84 CALR 167
(Cite as: 84 Calif. L. Rev. 167)
California Law Review
March, 1996
*167 THE CONTINUATION OF POLITICS BY OTHER MEANS: THE ORIGINAL UNDERSTANDING
OF WAR POWERS
John C. Yoo
Copyright © 1996 by the California Law Review, Inc.; John C. Yoo
TABLE OF CONTENTS
Introduction ........................................................ 170
I. War Powers: Allocation, Practice, and Criticism ..................... 175
A. The Constitutional Text ......................................... 175
B. The Constitution in Practice .................................... 176
1. Congress and the President .................................... 176
2. The Courts and the War Powers ................................. 182
3. The Persian Gulf War .......................................... 186
C. The Academic Critique: The President Against the Professors ..... 188
1. Original Intent Betrayed ...................................... 189
2. The Separation of Powers Betrayed ............................. 192
3. Judicial Abdication ........................................... 194
II. The British Legacy .................................................. 196
A. English Constitutionalism and War ............................... 197
1. The Allocation of War Powers in the English Constitution and
Eighteenth-Century Political Thought .............................. 198
2. The Declare-War Power in the English Constitution and
Eighteenth-Century Political Thought .............................. 204
3. The Lessons of British History: The Sinews of War ............. 208
4. The Lessons of British History: The Declaration of War ........ 214
5. Summary of the British Model .................................. 217
III. War and Early America ............................................... 218
A. Colonial Government ............................................. 219
B. The War Powers in the New State Constitutions ................... 221
1. Early Efforts to Rein in Executive Power ...................... 222
2. Executive Power Reborn: New York, Massachusetts, and New
Hampshire ......................................................... 228
3. A Path Not Taken .............................................. 234
C. The Articles of Confederation and the Prelude to
Constitutionalism ................................................. 235
IV. The New Constitution ................................................ 241
A. The Constitutional Text in Context .............................. 242
1. The Declare War Clause ........................................ 242
2. Other Constitutional War Powers Provisions .................... 250
a. Other Formal Congressional Powers .......................... 250
b. The President's Powers ..................................... 252
B. The Constitutional Convention and the Allocation of War Powers .. 256
1. Early Proposals: The Virginia Plan and Beyond ................. 257
2. Making and Declaring War: The Debate of August 17 ............. 260
3. Peace and the Presidency ...................................... 265
C. The State Ratification Debates .................................. 269
1. The Antifederalist Attack ..................................... 270
2. The Federalist Responses ...................................... 276
3. The Battle Joined: Ratification Arguments and the Centrality
of Funding ........................................................ 279
4. War Powers and Judicial Abstention ............................ 287
5. The New Constitution in Practice .............................. 290
Conclusions ......................................................... 295
A. Modern War Revisited ............................................ 296
B. War and Republicanism ........................................... 302
*170 In recent years, legal commentators have sharply criticized executive initiative in the war-making process. This Article examines the historical and legal background of the war powers in the Anglo-American world of the seventeenth and eighteenth centuries. The author argues that the war powers framework created by the Framers differs sharply from that envisioned by modern scholars. After exploring the Constitutional text, the political and legal context within which the Framers lived, experiences with British political history and state constitutions, and the arguments made during the ratification debates, the author concludes that the Framers created a framework designed to encourage presidential initiative in war. Congress was given a role in war-making decisions not by the Declare War Clause, but by its powers over funding and impeachment. The courts were to have no role at all. Professor Yoo suggests that the Constitution did not inadvertently exclude the judiciary. Instead, the Framers understood the Constitution as giving the two political branches weapons to struggle for influence over the war-making process-- rendering judicial supervision unnecessary. The Article concludes that because the Framers failed to specify an exact relationship between the President and Congress in the area of war, precise procedures may evolve over time within the constitutional framework.
INTRODUCTION
Since the end of the Cold War, our nation has turned to the use of force in its foreign relations more frequently than some might have hoped. The increase in military interventions--in Lebanon, Grenada, the Persian Gulf, Panama, Kuwait, Somalia, Haiti, and now Bosnia--has been accompanied by increasing academic criticism of the way in which the federal government makes war. [FN1] This criticism, which represents a *171 diversity of political and intellectual positions, is striking both for its uniformity of opinion and its harshness of tone. [FN2] Critics of the current war powers landscape accuse Presidents from Harry Truman to George Bush of waging "unconstitutional" wars, portray Congress as shirking its constitutional responsibilities, and point to the "powerful whiff of hypocrisy" found in the judiciary's hands-off attitude. [FN3]
According to these scholars, the post-World War II era has witnessed nothing less than "the disappearance of the separation of powers, the system of checks and balances, as it applies to decisions to go to war." [FN4] Arguing that the Framers intended Congress to have exclusive control over the decision to go to war, they interpret the Declare War Clause [FN5] as a separation of powers provision that not only empowers Congress, but also limits executive abilities to make war. [FN6] Under this approach, in order to wage war, the President must receive a declaration of war or its "functional equivalent" from Congress. Should the President overstep these constitutional boundaries, the federal courts must intervene to right the balance by declaring the war unconstitutional or even by enjoining the President's actions.
*172 Historical practice, however, has contrasted starkly with these constitutional arguments. Congress has issued a declaration of war only five times in its history. The post-1945 era has borne witness to a litany of undeclared wars and an even longer list of less significant uses of the military. The President has initiated conflict, often without any formal signs of congressional approval, and certainly without a declaration of war. [FN7] With few exceptions, the federal courts either have refused to hear constitutional challenges to these wars, [FN8] or have upheld the propriety of the executive action. [FN9]
This divergence of academic theory and political practice has led to an unusual arrangement of ideology and constitutional interpretation. "Liberals" who opposed unilateral executive authority have turned to the Framers' intent for support, arguing for a Constitution with a meaning fixed by the history of its drafting. [FN10] "Conservatives" who favored enhanced presidential war powers have invoked the lessons of the recent past and the nation's post- ratification history to buttress a vision of a Constitution that has adapted to a dangerous world. [FN11]
This Article argues, in a sense, that both sides are wrong. It agrees with the methodology employed by the critics of executive dominance over war powers but disagrees with their conclusions. When interpreting the text of the Constitution, we should seek to determine the meaning of its terms as understood by those who adopted its provisions. As the majority of scholars in the war powers area recognize, this is the best starting point to interpret the Constitution. As a written document, the Constitution's meaning does not change from the meaning it held for its drafters. Otherwise the Constitution's meaning would be as inconstant as, to paraphrase Horace, the times, or the mores. [FN12]
Seeking the original understanding of the war powers requires us to turn to untapped sources. Americans of the late eighteenth century would have defined terms in the Constitution--such as "Declare War" and "Commander in Chief"--in the context of how Great Britain, the colonies, and the states had gone to war in the recent past. Further, the *173 Framers would have understood the terms of the proposed federal Constitution by comparing them to the most significant public legal documents of the day: the state constitutions. As we will see, this was a common approach to interpreting the Constitution during the ratification debates. Finally, we will examine the records of the Constitutional Convention, the state ratifying conventions, and the public debates waged in the press, not for signs of legislative intent per se, but for indications of how Americans of the late eighteenth century understood the legal framework of war powers.
Most works have focused on the short discussion of the Declare War Clause at the Constitutional Convention and a few selected comments from The Federalist. [FN13] Others rely heavily on post-ratification evidence from the first quarter-century of the nation's youth to fill in the Constitution's perceived ambiguities. [FN14] But these approaches fail to recognize that the Framers neither acted in a historical vacuum, nor wrote on a constitutional tabula rasa. [FN15] Nor can we take as dispositive private comments that were not made known to the state ratifying conventions or to the people. This Article will examine the ratifying debates, not to show that the Framers held unchanging, clear positions, but to show that the intellectual give-and-take of the public exchanges on both sides began from a shared understanding of the way war powers had functioned in the Anglo-American past. [FN16] Finding this shared understanding, construed in relation to its proper legal context, is the best way to interpret the Constitution's allocation of war powers.
This Article focuses its analysis of the separation of powers on the history of British, colonial, and early state politics leading up to the ratification of the Constitution. It concludes that when the Framers adopted the Constitution, they were reacting as much as they were innovating, tinkering with existing mechanisms as much as they were breaking with tradition. The historical evidence reveals a Constitution that does not *174 prescribe one exclusive method for going to war. A war may be constitutional, even if no declaration of war has issued or if the President has acted unilaterally, so long as one branch has not usurped the textually enumerated power of another. The Constitution establishes a war-making process that can vary with the circumstances and with the relative political power of the President and Congress. It assumes that the political branches will exercise their constitutional powers sometimes co-operatively and sometimes antagonistically. Moreover, the Constitution did not inadvertently allocate all war powers to the two political branches; rather, the nature of the mutable process it created made judicial supervision unworkable and undesirable.
The Framers established a system which was designed to encourage presidential initiative in war, but which granted Congress an ultimate check on executive actions. Congress could express its opposition to executive war decisions only by exercising its powers over funding and impeachment. The Framers established this system because they were not excessively worried by the prospect of unilateral executive action. The President was seen as the protector and representative of the People. In contrast, the Framers expressed a deep concern regarding the damage that Congress, and the interest groups that could dominate it, might cause in the delicate areas of war and foreign policy.
