The Declare War Clause, Part 2: Historical Background, Drafting, and Ratification

The Declare War Clause, Part 2: Historical Background, Drafting, and Ratification

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The Declare War Clause, Part 2: Historical Background, Drafting, and Ratification

September 30, 2024

This Legal Sidebar is the second part of an eight-part series that discusses the Declare War Clause in Article I, Section 8, Clause 11 of the Constitution, which grants Congress the power “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water[.]” The power to take the nation to war is a central element of the Constitution’s scheme of war powers, but interpretation of the Declare War Clause is complex and evolving. This Sidebar series discusses the Supreme Court’s jurisprudence related to declarations of war and highlights interbranch practices that illuminate the executive and legislative branches’ sometimes differing interpretations of the clause. Additional information on Congress’s war powers and the President’s powers as Commander-in-Chief can be found in the Constitution Annotated.

War Powers Before the Constitution

Congress’s authority to declare war has its antecedents in Britain and in Colonial America. Under the British system of government, most essential war powers were lodged in a single individual—the Monarch. The power of “making war or peace” was the sole prerogative of the Crown, and the Monarch was the first in command of British military forces. Great Britain also traditionally allowed its monarchs to raise and support armies; however, by the end of the 17th century, Parliament controlled appropriations of funds for the military, and the Crown agreed not to maintain a standing army during peacetime without parliamentary consent.

In pre-revolutionary America, many colonial charters granted certain war powers, such as the power to defend the colony from invasion or armed attack, to colonial governments. When the American independence movement emerged in the 1770s, colonists formed militias at the local and state level, and revolutionary state assemblies passed laws organizing the militias and mandating service for some segments of the population. During this period, the Second Continental Congress coordinated the militias at the national level. The Second Continental Congress appointed George Washington Commander-in- Chief and called upon Americans to take up arms and organize themselves into militia units. The Second Continental Congress also adopted a set of declarations and petitions to the British Crown culminating in the Declaration of Independence—a document that shares elements in common with 18th century

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declarations of war, and which some scholars describe as the equivalent of America’s first written declaration of war.

By November 1777, the Continental Congress had adopted the Articles of Confederation, which expressly allocated war-making authorities within the United States. Under the Articles of Confederation, all of the national government’s powers were lodged in a unicameral legislative body, which became known as the Confederation Congress. The Articles of Confederation did not use the phrase “declare war,” and instead gave the Confederation Congress the exclusive “right and power of determining on peace and war.” The Articles also denied states the power to “engage” in war unless the Confederation Congress provided consent through a supermajority vote of 9 of 13 states. There were two exceptions to this requirement: a state could engage in war without congressional consent if it were “actually invaded by enemies” or if it learned of a planned invasion by a Native American tribe that presented a danger “so imminent as not to admit of a delay” until the Confederation Congress assembled.

Early Debates in the Constitutional Convention

Concerns that the national government lacked sufficient power to protect the United States’ national security was one of the primary reasons state assemblies called for the Constitutional Convention in Philadelphia in 1787. As the delegates to the Convention worked out “an entire change in the first principles” of the Articles of Confederation, some elements of the governments’ new suite of war powers, such as the power to raise and support armies, were contentious and heavily debated. The Declare War Clause, on the other hand, was less controversial. The Articles of Confederation already gave the national government the “power of determining on peace and war,” and the Constitution’s Framers did not question whether the new central government they were creating should continue to possess the authority to determine when the United States goes to war.

Although the allocation of the war-making power to the federal government was not contentious, debate did arise at the Constitutional Convention over how to phrase the relevant text and integrate this power in the new constitutional system. The Articles of Confederation created one government body, but the Constitution divided the federal government’s power between three distinct branches. This new separation of powers quickly led to questions over which branch of government should receive the Confederation Congress’s power to “determin[e]” war and peace.

Early in the Constitutional Convention, the plan for a new form of government submitted by Edmund Randolph on behalf of Virginia became the focal point of debate. The “Virginia Plan,” as it would come to be known, did not address the power to initiate war directly. Instead, it provided that the Confederation Congress’s “Legislative Rights” would be given to a “National Legislature,” and the “Executive rights” that the Confederation Congress exercised would be transferred to a newly created “National Executive.” Under the Virginia Plan, the executive would also possess “a general authority to execute the National laws.”

