lofgren has examined in great detail the debates at both the Constitutional Convention and at each state's ratifying convention and concludes that the evidence leads to "a reasonable conclusion that the new Congress' power 'to declare War' was not understood [by the contemporary public] in a narrow technical sense but rather as meaning the power to commence war, whether declared or not." (121)

      These underlying normative decisions informed a crucial corollary to the declare war clause: Congress should play a role of primary importance in both declared and undeclared wars. Not all wars at the time of the Founding were formally declared. (122) To the extent that formal declarations were still in vogue, they were issued for large-scale public wars (sometimes called "perfect" war (123)). But perfect war was hardly the only type of warlike activity common at the time; rather, countries often authorized partial mobilization of private military resources to target specific foreign entities. (124) This was sometimes called imperfect' war. Justice Bushrod Washington's opinion in Bas v. Tingy illustrates the distinction: "[H]ostilities may subsist between two nations more confined in its nature and extent; being limited as to places, persons, and things; and this is more properly termed imperfect war...." (125)

      Textual and historical evidence suggests that the Founders intended to reserve to Congress the power to enter an imperfect war. First, Article I vests in Congress the power to grant letters of marque and reprisal. (126) These letters essentially authorized Americans to commit acts of war against the subjects of other nations. Sovereigns issued these letters primarily to ship captains who acted as official pirates for the state. This practice was how nations waged limited naval wars in the late 1700s and how they took reprisal when redressing national grievances. As Michael P. Kelly has noted, "The [Constitutional] [C]onvention record does not reflect any dissent over granting this lesser war power to Congress. Apparently the framers agreed that the nation's legislature should control these lesser uses of force." (127) In examining the Convention record and original understanding at the time, Lofgren argues that the best analysis of the provision was that it served "as a kind of shorthand for vesting in Congress the power of general reprisal outside the context of declared war. For someone in the late 1780's, this interpretation ... would have given the phrase meaning and would have been consistent with history and the treatises." (128) Consequently, Lofgren concludes, this interpretation in turn would have given increased plausibility to the view that Congress possessed whatever war-commencing power was not covered by the phrase 'to declare war.'" (129)

      Early case law, too, suggests a significant role for Congress in so-called "imperfect wars." In Bus v. Tingy, (130) Tulbot v. Seeman, (131) and Little v. Barreme, (132) the earliest cases dealing with the matter, the Court asserted Congress's role in authorizing imperfect as well as perfect war. (133)

      Significantly, the same treatises that informed the Founders' grant of power to Congress to determine the confines of imperfect war also recognized that imperfect war could lead to perfect war. (134) This understanding helps explain why the Founders seemingly granted to Congress, in Lofgren's words, "whatever war-commencing power was not covered by the phrase to declare war.'" (135) If the Founders designed a regime in which Congress would decide when the country was to go to war but limited that role to the declaration of "perfect" wars, the regime would be necessarily incomplete; only a regime that also accounted for a congressional role in authorizing "imperfect" wars would truly guard Congress's role as the war-commencing institution, as these imperfect wars might be expected to lead to perfect wars. The decision to reserve this power to Congress demonstrates just how sweepingly the Constitution guarded the legislature's...

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