Part I of this Article establishes the necessary background for our study. Section A sets forth the constitutional text that governs the allocation of war powers. Section B describes the manner in which the three branches have exercised these powers throughout our nation's history. Section C reviews the contemporary scholarship on the war powers. Part II examines the Anglo-American understanding of war and of the separation of powers during the seventeenth and eighteenth centuries. Part III reviews how these ideas were transplanted to American soil. Section A describes the colonists' experience, and Section B discusses the revolutionaries' efforts in designing their state constitutions. Section C reviews the allocation of war powers in the Articles of Confederation. Part IV focuses on the events and ideas surrounding the drafting and ratification of the Constitution. Section A places the text of the Constitution's war provisions in the political and legal context within which eighteenth-century Americans would have understood them. Section B turns to the Constitutional Convention and links the debates over the Declare War Clause with the discussions concerning peacemaking. Section C discusses the arguments made during the ratification debates, both public and private, and shows how the Federalists invoked Congress' authority over appropriations to answer Antifederalist claims that the President was a king-in-the-making.
*175 The Conclusion returns to the debate between liberals and conservatives over the war powers. This Article's analysis ultimately shows why both the original understanding and subsequent practice are valuable for understanding our constitutional allocation of war powers. Original understanding analysis illuminates the general framework that the Framers erected and what their expectations were. Because the Constitution fails to specify an exact relationship between the President and Congress in the area of war, examination of post-ratification practice confirms our understanding of the allocation of war powers between the branches. Ultimately, however, it is the constitutional framework that endures, while the exact processes of going to war within that framework may change over time.
I
WAR POWERS: ALLOCATION, PRACTICE, AND CRITICISM
This Part describes the current war powers debate. Section A reviews the relevant provisions of the Constitution. Section B examines how, in the absence of clear constitutional commands, the executive and legislative branches have struggled for control over war during the past two centuries, with the post- World War II era witnessing increased presidential dominance countered by half- hearted congressional attempts at participation. Section B also examines how the federal courts have declined to intervene into inter-branch conflicts over presidential war-making. Section C examines the scholarly critique of executive dominance in war and the proposals for judicial solutions. Later Parts of this Article make clear that both this critique and the proposed solutions are incompatible with the original understanding of war powers.
A. The Constitutional Text
As with all constitutional questions, an analysis of war powers should begin with the constitutional text, which allocates war-making authority not to a single branch of government, but to both the executive and legislative departments. Article I gives Congress the power to "declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water." [FN17] Congress also has the authority to "raise and support Armies," [FN18] to "provide and maintain a Navy," [FN19] to "make Rules for the Government and Regulation of the land and naval Forces," [FN20] to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel *176 Invasions," [FN21] and to "provide for organizing, arming, and disciplining, the Militia." [FN22] Congress also possesses other powers related to foreign affairs, including the power to regulate international commerce, [FN23] to establish immigration rules, [FN24] to pass laws punishing piracy and felonies committed on the high seas, [FN25] and to give its advice and consent to the appointment of ambassadors and the making of treaties. [FN26]
Compared to this impressive list, the powers of the President at first glance appear somewhat paltry. Article II states that "[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." [FN27] The President's other enumerated powers include the authority to receive ambassadors [FN28] and, with the advice and consent of the Senate, to make treaties and appoint ambassadors. [FN29] Finally, Article II vests "the executive Power" [FN30] and the duty to execute the laws in the President. [FN31]
The judiciary's powers are limited in the area of war powers, although the federal courts do have jurisdiction over cases that may relate to foreign affairs. Article III vests the judicial power of the United States in the federal courts, [FN32] and gives them jurisdiction over cases arising under the Constitution, treaties, and other laws of the United States. [FN33] Other grants of jurisdiction include the authority to hear cases involving ambassadors and other foreign officials, maritime or admiralty law, or treason against the United States, and to hear diversity suits involving foreign states or citizens. [FN34] No provision explicitly authorizes the federal courts to intervene directly in war powers questions.
B. The Constitution in Practice
1. Congress and the President
The Constitution's division of authority establishes a framework that has evolved into the operational system of war powers we have today. The experiences of World Wars I and II might lead one to assume *177 that because Congress declared war in those two wars, the Constitution requires a declaration to trigger the President's powers as Commander in Chief. [FN35] However, formal declarations of war have constituted the exception rather than the rule in American history. The United States has declared war only five times: during the War of 1812, the Mexican-American War of 1848, the Spanish- American War of 1898, and World Wars I (1914) and II (1941). Yet, the United States has committed military forces into hostilities abroad at least 125 times in the Constitution's 207-year history. [FN36] In some cases, such as the Quasi-War with France in 1798, the Vietnam War, and the Persian Gulf War, Congress passed statutes or resolutions that authorized the President to engage in military operations, but did not label them declarations of war. [FN37] In other cases, most notably in the Korean War, Congress either never formally approved the intervention or chose only to appropriate funds for the President's actions. [FN38]
Although declarations of war have been rare, Congress has never been wholly absent from the war powers equation. For much of the nineteenth and early twentieth centuries, Congress assented to presidential uses of force abroad. [FN39] Interventions undertaken without congressional approval were, for the most part, small-scale actions to protect American property, citizens, or honor abroad that had little risk of significant combat. [FN40] Larger-scale actions required the President to seek congressional approval for expanded military forces. [FN41] Given this relative *178 inter-branch harmony, it is not surprising that the judiciary was not an active participant in war powers.
With the establishment of a large peacetime military force in the twentieth century, the prospect of unilateral presidential war-making appeared, concerns about congressional control emerged, and questions about the role of the judiciary arose. The Cold War period provoked almost continual struggles between the two branches over war powers. [FN42] The first dispute accompanied the Cold War's first major conflict, which began when North Korean forces invaded South Korea on June 24, 1950. Three days later, the United Nations Security Council issued a resolution authorizing U.N. members to use force in resisting the invasion. [FN43] President Truman immediately committed American military forces without seeking congressional approval, even though substantial support existed in Congress for the President's unilateral decision. [FN44] Secretary of State Dean Acheson and Senate Majority Leader Scott Lucas both convinced Truman to rely on his Commander-in-Chief powers to support his actions, which led the President to refrain from seeking the congressional authorization he could have obtained easily. But while congressional authorization in the form of a resolution or declaration of war was not sought, Congress did pass several appropriation bills and draft extensions to support the war. [FN45]
Only as the war soured at home and American commitments overseas expanded in response to the Soviet threat did some in Congress begin to question the President's authority. In that context the Truman administration began to claim that the President had the independent constitutional authority to commit troops anywhere in the world, with or without congressional authorization. [FN46] When the war first began, the State Department had defended the intervention as a United Nations "police action" authorized by the Security Council and by the President's traditional authority to send forces abroad to protect American interests and foreign policy. [FN47] As Congress began to debate Truman's disposition of forces in both Korea and Europe in 1951, the Truman administration articulated a more forceful position. According to the administration, the President's independent, broad authority included the power to use the military to protect American interests *179 abroad and to execute treaty obligations, such as those imposed by the United Nations and the North Atlantic Treaty Alliance. [FN48]
America's second major Cold War military intervention, Vietnam, stood on perhaps firmer constitutional footing. [FN49] Unlike the response to the surprise attack in Korea, large-scale American involvement in Vietnam began gradually. President Kennedy increased American military personnel in Vietnam from 685 when he entered office to approximately 16,000 by the time of his assassination. [FN50] Four days after taking office, President Johnson reaffirmed American policy to help the South Vietnamese government resist the stepped-up Vietcong offensive. National Security Action Memorandum 273 declared that it was "the central objective of the United States" to assist the South Vietnamese "to win their contest against the externally directed and supported Communist conspiracy." [FN51] Another executive memorandum, drafted the following spring, stressed the necessity for American support and covert action to prevent a domino effect in Asia. [FN52]
Formal congressional approval for American military involvement finally came in the form of the much-maligned Tonkin Gulf Resolution. After two apparent North Vietnamese attacks on American destroyers in early August 1964, President Johnson "seized the opportunity" to seek congressional authorization for any actions he might take in support of South Vietnam. [FN53] Congress responded by passing the Tonkin Gulf Resolution, which gave the President broad authorization in the Southeast Asian theater "to take all necessary steps, including the use of armed force, to assist any member or protocol state of [the Southeast Asia Treaty Organization (SEATO)] requesting assistance in defense of its freedom." [FN54] Notwithstanding the Tonkin Gulf Resolution, *180 the State Department echoed the Truman administration's earlier position that the President could order armed forces abroad unilaterally, based on his Commander-in-Chief powers, historical practice, and the United States' obligations under the SEATO treaty. [FN55]
A period of presidential weakness in the aftermath of the Vietnam War and Watergate prompted congressional efforts to assert control over the war- making process. In 1973, Congress passed the War Powers Resolution over President Nixon's veto to
fulfill the intent of the framers . . . and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations. [FN56]
The Resolution further declares Congress' belief that the President can exercise his Commander-in-Chief powers "only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." [FN57] The Resolution attempts to prevent the President from sending the American military into combat without congressional approval, except in emergency situations.