Several delegates expressed reservations about how war powers would fit into this division of authority. Charles Pinckney of South Carolina stated that, although he supported creating a vigorous chief executive, he feared the Virginia Plan might give the Executive the Confederation Congress’s power over “peace [and] war.” To Pinckney, such an assignment “would render the Executive a Monarch, of the worst kind . . . an elect[ed] one.” John Rutledge, also from South Carolina, echoed these concerns, observing that, while he was “for vesting the Executive power in a single person,” he did not favor “giving him the power of war and peace.” In early June 1787, the Convention debated whether the Confederation Congress’s powers over war and peace were legislative or executive in nature, but it did not reach a consensus.

After William Paterson of New Jersey and Alexander Hamilton of New York presented alternative plans of government, a five-person Committee of Detail was formed to translate agreed-upon resolutions and

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various proposals considered at the Convention into a draft constitution. The draft that emerged from the Committee of Detail set the stage for a renewed debate on how to assign and structure the power over war and peace.

The Transition from “Make War” to “Declare War”

In its report containing the first full draft of the Constitution considered at the Constitutional Convention, the Committee of Detail included a provision assigning to Congress the power “To make war[.]” The assignment of this power to the legislative branch and the clause’s phrasing, which differed from its predecessor under the Articles of Confederation, prompted debate among the delegates.

Charles Pinckney made the first remarks when the Convention turned its attention to the clause. He objected to including the House of Representatives in the power to “make war” because he believed it to be too large a body for the quick deliberations necessary for the task. The Senate alone would be the better option, Pinckney maintained, because it would be “more acquainted with foreign affairs, and most capable of proper resolutions.” Pinckney also argued that, because both small and large states face existential risks from war, the composition of the Senate, with its equal representation of the states, made it a more appropriate body. Pierce Butler of South Carolina voiced an objection to either chamber of Congress being assigned the power to make war. Butler advocated instead for “vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it.”

After Butler’s comment, James Madison of Virginia and Elbridge Gerry of Massachusetts moved to change the clause to give Congress the power to “declare” war rather than “make” war. According to Madison’s notes, the change was intended to “leav[e] to the Executive the power to repel sudden attacks.” Roger Sherman of Connecticut spoke in opposition to the motion, contending that substituting the term “declare” would narrow congressional authority too significantly. Sherman argued that the original term “make” better captured the formulation in which the President was empowered to repel attacks but could not “commence war” on his own.

At this point, Elbridge Gerry objected to the earlier-raised proposition that the clause be shifted to a presidential power. Gerry remarked that he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” Oliver Ellsworth of Connecticut spoke next and highlighted the distinction between “making war, and making peace.” To Ellsworth, it should be “more easy to get out of war, than into it.” George Mason of Virginia then responded to the several lines of argument that he been raised in response to the motion to substitute “declare” for “make.” Mason maintained that the President could not be trusted with “the power of war,” and that the Senate was “not so constructed as to be entitled to it.” Mason endorsed Ellsworth’s view that the Constitution should facilitate the process of making peace while making it more difficult to engage in war, and he concluded by stating that he preferred the phrase “declare war” over “make war.”

The delegates then voted on the motion to substitute “declare” for “make.” Two rounds of votes were held, and, although the records of the Constitutional Convention provide inconsistent accounts of the first round of voting, the motion passed on the second vote with eight states in favor and one against.

Debating the Power to End Wars and Make Peace

The delegates to the Constitutional Convention also debated which branch of government should be empowered to end wars and make peace. The same day that the Constitutional Convention voted to substitute “declare” for “make,” the Convention held two additional votes on the Declare War Clause. Charles Pinckney moved to strike the Declare War Clause entirely, but his motion was rejected without a roll call of votes. Pierce Butler then moved to add “and peace” after “war” in an attempt to “give the

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Legislature power of peace, as they were to have that of war.” Butler’s proposal would have brought the Declare War Clause more in line with the Articles of Confederation, which allocated the power to determine “peace and war” in the same clause.

Alluding to the possibility that wars would be ended through treaties that were approved by the Senate but not considered in the House of Representatives, Elbridge Gerry seconded Butler’s motion. Gerry argued that the House should be included in peacemaking because the Senate was more likely to succumb to foreign corruption than the full Congress and a small number of Senators might cede part of United States territory in a peace treaty. The Constitutional Convention, however, unanimously rejected the motion to insert a peacemaking power in the Declare War Clause.