Congress included three mechanisms in the Resolution designed to assure congressional participation in the war-making process. First, "[t]he President in every possible instance shall consult with Congress" before introducing the armed forces into hostilities, whether imminent or actual. [FN58] Second, the President must report to Congress within forty-eight hours of sending the military into (a) hostilities or imminent hostilities, (b) into the territory of another nation equipped for combat, or (c) in numbers which substantially increase the size of the American forces stationed in a foreign nation. [FN59] This report must explain why the President sent the troops, describe the constitutional and legislative *181 authority for the action, and estimate the scope and duration of the intervention. [FN60]
The reporting requirement then triggers the third requirement: the controversial sixty-day clock. Once the President has reported military intervention to Congress, the Resolution requires the President to terminate the intervention within sixty days. [FN61] Three events can forestall removal of American forces: (1) a declaration of war or specific congressional authorization; (2) congressional extension of the sixty-day period; or (3) congressional inability to meet due to armed attack on the United States. [FN62] The President may also extend the sixty-day period once for thirty days if he certifies that the additional time is necessary to permit the safe withdrawal of American armed forces. [FN63] Finally, the Resolution permits Congress to terminate an unauthorized presidential use of military force at any time by concurrent resolution. [FN64]
Most commentators would agree that the Resolution has not proven to be a resounding success. No President has ever acknowledged its constitutionality, and no President has ever formally complied with its terms. The high watermark of presidential recognition of the Resolution was President Ford's messages to Congress in which he took "note" of the Resolution when he sent military forces to evacuate Americans from South Vietnam and Cambodia and to rescue American sailors in the S.S. Mayaguez incident. [FN65] President Carter did not consult with Congress before attempting the doomed rescue attempt of the Iranian hostages, although he did send a report to Congress concerning the incident that was "consistent" with the Resolution's provisions. [FN66] President Reagan refused to comply formally with the Resolution when he ordered the use of American military force in Lebanon, Grenada, Libya, and the Persian Gulf, although he did report the deployments in messages that were "consistent with the Resolution." [FN67] In both the *182 Panama invasion and Operation Desert Storm in the Persian Gulf, President Bush sent reports to Congress which he noted were "consistent with" the War Powers Resolution, but he did not acknowledge that he had to consult with Congress or that he had to remove the troops in sixty days. [FN68] And, participating in the NATO interventions in Bosnia, President Clinton notified Congress of military action in messages that used similar language. [FN69]
Despite presidential noncompliance, Congress has never sought to enforce the Resolution's terms either by using section 5's concurrent resolution mechanism or by removing funding for the military action. Congressional inaction has led challengers of the president's use of military force to seek judicial declarations that the President has violated the Constitution.
2. The Courts and the War Powers
Although individual members of Congress have criticized presidential actions in these various wars, Congress as a body has never sought to block executive war-making in the courts. But individuals who have been adversely affected by these military interventions have challenged presidential action by seeking redress in the courts. These actions have met with little success, because the Supreme Court has deferred to the conduct of international relations by the other branches, particularly the President. By relying on doctrines including political questions, ripeness, mootness, and standing, and by refusing to grant a writ of certiorari, the Court has studiously avoided becoming embroiled in war powers disputes. [FN70]
From the earliest days of the Republic, the Court has recognized that the other branches must permit the President some amount of discretion in the conduct of foreign relations. When Chief Justice John Marshall was a Congressman, he declared that the President was "the sole organ of the nation in its external relations." [FN71] Later, when he *183 wrote Marbury v. Madison, Marshall made clear that there were "[q]uestions in their nature political" which were entrusted to the executive branch and removed from judicial review. [FN72] In discussing whether the Jefferson administration could withhold Marbury's commission, Marshall wrote:
By the constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. . . . The subjects are political . . . and being entrusted to the executive, the decision of the executive is conclusive.
. . . .
. . . Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court. [FN73]
Even when faced with the modern wars of the twentieth century, the Court has continued to recognize that foreign affairs questions often are beyond judicial competence. In 1918, the Court in Oetjen v. Central Leather Co. declared, "The conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative--'the political'--Departments of the Government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision." [FN74] The twentieth-century Court also has held that the political question doctrine applies to the determination of when war has ended [FN75] and whether the United States has recognized a foreign government. [FN76]
The foremost statement of the convergence of judicial deference and executive discretion in foreign affairs came in Justice Sutherland's opinion in United States v. Curtiss-Wright Export Corp:
Not only . . . is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation.
. . . .
It is important to bear in mind that we are here dealing . . . [with] the very delicate, plenary and exclusive power of *184 the President as the sole organ of the federal government in the field of international relations . . . . [FN77]
Baker v. Carr expresses the modern version of the political question doctrine. [FN78] Although not a foreign affairs case, several of Baker's justiciability factors apply with vigor to war powers and foreign affairs issues. Although "it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance," [FN79] Justice Brennan commented:
Not only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature; but many such questions uniquely demand single-voiced statement of the Government's views. [FN80]
Baker's broad definition of the political question doctrine has permitted enhanced presidential powers in foreign affairs, primarily because the "single- voiced statement of the Government's views" has come almost exclusively from the executive branch. Over time, Chief Justice Marshall's original doctrine of presidential discretion in certain political areas involving the "nation, not individual rights," [FN81] has neatly dovetailed with the President's growing control over foreign affairs. [FN82]
Given these broad doctrines, it should come as no surprise that the Supreme Court has avoided challenges to the use of the war power. In the Korean and Vietnam Wars, for example, the Court regularly refused to grant a writ of certiorari for cases brought by draftees challenging the wars' constitutionality. [FN83] Several times, Justice Douglas dissented from the denial of certiorari on the ground "that the constitutional questions raised by conscription for a presidential war are both substantial and *185 justiciable," but to no avail. [FN84] Moreover, lower courts faced with Vietnam War suits regularly dismissed them as presenting political questions. [FN85] For example, determining that the President and Congress had made a joint decision to wage the war, the Second Circuit held that "the constitutional propriety of the means by which Congress has chosen to ratify and approve [the Vietnam War] is a political question." [FN86] Two years later the District of Columbia Circuit agreed that whether the form of congressional approval for a war is constitutionally sufficient was a political question. [FN87] Furthermore, it held that whether President Nixon had complied with congressional desires to bring the war to an end was also non-justiciable. [FN88] The D.C. Circuit abstained from decision not only because of difficulties in discovering judicial standards, but also out of deference to the executive:
Even if the necessary facts were to be laid before it, a court would not substitute its judgment for that of the President, who has an unusually wide measure of discretion in this area, and who should not be judicially condemned except in a case of clear abuse amounting to bad faith. Otherwise a court would be ignoring the delicacies of diplomatic negotiation, the inevitable bargaining for the best solution of an international conflict, and the scope which in foreign affairs must be allowed to the President if this country is to play a responsible role in the council of the nations. [FN89]
The judicial tradition of deference has continued during the post-Vietnam era, even in the context of the War Powers Resolution. [FN90] When various plaintiffs challenged the Reagan administration's use of the American military in Central America in 1982 and the Persian Gulf in 1987, the D.C. Circuit dismissed the suits as presenting non-justiciable political questions. [FN91] When twenty-nine Members of Congress sued President Reagan for allegedly sending illegal aid to El Salvador in violation of the War Powers Resolution, the same court held that whether *186 the President had to comply with the Resolution's terms presented a non-justiciable political question. [FN92]
3. The Persian Gulf War
The current state of the war powers doctrine is probably best summarized by examining the legal events surrounding the Persian Gulf War. On August 2, 1990, Iraqi forces invaded Kuwait. President Bush responded by sending about 230,000 American troops to the Gulf, and on November 8 he sent another 200,000 for offensive military operations. [FN93] Later that month the United Nations Security Council gave America and her allies the authorization it needed to "use all necessary means" to eject Saddam Hussein's forces from Kuwait. [FN94] Although he received informal congressional support, President Bush did not ask for a declaration of war from Congress. Instead, he used his Commander-in-Chief powers to send forces, already authorized and funded by Congress, to the theater of operations.
President Bush's decision to act unilaterally did not sit well with many in Congress. The Senate Majority Leader stated that "a planned military offensive, which is, by definition, an act of war, must receive the prior authorization of the Congress." [FN95] On November 19, fifty-three Members of the House of Representatives and one Senator brought suit in the federal district court of the District of Columbia. [FN96] The plaintiffs sought an injunction against the President preventing him from beginning offensive operations without first obtaining a declaration of war or other explicit congressional authorization. The congressmen claimed that "their interest guaranteed by the War Clause of the Constitution is in immediate danger of being harmed by military actions the President may take against Iraq." [FN97]
In announcing the decision in Dellums v. Bush, Judge Greene agreed with many of the plaintiffs' arguments, but ultimately dismissed the suit on justiciability grounds. As a threshold matter, the court brushed aside the executive's claim that the court could not decide the case because it presented a "political question." It found that "an offensive *187 entry into Iraq by several hundred thousand United States servicemen under the conditions described above could be described as a 'war"' under the Constitution, and that Congress had the sole authority to declare war. [FN98] The court then held that the congressmen had standing to pursue the case because the prospect of war, and the possibility that the plaintiffs would not have an opportunity to vote on a declaration of war, stated a cognizable injury. [FN99] However, the court refused to reach the merits because the plaintiffs represented only a fraction of Congress: "[U]nless the Congress as a whole, or by a majority, is heard from, the controversy here cannot be deemed ripe; it is only if the majority of the Congress seeks relief from an infringement on its constitutional war- declaration power that it may be entitled to receive it." [FN100]
In a decision perhaps less heralded by the press and academia, another judge of the same court agreed with the result in Dellums, but on more forceful political question grounds. In Ange v. Bush, [FN101] a sergeant in the National Guard challenged the President's order deploying him to the Persian Gulf as a violation of the Declare War Clause and the War Powers Resolution. Unlike Judge Greene in Dellums, Judge Lamberth held that determining whether the President had violated the Constitution or the Resolution by sending troops to the Gulf without specific congressional approval was a non-justiciable political question. Referring to Baker v. Carr's test for political questions, Judge Lamberth found that the plaintiff sought a finding "which the judicial branch cannot make pursuant to the separation of powers," [FN102] and held that the plaintiff was asking "the court to delve into and evaluate those areas where the court lacks the expertise, resources, and authority to explore." [FN103] Like Judge Greene, Judge Lamberth also held that plaintiff's claim was not ripe for decision because it called for a speculative decision on whether the President actually intended to send the American forces into war. [FN104]
Events after the district courts' rulings are familiar. Although Congress had approved appropriations and reserve call-ups for Operation Desert Storm, many Members in both the House and Senate opposed the use of force to eject Iraq from Kuwait. On January 8, the President asked Congress for a resolution supporting the use of "all possible means" to implement the U.N. Security Council's directives, but he also made clear the next day that he did not need congressional *188 approval as a constitutional matter. [FN105] After televised debates, Congress approved a resolution supporting the President on January 12. Five days later, navy ships began launching Tomahawk cruise missiles against targets in Iraq, and the Air Force launched a 2000-sortie-a- day air assault that systematically destroyed Iraq's air force, supply depots, ground assets, and command-and-control facilities. On February 24, allied ground forces began a massive armor and infantry offensive that sent Iraqi forces in Kuwait into retreat and battered the Iraqi Republican Guards inside Iraq itself. On February 28, only 100 hours after ground operations had begun, President Bush declared a cease-fire, and Iraq announced that it would comply with all U.N. resolutions.
The actions of the President, Congress, and the courts during the Persian Gulf crisis illustrate the nature of war powers in our constitutional democracy. Even though the modern Supreme Court has never ruled on the proper constitutional allocation of war powers among the three branches, what Professor Reisman calls an "operational code of competence" [FN106] has formed among them. In other words, the President, Congress, and the federal courts have acted according to a set of norms and rules that they deem authoritative. In the war powers context, the President has taken the primary role in deciding when and how to wage war. Congress has fallen into the role of approving the interventions either through authorization before operations have begun or appropriations after the fact, while the judicial branch has abstained from inter-branch war powers disputes because they raise non-justiciable political questions. Put less charitably, we have a system which Professor Koh describes as one of "executive initiative, congressional acquiescence, and judicial tolerance." [FN107] Professor Koh's views are emblematic of a growing consensus among international and constitutional law scholars that the President's war powers grasp exceeds his constitutional reach. This critique is discussed below.
C. The Academic Critique: The President Against the Professors
For the most part, legal academia has sharply criticized the current state of war powers. In a series of recent books, foreign relations and international law scholars such as John Hart Ely, [FN108] Louis Henkin, [FN109] Michael Glennon, [FN110] Thomas Franck, [FN111] Louis Fisher, [FN112] and Harold *189 Koh, [FN113] have taken the Presidents to task for waging unconstitutional war and have chastised the courts for abdicating their duty to adjudicate war power cases. These scholars rest their arguments on three bases: first, that the Framers intended Congress to exercise exclusive control over the decision to go to war; second, that modern separation of powers doctrine requires congressional approval of war; and third, that the courts have a constitutional duty to determine the proper allocation of war-making power between the President and Congress.
1. Original Intent Betrayed
In a curious reversal of roles, the war powers question displays critics of the legal theories of the Reagan and Bush administrations readily invoking the intent of the Framers. They claim that the Declare War Clause, in light of their reading of the thoughts of the Constitution's drafters, clearly indicates that the Framers intended that Congress play an equal, if not paramount, role in the decision to go to war. This original intent argument is an important part of the academic critique of presidential power that this Article intends to refute. [FN114]
In his recent book, War and Responsibility, Professor Ely makes the strongest case for the idea that the Framers wanted Congress to have the upper hand. After reading the relevant constitutional clauses, Ely declares that there is a "clarity of the Constitution on this question." [FN115] Often it is true that "the 'original understanding' of the document's framers and ratifiers can be obscure to the point of inscrutability;" but "[i]n this case," Ely says bluntly, "it isn't." [FN116] According to Ely, the inescapable conclusion is that "all wars, big or small, 'declared' in so many words or not . . . had to be legislatively authorized." [FN117] Only when Congress has authorized a war do the President's Commander-in-Chief powers over the armed forces kick in.
*190 Ely builds support for this conclusion by unearthing evidence of the Framers' intent. He points to statements by James Madison, James Wilson, and Justice Story which suggest that the Framers placed the authority to declare war in Congress because they wanted to reduce the number of occasions when the nation would go to war. Ely and others [FN118] place great emphasis on a speech by James Wilson before the Pennsylvania ratifying convention:
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 war. [FN119]
Apparently the Framers thought that the more numerous the body that decided on war, the less likely war would be. [FN120] Thus, as Ely notes, the Framers "pursued a substantive end (the limitation of war to the absolutely necessary) by procedural means (requiring the concurrence of both houses of Congress as well as the president)." [FN121]
Armed with this evidence, Ely finds that the Framers' design has "complete contemporary relevance." [FN122] Requiring Congress to authorize war not only slows down the decision to go to war, but also forces those who shall pay for the war--the People of the United States--to reflect on its wisdom. Other scholars interpret the Framers' intent as not only an effort to "clog" the processes of war, but also as an affirmative attempt to curtail the powers of the President. According to Professor Glennon, "[o]riginal constitutional materials indicate that the Framers intended a narrowly circumscribed presidential war-making power, with the Commander in Cheif Clause conferring minimal policy-making *191 authority" [FN123] except in the case of sudden attacks. [FN124] Agreeing with Glennon, Professor Henkin notes, "[t]he President's designation as Commander in Chief, then, appears to have implied no substantive authority to use the armed forces, whether for war (unless the United States were suddenly attacked) or for peacetime purposes, except as Congress directed." [FN125]
Critics of presidential war powers also maintain that the bulk of American history supports a vision of shared authority over national security. They conclude that during all but minor military deployments abroad during the nineteenth and early twentieth centuries, presidents did not use force without authorization. Concludes Ely, "Of course real life is never entirely neat and clean, but the original constitutional understanding was quite consistently honored from the framing until 1950." [FN126]
While substantially in agreement, Professor Koh sees a more subtle shift from the Framers' intent of congressional pre-approval of military action to a system in practice where the President leads and Congress follows: "Although the Constitution's drafters had assigned Congress the dominant role in foreign affairs, the president's functional superiority in responding to external events enabled him to seize the preeminent role in the foreign policy process, while Congress accepted a reactive, consultative role." [FN127] However, according to Koh, even when the President took the initiative in war powers, he always sought congressional support for the use of force afterwards. In Koh's mind, this arrangement satisfies the constitutional design because it ensures "balanced institutional participation" in foreign affairs decision making by the three branches. [FN128]
These scholars see the Constitution violated first by President Truman in the Korean War. They argue that President Truman's decision to enter the Korean War violated the Constitution because he never received specific congressional approval to do so. [FN129] Although these scholars are split over whether the Tonkin Gulf Resolution constituted a *192 sufficient authorization for the Vietnam War, [FN130] they remain in agreement that the post-Vietnam war conflicts were unconstitutional. For example, both Glennon and Koh argue that the Reagan and Bush interventions, such as those in Grenada and Panama, violated the Constitution because they did not receive congressional approval.
2. The Separation of Powers Betrayed
Proponents of a reinvigorated congressional role in war powers also rest their arguments on separation of powers doctrine. Contending that the deference paid to the President in Curtiss-Wright was unjustified, critics of presidential power argue that foreign affairs should receive no special exemption from the separation of powers principle established by Justice Jackson in his concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer: [FN131] that in areas where both the President and Congress share powers, the Constitution places limits on how far the President may act without the support of Congress.
Youngstown involved a 1952 national steel strike that threatened the war effort in Korea. Relying on his Commander-in-Chief and inherent executive powers, Truman issued an order authorizing the Secretary of Commerce to seize and run the steel mills. The steel companies challenged the seizure in federal court on the ground that the President had not acted pursuant to the Constitution or statute. Not only had Congress failed to authorize such action, it recently had considered and rejected a law that would have given the President such powers. In response, the President claimed he was acting to secure the supply of steel necessary for the war in Korea pursuant to his wartime powers. [FN132] By a six-to-three vote, the Supreme Court rejected the President's attempt to exercise his executive war-making powers in the domestic sphere.