The Framers revisited the peacemaking issue later in the Convention when Madison put forward two proposals designed to make it easier to enter into treaties of peace. While this debate centered on Article II’s Treaty Clause, it also prompted a broader discussion of separation of powers over war and peace. For example, Madison sought to remove the President from the process for making peace treaties because he believed the President “would necessarily derive so much power and importance from a state of war that he might be tempted . . . to impede a treaty of peace.” Pierce Butler agreed and argued that removing the President from the peacemaking process would guard against corruption and excessive ambition in the presidency.

Nathanial Gorham of Massachusetts, by contrast, believed it unnecessary to exclude the President because Congress already controlled the power of the purse, and therefore the “means of carrying on war would not be in the hands of the President, but of the Legislature.” Gouverneur Morris, a Pennsylvania delegate, also alluded to the possibility that Congress might end wars by withholding appropriations, but he described this prospect as a more “disagreeable mode” of concluding conflicts compared to peace treaties. Ultimately, neither of Madison’s proposals to alter the process for concluding peace treaties was successful, and the Framers did not allocate an express peacemaking power.

The absence of a peacemaking clause has led to some debate over the proper constitutional method for terminating armed conflicts. Some argue that the Framers believed wars could only be concluded through peace treaties, but the Supreme Court stated in a 1948 case that a “‘state of war’ may be terminated by treaty or legislation or Presidential proclamation.” The Supreme Court has also reasoned that termination of a military conflict is a “political act,” and it historically has declined to exercise judicial review of the political branches’ determinations of when a conflict has official ended.

The Declare War Clause in the State Ratification Debates

During the debate over ratification of the Constitution, the states considered whether to give their assent to a new system of government in which the United States’ suite of war powers was divided between the legislative and executive branches, and Congress’s power to “declare War” had replaced its “right of determining on peace and war” under the Articles of Confederation. Although many delegates to the state ratification conventions raised concerns about the Constitution’s broader centralization of military powers, the Declare War Clause’s meaning was not often discussed. Instead, opponents of the Constitution, who became known as Anti-Federalists, frequently criticized the breadth of the federal government’s powers to carry out and sustain wars using its powers over standing armies, the militia, taxation, and other means, but they did not often attack its ability to declare them.

A common Anti-Federalist critique was that, by giving a single branch of government the power to declare war and raise funds to support it, the Constitution combined the “sword” and the “purse” in a single branch, which made it too easy for the national government to pursue ill-guided wars that did not benefit the general populace. The British model of government provided a better system of checks and balances, Anti-Federalists argued, by giving the Monarch the power to declare war and Parliament the power to choose whether to fund the Crown’s military campaigns.

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Supporters of the Constitution, known as Federalists, responded that they had sufficiently separated the sword from the purse by making the President “Commander in Chief of the Army and Navy” while giving Congress control over war funding. Federalists argued that the dangers of the British system did not apply to the Constitution because a politically accountable body of representatives in Congress, rather than an unelected monarch, would wield the power to declare war. When Anti-Federalists suggested that the powers over the sword and the purse should be retained by the states or the general populace, Federalists responded that the United States would lose an essential element of its sovereignty and be unable to defend itself if deprived of these core war powers.

While much of the debate addressed the Declare War Clause’s place in the Constitution’s broader scheme of war powers, Anti-Federalists occasionally criticized the text of clause itself. The pseudonymous Anti- Federalist author Cincinnatus observed that the Declare War Clause placed no limit on the type of wars that Congress could declare and did not prevent the United States from attempting to conquer other nations. Federalists, including Alexander Hamilton and James Madison, countered this line of reasoning by contending that limitations on congressional war powers would be unwise because it was impossible to predict what types of military action might be necessary to defend the United States and protect its interests in the future.

In the New York ratifying convention, Anti-Federalists suggested that Congress was too small a body to be trusted with the power to declare war and that a small number of elected officials could be induced to declare war through bribery or corruption. The Federalist (and later Chief Justice of the Supreme Court) John Jay responded that the Constitution would decrease risks of corruption because an even smaller group of individuals already had the power to decide upon war and peace under the Articles of Confederation. The New York Convention was sufficiently concerned about the issue that it proposed to amend the Constitution to require a two-thirds supermajority vote in both chambers of Congress before declaring war. Of the 124 amendments state ratifying conventions proposed to the Constitution, this was the only proposal to amend the Declare War Clause, but it was not adopted at the national level.

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Author Information

Steve P. Mulligan Attorney-Adviser

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