Youngstown is best known not for its majority opinion, but for Justice Jackson's concurrence, and it is on this concurrence that critics of presidential dominance rest their case for a vision of shared executive- legislative decision-making in foreign affairs. Jackson admitted that "[t]he actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context." [FN133] Nonetheless, he continued, "[p]residential powers are not fixed but fluctuate, depending upon their disjunction or conjunction *193 with those of Congress." [FN134] Justice Jackson then articulated his famous three-part test for determining the validity of the exercise of executive power: (1) when the President and Congress act together, the President's power is at its zenith; (2) when the President acts in violation of an act of Congress, his power "is at its lowest ebb"; (3) when the President acts in the absence of congressional authorization in an area of concurrent powers, he is in "a zone of twilight." [FN135] While Justice Jackson's thoughts on executive power took the form of a concurrence, a majority of the Court since has made it part of the Court's separation of powers jurisprudence. [FN136]
Most scholars rely on Youngstown to undercut presidential claims of unilateral war-making power vis-a-vis Congress. Koh reads Youngstown as "embrac [ing] the principle of balanced institutional participation in foreign affairs," [FN137] one that would suggest that both the Congress and the President must agree on the setting of foreign policy and the use of war powers. Henkin applies Youngstown in conjunction with the War Powers Resolution to conclude that Presidents who use force in compliance with the Resolution will find their authority at a maximum; Presidents who do not will find their power at its lowest ebb. [FN138] Glennon argues for an even narrower conception of presidential authority: presidential attempts to initiate war are always at the third category ("lowest ebb"), because the Declare War Clause not only *194 "empowers Congress to declare war," but also "serves as a limitation on executive war-making power, placing certain acts off limits for the President." [FN139]
3. Judicial Abdication
Although scholars may differ in their critique of current war powers practice, they agree on their most concrete recommendation for reform: an active, intrusive judiciary. Looking doubtfully upon the courts' attempts to shy away from the merits of war powers cases, [FN140] leading foreign relations scholars argue that the federal courts have "abdicated" their role in our constitutional system of checks-and-balances and unwittingly have contributed to the emergence of an imperial presidency. [FN141]
Thomas Franck has put forth a representative argument against the political question doctrine. He concludes that the judiciary has failed in its responsibility to apply the rule of law to foreign affairs. [FN142] To be sure, Franck accurately credits Chief Justice Marshall for articulating the doctrine in Marbury v. Madison: "[T]he president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience." [FN143] Almost two centuries later, according to Franck, judges and lawyers justify the doctrine on four grounds. First, the Constitution gives the President the primary role in foreign affairs to speak as the single organ of the nation, and therefore the courts should not interfere in cases where they might embarrass the President or disrupt the conduct of international relations. Second, foreign affairs cases involve issues where no legal standards are available. Third, foreign affairs cases require the production of evidence that is too complex, technical, unobtainable, or just plain foreign for an American judge to use. Fourth, prudentially, the courts do not want to intervene in foreign affairs for fear that the other branches will ignore the courts' order, thereby reducing the prestige and power of the federal courts. [FN144]
To Franck, such arguments in favor of the political question doctrine are fundamentally mistaken because they violate another of Chief *195 Justice Marshall's great dictums: "It is, emphatically, the province and duty of the judicial department to say what the law is." [FN145] By avoiding foreign affairs (and more specifically war powers) cases on political question grounds, judges have exempted the President from "the normal judicial umpiring process" that checks his actions at home. [FN146] "Carried to its logical extreme, this doctrine holds that the political authorities are suit-proof as long as they purport to act in pursuance of their 'foreign affairs' power." [FN147] Moreover, Franck claims that many of the cases where the Court has said that the political question doctrine applies do not really involve foreign affairs, or do so only tangentially. Rather, "judicial abdication in foreign-affairs cases has entered the jurisprudence primarily through rhetorical extravagance in cases with little or no foreign content rather than by a juridical practice of rigid abstinence in real foreign-affairs disputes." [FN148]
Franck also argues that judges are not applying the political question doctrine faithfully. Rather, judges apply the doctrine selectively, seemingly by their own whim or political tastes. When they do apply the doctrine, Franck claims that judges are merely indulging their slavish obedience to the President in all things foreign. Echoing a thesis put forward in the 1970s by Henkin, [FN149] Franck concludes that judges are really deciding the cases on the merits in favor of the executive branch or the government, and are merely using the doctrine as cover for their actions. "[T]he jurisprudence has a powerful whiff of hypocrisy: Judges say they will abstain but fail to do so; judges proclaim the separation of powers but almost always decide in favor of the government . . . ." [FN150]
What is to be done? Franck and others agree that courts should throw out the political question doctrine instead of political question cases. [FN151] They take Youngstown as a model and argue that courts can decide war power or foreign relations cases just as easily as they can decide any other separation of powers case, such as Bowsher v. Synar [FN152] or INS v. Chadha. [FN153] If the courts refuse to hear war powers cases, then critics recommend that Congress must force them to do so by including provisions in foreign affairs statutes requiring courts to take jurisdiction. [FN154] *196 For example, Professor Ely recommends amending the War Powers Resolution to allow soldiers or members of Congress to bring suit in federal court to enforce its provisions. [FN155] Ely's provision would also specifically prohibit courts from dismissing the case on the grounds of political question or other justiciability doctrines. Professor Koh goes one step farther by proposing that Congress pass a series of "framework" statutes in each foreign affairs area "that would override the abstention doctrines that the courts have wrapped around themselves." [FN156] In this way, these scholars tell us, courts will stop, in Chief Justice Marshall's words, committing "treason to the constitution" by not taking jurisdiction when they should. [FN157]
Scholars, thus, have provided a critique of current relationships between the three branches in the war powers area, which draws on original intent analysis and separation of powers concerns. The comprehensive historical analysis below, however, reveals that current war powers practices are, in fact, more compatible with the Framers' original design than these scholars have suspected.
II
THE BRITISH LEGACY
This Part locates the Constitution's textual allocation of war powers within the legal, political, and institutional history of the eighteenth century. It seeks a wider lens than the traditional focus on the legislative history of the War Powers Clause and on a few statements by individual Framers. It also seeks to advance our understanding of war powers by establishing the war clauses' relationship to the overall structure of the Constitution and the fabric of history and politics that gave meaning to the Constitution's sparse language. Examining how the executive and legislative branches shared war powers in Great Britain, the colonies, and the newly independent states will provide the context for understanding what the Framers hoped to accomplish in Philadelphia in 1787. If the Framers intended change, we may better appreciate its extent through careful study of the previous state of affairs. If the delegates to the Constitutional and ratifying conventions sought to continue the working political system they inherited, then the outlines of British and early *197 American practice will help us to define the arrangements created by the Constitution.
Examining the Constitution's antecedents reveals a war-making framework that contrasts sharply with the theories of today's scholarship. The relationships between the executive and legislative branches in Great Britain, the colonies, and the states during the Revolution and under the Articles of Confederation are the progenitors of today's war powers practice. In these earlier contexts, the legislative branch did play an important role in the decision to go to war, but not because it had the power to "authorize" war in the way that Congress authorizes, for instance, highway construction. Rather, legislatures of the eighteenth century controlled executive actions leading to war by using their appropriations power. The Constitution's provisions did not break with the tradition of their English, state, and revolutionary predecessors, but instead followed in their footsteps. [FN158]
Before interpreting the events surrounding the ratification of the Declare War Clause, we first must explore the historical and legal background of war powers in the Anglo-American world of the seventeenth and eighteenth centuries. The English Constitution provides the starting point, for the Framers were Englishmen who consistently referred to the system of their former nation when they designed their own government. American practice during and after the Revolutionary War under the Continental Congress, the state governments, and the Articles of Confederation also provides a useful understanding of the genesis of the war clauses. Only against this background of history and tradition can we comprehend the Framers' design and the current debate over the meaning of the war clauses.
A. English Constitutionalism and War
In adopting a new Constitution, the Framers consciously acted in the context of the British Constitution, under which they had lived as English colonists. As Bernard Bailyn has so elegantly shown, the American Revolution was in part an effort by the revolutionaries to reclaim their rights as Englishmen from a King and Parliament that had denied them their full political and civil privileges. [FN159] Although they threw off the weight of British political control, the Framers did not reject immediately the British system of government. The British *198 Constitution provided a storehouse of political and legal concepts that the Framers drew upon in constructing their own framework of government. Terms such as "Commander in Chief," "executive Power," "declare War," "granting Letters of Marque and Reprisal," or "raise and support Armies," have roots in the history of the British Constitution. Studying British constitutional history will clarify their meaning. Furthermore, the political history tracing the interaction between the Crown and Parliament will provide insight as to the type of relationship the Framers expected the President and Congress to share.
Unlike our written Constitution, the British Constitution refers to unwritten principles, expressed sometimes by statute or by accepted practice, that define the relationship between the executive and the legislature and between the government and the People. By the late eighteenth century, the British Constitution had undergone more than a century of struggle and change over the allocation of authority between Crown and Parliament, especially in the area of foreign affairs and war. Thus, discovering the structure of war powers established by the Framers requires us to review English constitutional history from the Stuarts through the Glorious Revolution of 1688. Our inquiry takes two approaches: first, it examines the eighteenth-century American's understanding of the British Constitution; and second, it discusses the history of the political struggle between the King and Parliament, a story familiar to any educated colonist and revolutionary.
As this bifurcated analysis suggests, the British Constitution provided two important precedents and models for the Framers. First, it set out the formal roles that the Crown and Parliament were to play in war. In short, the English system gave the executive leadership in the initiation and conduct of war, while the legislature was relegated primarily to funding the wars and impeaching ministers. Second, within these boundaries, the British Constitution provided the two branches with substantial leeway to shape a dense network of "subconstitutional" understandings, relationships, and practices governing war powers. This free-fire zone permitted Parliament to gain a substantial role in decisions on war, even though its formal powers extended only to appropriations. Both of these elements--formal power and real-life practice-- would make a substantial impression on England's colonists in North America.
1. The Allocation of War Powers in the English Constitution and Eighteenth- Century Political Thought
An examination of the theoretical approach to war powers by the political thinkers of the eighteenth century is a useful starting point. In setting up their system of government, the Framers often directly relied upon political theory. They turned to such thinkers for both an ideal *199 model of government and for an understanding of the Anglo-American past. [FN160] An examination of these works will show that, under the political theory of the day, certain types of war functions were considered to be best exercised by particular branches of government. The executive power was viewed as the most effective part of the government for commencing and waging war, while the legislature was seen as best suited for handling fiscal affairs.
On questions concerning government and law, eighteenth-century Americans turned to three writers in particular--John Locke, William Blackstone, and Montesquieu. Although their ideas were filtered through the lens of English "country" opposition ideology, [FN161] their descriptions of the English Constitution guided the Framers' approach to government power, separation of powers, and war powers. As the Framers sought to establish the separation of powers in the federal Constitution, it was only natural that they referred to the political theorists of their day.
Locke divided the powers of government into three types: legislative, executive, and federative. Within the legislative sphere rested the "power in every commonwealth" to promulgate the laws, while the executive, a "power always in being," bore the responsibility to "see to the execution of the laws that are made." [FN162] Locke defines the federative power as "contain[ing] the power of war and peace, leagues and alliances, and all the transactions with all persons and communities without the commonwealth," [FN163] which we today think of as the foreign relations power. He decided that the executive and federative power were "really distinct in themselves" because the former concerned itself with "the execution of the municipal laws of the society within itself," while the latter pertained to "the management of the security and interest of the public without." [FN164] "[Y]et," Locke concluded, "they are always almost united" because the federative power "is much less capable to be directed by antecedent, standing, positive laws, than the executive." [FN165] To separate the two powers would lead to "disorder and ruin," Locke predicted, because "the force of the public *200 would be under different commands." [FN166] Yet the powers were distinct, because managing foreign affairs did not involve the execution of laws, but rather the performance of the different function of conducting international relations. [FN167]
In addition to these powers, Locke's executive also wielded the prerogative." Locke argued that the executive employed the prerogative in cases of emergency "to act according to discretion for the public good, without the prescription of the law, and sometimes even against it." [FN168] "Many things there are which the law can by no means provide for, and those must necessarily be left to the discretion of him that has the executive power in his hands, to be ordered by him as the public good and advantage shall require." [FN169] Such power rested in the hands of the executive, Locke believed, because the legislature was sometimes too numerous or slow to act or could not anticipate unforeseen situations. [FN170] Further, in Locke's eyes, the King must have the prerogative because he represented the interests of the Community. Although potentially of great benefit to the Community, executive prerogative raised the "old question" of how to judge when the prerogative came into conflict with the Legislative power. [FN171] In such disputes, Locke wrote, "there can be no judge on earth." [FN172] Thus, when the executive and legislature oppose one another, the branches either must work out a political compromise, or they must "appeal to heaven." [FN173]
Locke's articulation of the separation of powers as the classification and allocation of powers by function was not the only approach. Some early eighteenth-century thinkers derived a doctrine of checks and balances that began with ideas of mixed government. [FN174] The Parliament and King would use their powers both to pursue the People's interests and to preserve themselves against the other branch's encroachments. By the 1730s, these theories of mixed government had begun to eclipse purely functional accounts of the separation of powers. [FN175]
*201 The Framers received these theories through Montesquieu's The Spirit of Laws. Montesquieu accepted a functional approach to the separation of powers, but he also saw the need for checks and balances to allow the system to work. [FN176] Following Locke's distinction between the legislative, federative, and executive powers, Montesquieu divined "three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive, in regard to things that depend on the civil laws." [FN177] The last of the three would be, in part, what we understand as the judicial power. The second is a vision of an executive power wholly rooted in war and foreign affairs: "By the [executive power, the prince or magistrate] makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions." [FN178]
Although Montesquieu separated the functions of government into different branches, he also sought to give the executive and legislature controls over one another. In military affairs, Montesquieu argued that the executive should possess exclusive control over the army: "once an army is established, it ought not to depend immediately on the legislative, but on the executive power; and this from the very nature of the thing; its business consisting more in action than in deliberation." [FN179] The legislature did, however, exercise two checks on executive authority. First, if in disagreement with the executive the legislature could terminate the funding for the military. Wrote Montesquieu in praise of the British practice of annually voting military appropriations:
If the legislative power was to settle the subsidies, not from year to year, but for ever, it would run the risk of losing its liberty, because the executive power would no longer be dependent; and when once it was possessed of such a perpetual right, it would be a matter of indifference, whether it held it of itself, or of another. The same may be said, if it should come to a resolution of instrusting, not an annual, but a perpetual command of the sea and land forces to the executive power. [FN180]
Second, the legislature could check the executive's military policies by terminating authorization for the army: "The legislative power should have a right to disband [a standing army] as soon as it pleased." [FN181] *202 Thus, in discussing war, as in separation of powers theory generally, Montesquieu carried Locke further by marrying functional separation with checks and balances. Like Locke, Montesquieu saw no role for the judiciary in overseeing this self-regulating system of executive-legislative relations. [FN182]
These thoughts were reinforced in the minds of the Framers by Blackstone's Commentaries on the Laws of England, with which they were intimately familiar. [FN183] Blackstone incorporated Locke and Montesquieu's theories on the separation of powers and the nature of the executive prerogative into a system of constitutional law. Like Locke, Blackstone defined the royal prerogative as that "discretionary power of acting for the public good." [FN184] As to the prerogative's limits, he observed that if it "be abused to the public detriment, such prerogative is exerted in an unconstitutional manner." [FN185] Blackstone had a narrower view of the prerogative than Locke. Locke conceived of the prerogative as doing good without or in violation of the law, while Blackstone envisioned executive discretion as operating only when "the positive laws are silent." [FN186] Nonetheless, both English writers conceived of a constitutional environment that did not attempt to divide government power among the branches by employing fixed lines. Neither thinker appears to have believed that judicial intervention was necessary to regulate the system of checks and balances.
Providing a broad catalogue of executive power and duties, the Commentaries conclude that the power over foreign relations properly belongs to the executive. Such authority fell to the King both because he serves as the "delegate or representative of his people," [FN187] and because "[i]t is impossible that the individuals of a state, in their collective capacity, can transact the affairs of that state with another community equally numerous as themselves." [FN188] According to Blackstone, "[w]hat is done by the royal authority, with regard to foreign powers, is the act of the whole nation: what is done without the king's concurrence is the act only of private men." [FN189] Blackstone's reasoning led to the conclusion that the King has the sole power to make treaties, for "it is by the law of nations essential to the goodness of a league, that it be made by the sovereign power; and then it is binding upon the whole community: *203 and in England the sovereign power, quoad hoc, is vested in the person of the king." [FN190]
Blackstone envisioned an even more absolute power for the executive during wartime. The English jurist defended the King's powers in matters of peace and war on international and natural law principles, rather than on history and tradition:
[T]he king has also the sole prerogative of making war and peace. For it is held by all the writers on the law of nature and nations, that the right of making war, which by nature subsisted in every individual, is given up by all private persons that enter into society, and is vested in the sovereign power: and this right is given up not only by individuals, but even by the [e]ntire body of people, that are under the dominion of a sovereign. It would indeed be extremely improper, that any number of subjects should have the power of binding the supreme magistrate, and putting him against his will in a state of war. [FN191]
Primacy in making war and peace required that the executive posses the lion's share of the war powers. Thus, Blackstone states that the King is the "generalissimo, or the first in military command, within the kingdom." [FN192] As with the treaty power, this aspect of the war power devolves to the King because of his role as the sovereign representative and protector of the People and because "united strength in the best and most effectual manner" is exercised by a monarch. [FN193] His capacity as "general of the kingdom" also gives the King "the sole power of raising and regulating fleets and armies." [FN194] On this point Blackstone went into something of a frenzy, perhaps due to the memories of Parliament's attempt during the Civil Wars to wrest military control from the King. Military command, Blackstone claims, "ever was and is the undoubted right of his majesty, and his royal predecessors," and completely outside the jurisdiction of Parliament. [FN195]
Another aspect of the executive's prerogative in foreign affairs was the power to declare war. Because the Declare War Clause has played such a pivotal role in the war powers debate, a separate section that follows discusses Blackstone's understanding of the declare-war power in the larger context of eighteenth-century international law and legal theory. [FN196]
*204 In the face of such absolute royal prerogative, Blackstone left little to Parliament in war and foreign affairs. He acknowledged Parliament's dominant role in domestic legislation. Parliament has the "sovereign and uncontrol[l]able authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal." [FN197] Moreover, only Parliament can approve the imposition of taxes, which are needed for funding and supplying the army. In terms of explicit foreign relations powers, Blackstone appeared to permit Parliament only the tool of impeachment, which it could use after the King and his ministers had entered into an unwise treaty or war. Thus, "the constitution . . . hath here interposed a check" on the treaty power, because Parliament could impeach "ministers [who as from criminal motives] advise or conclude any treaty, which shall afterwards be judged to derogate from the honour and interest of the nation." [FN198] Likewise, the Crown's ministers would be restrained in exercising the war power by "the same check of parliamentary impeachment, for improper or inglorious conduct, in beginning, conducting, or concluding a national war." [FN199] Unlike our modern system, then, the British Constitution of the mid-eighteenth century, according to Blackstone, explicitly provided for legislative influence in war and foreign affairs primarily by giving Parliament the power to punish Crown ministers for failed enterprises. It also implicitly recognized Parliament's plenary authority over the purse.
2. The Declare-War Power in the English Constitution and Eighteenth-Century Political Thought
As we have seen, critics of presidential war-making rely heavily on the Constitution's allocation of the power to "declare war" to Congress. These critics, however, have misinterpreted the meaning of a declaration of war. Interpreting "declare" war to mean "authorize" or "commence" is a twentieth- century construct inconsistent with the eighteenth-century understanding of the phrase. This Section provides an overview of the theories that would have been familiar to the Framers, including those of Blackstone, Grotius, and Vattel. Examination of these sources demonstrates that a declaration of war was significant for its juridical purposes--for altering the formal legal status between nations--but not for the domestic constitutional question of commencing hostilities.
*205 Under Blackstone's version of the British Constitution, the monarch did not need to declare war to begin hostilities against another nation. [FN200] Such a requirement would have served little purpose, in light of the Crown's other prerogatives in the field of war. According to Blackstone, the declaration of war plays two roles: it protects British citizens by notifying other nations that the citizens' hostile actions have received state approval, and it serves to legally bind the People to the King's decision to wage war.
[The reason] why according to the law of nations a denunciation of war ought always to precede the actual commencement of hostilities, is not so much that the enemy may be put upon his guard, (which is matter rather of magnanimity than right) but that it may be certainly clear that the war is not undertaken by private persons, but by the will of the whole community; whose right of willing is in this case transferred to the supreme magistrate by the fundamental laws of society. So that, in order to make a war completely effectual, it is necessary with us in England that it be publicly declared and duly proclaimed by the king's authority; and, then, all parts of both the contending nations, from the highest to the lowest, are bound by it. [FN201]
A declaration of war only perfected, or made "completely effectual," hostilities between two nations, which otherwise could take any form that constitutes an "incomplete state of hostilities." [FN202] When the British monarch exercised his sole authority on questions of war and peace, he could issue a declaration of war either before or after "the actual commencement of hostilities." Although part of the war powers, the authority to declare war was not necessary to begin or to conduct hostilities.
From a legal perspective, the declaration performed an important function in distinguishing between limited hostilities and an all-out conflict. It was clearly understood in the eighteenth century that a "declared" war was only the ultimate state in a gradually ascending scale of hostilities between nations. For example, Blackstone described letters of marque and reprisal as creating "only an incomplete state of hostilities" that could eventually produce "a formal denunciation of war." [FN203] Any unauthorized hostilities committed by private citizens, *206 therefore, would not constitute war, but would be the actions of "pirates and robbers." [FN204]
Blackstone, however, recognized that a nation could authorize private citizens to wage war against another state. Hence Blackstone described the executive's authority to issue letters of marque and reprisal as "nearly related to, and plainly derived from, [the prerogative] of making war." [FN205] Recognized by the law of nations, such letters authorized their bearers to "seise the bodies or goods of the subjects of the offending state" to satisfy some oppression or injury received earlier [FN206]--a particularly violent form of international quasi-in-rem jurisdiction, as it were. But the plaintiffs received formal protection from piracy or robbery laws because the letter of marque and reprisal gave their conduct the sanction of state approval.
In describing the various forms of international hostilities, Blackstone drew on the writings of international law scholars of the seventeenth and eighteenth centuries. For example, Blackstone's description of a declaration of war borrowed liberally from international law treatises, often without citation. International law scholars agreed that a declaration of war was unnecessary either to begin or to wage a war, but rather was a courtesy to the enemy. Declarations derived from the ancient practice of sending heralds to the enemy capital to announce that a state of war existed between the two nations. [FN207] According to Grotius, a declaration of war notified the enemy of the injury suffered and specified the conditions for redress or surrender. [FN208] A declaration also served notice on allies of the enemy that they might become accessories to the war. [FN209] A declaration constituted something of a complaint in the international dispute resolution process of the seventeenth and eighteenth centuries.
According to these scholars, a declaration of war played a dual legal purpose. First, it notified the enemy that a state of war existed between them. If a nation warned its enemy of future hostilities, its later actions would receive the protection of international law. [FN210] A declaration announced that hostile actions by its soldiers were taken under national aegis, and thus did not constitute piracy or robbery. Grotius commented:
*207 [A] more satisfactory reason [for requiring declarations] may be found in the necessity that it should be known for certain, that a war is not the private undertaking of bold adventurers, but made and sanctioned by the public and sovereign authority on both sides; so that it is attended with the effects of binding all the subjects of the respective states . . . ." [FN211]
Given this purpose, a declaration would have little use unless the warring nation announced the inauguration of hostilities to the other state and to its own citizens. According to Vattel, "[t]he declaration of war must be known to the state against whom it is made. This is all which the natural law of nations requires." [FN212] Once the declaration issued, the warring nations lawfully could attack the other's citizens and territory and seize the contraband goods of neutrals. Vattel remarked: "Without such a public declaration of war, it would be difficult to settle in a treaty of peace, those acts which are to be accounted the effects of the war, and those which each nation may consider as wrongs, for obtaining reparations." [FN213]
Second, declarations played a domestic legal role by informing citizens of an alteration in their legal rights and status. Vattel wrote:
It is necessary for a nation to publish the declaration of war for the instruction and direction of its own subjects, in order to fix the date of the rights belonging to them from the moment of this declaration, and relatively to certain effects which the voluntary law of nations attributes to a war in form. [FN214]
Declarations instructed citizens of their new relationship with the enemy state, and informed them that they could take hostile actions against the enemy without fear of sanction. With a declaration of war in hand, citizens of the contending nations could "annoy" the persons or property of the enemy and lawfully keep captured vessels. Grotius, for example, devoted one of the chapters of his De Jure Belli ac Pacis to "On the Right of Killing an Enemy in Lawful War and Committing Other Acts of Hostility." [FN215] According to Grotius, a citizen of a nation formally at war if captured "cannot be treated as a robber, malefactor, or murderer . . . for being found in arms." [FN216]
Thus, a declaration of war served the purpose of notifying the enemy, allies, neutrals, and one's own citizens of a change in the state of relations between one nation and another. In none of these situations did a declaration of war serve as a vehicle for domestically deciding on *208 or authorizing a war. The seventeenth and eighteenth-century writers on international law never implied that a nation had to issue a declaration of war before waging hostilities. As we shall see, hostilities in the absence of a declaration of war were the norm, rather than the exception, of seventeenth and eighteenth- century Anglo-American history. [FN217] While attacking without a declaration might violate international law, the treatise writers did not claim such action would violate domestic law.
3. The Lessons of British History: The Sinews of War
As citizens of the British empire, the Framers not only operated in the intellectual context of eighteenth-century British and international legal thought, but they also were clearly aware of recent British history. In thinking on and debating questions of constitutional law, the Framers constantly referred to recent British history, which was, after all, their history as well. This was no less true of war powers than it was, for example, of the freedom of the press. [FN218] In this regard, Blackstone's description can provide only an incomplete glimpse of the war power in eighteenth-century Britain and thus of the Framers' understanding of the war power. Even though Sir William Holdsworth, the British legal historian, declares that Blackstone's Commentaries "is by far the best account of the position of the prerogative in the public law of the eighteenth century," he notes that "his account is only a sketch; and it fails to take account of the manner in which, even when he was writing, some parts of the prerogative were being enlarged, others curtailed, and others rendered more precise." [FN219] Further, Blackstone limited his discussion to the formal legal arrangement of the war power, which tended to overemphasize the power of the executive. Missing was any description of the working relationships and political procedures created within the formal boundaries of the constitution. Presently, this Article will attempt to fill in that gap.
Examining how the political system of war powers actually operated will provide vital context for our inquiry, because the Framers were as well aware of British political history as they were of Blackstone's Commentaries. In adopting elements of the British Constitution's checks and balances, the Framers reasonably could expect those elements to produce a relationship between the President and Congress similar to the one that they thought existed between Crown and Parliament. Conversely, it is not unreasonable to construe the Framers' rejection of a specific distribution of power in the British Constitution as *209 a corresponding renunciation of that aspect of the British political system.
During the seventeenth century, the British Constitution underwent a series of crises revolving around the military and the war power. [FN220] In a series of struggles that began with the Stuarts in the 1620s, continued into the Protectorate of Cromwell and the Restoration, and stabilized with the Glorious Revolution of 1688, the Crown and Parliament fought for the upper hand in foreign affairs. From the ascension of James I to the beheading of his son, Charles I, the executive and legislature specifically struggled over the issue of funding. The Protectorate saw a period of formal parliamentary supremacy in war powers, but the Restoration of the Stuarts in 1660 returned to the King his formal powers, while Parliament retained its sole control over appropriations. Parliament's funding authority gave it a powerful voice in foreign affairs, one that it enhanced in the Glorious Revolution by placing restrictions on the King's ability to raise armies in peacetime. By the dawn of the eighteenth century, the conflicts between Crown and Parliament yielded a stable constitutional system which gave the executive discretion in matters of war, with the legislature playing a substantial role due to its control over appropriations.
When James I became the first Stuart monarch in 1603, tradition had given the King the power to make war and peace, to conclude treaties, and to control the army and navy. However, Parliament's power over the purse rendered the King's prerogative to raise armies and navies an empty one, unless the Crown could find other sources of funding. Parliament's "exclusive control over finance enabled it to criticize all the acts of the executive government, to stop projects of which it disapproved, to force the executive to adopt policies of which it approved, *210 and to supervise the methods adopted to carry them out." [FN221] James I, however, sought to follow an independent foreign policy without interference from Parliament.
To effectuate such a policy, James I followed the strategy of some of his predecessors and preferred to rely on the Crown's revenues. Nonetheless, disputes over the Crown's peacetime revenues, and, more importantly, the onset of the costly Thirty Years' War on the Continent, forced James I to seek parliamentary support. In 1621 and again in 1624, Parliament effectively forestalled James I's plans to fight in the German wars by approving only meager funds for the army. Further, Parliament encouraged an unwilling James I to break England's treaties and initiate hostilities against Spain by voting funds contingent only for such a war. [FN222] James I broke off relations with Spain and a naval war began in earnest in 1624, even though no declaration of war had been issued. Parliament supported this undeclared war with funds, even though England did not officially declare war until September of 1625. [FN223]
Cooperation broke down, however, when Parliament sought to intervene in the military conduct of the war by impeaching ministers responsible for reverses on the field of battle. Charles I's ascension to the throne in 1625 only led to further deterioration in relations between the King and Parliament. Like his father, Charles sought to avoid parliamentary involvement in foreign affairs by seeking independent funding sources for his policies. By 1629, Charles had dissolved Parliament and was raising funds by selling Crown lands, by imposing a "ship-money" levy on maritime communities to pay for the navy, and by requiring forced loans to the Crown. [FN224]
After Parliament won the subsequent Civil War in 1647 against the Crown, the revolutionaries sought to institutionalize legislative participation in matters of war and peace. Proposals for governmental reform suggested that the constitution provide for a King's Council which *211 would decide on war only with "the Advice and Consent of Parliament," or that the government vest all legislative authority in a new national assembly that would exercise all powers of state, including that of "making of War and Peace." [FN225] Even though the subsequent beheading of Charles I left all executive powers in the hands of Cromwell the "Lord Protector," Parliament still continued to propose written constitutions which required legislative approval in decisions concerning foreign affairs and war. [FN226]
The Instrument of Government, which in 1653 designated Cromwell as the Lord Protector and established a council of advisers to hold office for a permanent term, gave the executive the sole authority to communicate with foreign nations. But the Instrument also required him to seek the "consent of the major part of the Council" on matters of war and peace. [FN227] The Instrument also constrained the executive's control over the military forces by permitting the Lord Protector to "dispose and order" the militia, army, and navy only "by consent of Parliament," and when Parliament was not sitting, by a majority vote of the Council. [FN228] The Instrument made clear that the executive could not raise money to pay for "the present wars" without the approval of Parliament, except in emergency. When even this Constitution proved unworkable, Parliament then wrote another framework of government, The Humble Petition and Advice of 1657, which reproduced the mechanism of joint control over the armed forces. [FN229] Although the Framers were well aware of this history, they never mentioned these examples when allocating war powers in our Constitution.
The restoration of the Stuarts in 1660 represented a rejection of the English experiment with republican government. Charles II's return also signaled the restoration of the Crown's prerogatives over war and peace, over the conduct of diplomatic relations, and over the making of treaties. [FN230] Further, Parliament passed a statute returning to the King "the sole supreme government, command and disposition of the militia and of all forces" and abjuring Parliament's right to the same. [FN231]
However, if the Civil Wars had ended the debate over control over the armed forces, they also had locked into place Parliament's sole *212 control over the funding of national policies. Instead of voting lump sums to the Crown, Parliament began to appropriate funds specifically for the army and to forbid the transfer of money from other accounts for military purposes. [FN232] It was this balance between executive initiative and planning and legislative control of appropriations that would characterize British foreign relations for at least another century. [FN233] Again, American colonists were familiar with this history and understood the resulting allocation of power.
In particular, the Framers would have taken note of the ample opportunities available to Parliament to use its financial power to participate in the development of foreign policy. Consider that from 1660 to 1801 Britain seemed to be at war more often than it was not: 1665-67 (Second Anglo-Dutch War), 1672-74 (Third Anglo-Dutch War), 1689-97 (War of the Grand Alliance), 1702-13 (War of the Spanish Succession), 1718-20 (War of the Quadruple Alliance), 1739- 48 (War of the Austrian Succession), 1754-63 (Seven Years' War), 1775-83 (the American Revolution), and 1793-1801 (War with revolutionary France). [FN234] Continual war demanded continual funding, and important Members of Parliament used, their voting power over military appropriations to seek a cooperative arrangement with the Crown in the setting of foreign policy. [FN235] Only when doubts arose about the Stuarts' flirtations with Catholicism at home and abroad did politicians "seek to use the opportunities that parliamentary control over war finance presented to curtail [the Crown's] power." [FN236]
Although Parliament supported Charles II at the outset of his war against the Dutch, it grew fearful when Charles II signed a treaty with Catholic France to partition the Netherlands, and it used its fiscal powers to force an end to the Dutch war. Parliament then took its own initiative and voted supplies for a war against France in 1677 and 1678, in the hopes that Charles II would adopt an explicit anti-French policy. Parliament even threatened to cut off all funds for the military if the King did not enter a treaty "against the growth and power of the French king." [FN237] However, Charles II vigorously refused to allow "this fundamental power of making peace and war to be so far invaded." [FN238]
*213 After the Glorious Revolution of 1688, Parliament's role, although still rooted in its control over finances, extended beyond simply thwarting royal initiatives. The Bill of Rights, imposed upon William and Mary in 1689 as the price for their throne, removed from the royal prerogative the power to raise and keep a standing army in peacetime. [FN239] Thereafter, the decision to raise a standing army required statutory authorization. After 1688, Parliament provided authorization and funding through annual Mutiny Acts. [FN240] Thus, Blackstone was only partially correct when he wrote that the King had the prerogative to raise and regulate armies and navies; the King could do so, but only with the cooperation of Parliament.
Parliament's financial power had become so institutionalized and accepted that it constituted a potential veto over decisions on war and peace. In part, Parliament owed its continuing presence in foreign affairs to its own permanent presence in the British political system. As part of the post- revolutionary settlement, the King no longer could rule without calling the legislature into session at least once every three years. [FN241] Parliament became the forum where political groups--representing both the Crown's ministers and various parties--sought to define and present the national interests to domestic and international audiences. [FN242] As a historian of the period concludes, "[t]o this extent the Glorious Revolution gave England and then Britain a parliamentary foreign policy, a policy that was often expounded and debated in Parliament for political reasons that were not related solely to Parliament's fiscal powers." [FN243] Or as a contemporary of the day argued before the House of Commons in 1739, "according to the old maxim of our Constitution, the king is invested with the sole power of making peace and war; but from the late conduct of some gentlemen in this House, I begin to doubt whether this ought to be allowed as a maxim in our constitution." [FN244] The speaker, the Secretary of War, believed this to be the case because "[t]here are some amongst us who, of late years, have taken upon them to prescribe to his majesty not only when, but how he is to make both peace and war." [FN245]
*214 Parliament also influenced decisions on war and peace by use of its impeachment powers. [FN246] If Parliament believed that the Crown had pursued an unwise foreign policy or war, it could accuse the prime minister and other officials of a criminal offense as vague as that of derogating from the dignity and interests of the nation. Parliament, for example, impeached Charles II's ministers Clarendon in 1667 and Danby in 1678, because they engaged in an unsuccessful or unpopular foreign policy--one, however, that wholly represented the wishes of the King. [FN247] To be sure, Parliament could exercise this power only after the fact, but it gave the Commons a voice in the selection of ministers and executive policy, especially as the Crown came to adopt cabinet- style organization after the turn of the century. [FN248] Thus, by the middle of the eighteenth century, the Crown had difficulty conducting policies in opposition to the Commons, even though the King formally still retained the sole prerogative of selecting his advisers. [FN249]
4. The Lessons of British History: The Declaration of War
British practice also provides support for this Article's interpretation of the function of a declaration of war. In two of Britain's major military engagements in the seventeenth and eighteenth centuries--the entry into the Thirty Years War against Spain in 1624, and the struggle with France during the Seven Years' War beginning in 1756--the King did not declare war until more than a year after offensive operations had begun. [FN250] In fact, in the many wars fought after the Restoration (the Second and Third Anglo-Dutch Wars, King William's war, the War of the Spanish Succession, the War of the Austrian Succession, and the Seven Years' War), England declared war only once before or at the commencement of hostilities. [FN251] This period also witnessed numerous minor conflicts in which England never declared war at all. [FN252] If the British of the seventeenth and eighteenth centuries (which included the *215 American colonists) believed a declaration of war played an authorizing function for hostilities, they certainly failed to practice what they preached.
The declarations of war published in the British colonies confirm that the views of international legal scholars and the lessons of British practice were understood throughout the Empire's possessions. These declarations usually catalogued the offenses committed by the other nation (usually France) in an effort to show that a state of war already existed, with Britain's own declaration playing the happy role of merely recognizing the ongoing state of hostilities. [FN253] For example, William and Mary devoted most of their May 7, 1689 declaration of war against France to a recitation of French actions-- seizing English possessions in the Americas, attacking English ships, persecuting English nationals in France, and seeking to foment rebellion against the new monarchy--which had the effect of commencing the war between the two nations. [FN254] The March 29, 1744 declaration against France similarly narrated a litany of French provocations and attacks on British possessions--going so far as to describe in detail captured French documents ordering commanders to attack British settlements in a time of peace, and a French declaration of war against Britain and her allies--to show that war already existed. [FN255] Britain's declaration of the Seven Years' War on May 17, 1756, while giving the pretexts for the King's decision, characterized previous hostile actions by both nations as already a "war." [FN256] Underscoring their formal nature, all three declarations were devoted toward describing the new legal status certain actions would gain during wartime: hostile attacks by British commanders were permitted; communications with the French King were illegal; French ships captured were lawfully prize ships; wartime materials were contraband; and French subjects helping the British cause would receive protection. [FN257] In these documents, the British King recognized the wrongs committed by the French, their impact in creating a state of war, and the domestic legal ramifications that flowed therefrom.
Thus, the usual British course toward war involved months, if not years, of direct armed conflict without a declaration of war. Many of these wars remained vivid in the minds of the Framers, whose fathers *216 fought in them as subject of the British Empire. The colonies themselves were often a substantial part of the theater of war and, in any event, they were valuable wartime assets of the Crown. Thus, we can expect the Framers to have remembered the full year of British naval attacks against the French and Spanish that preceded Queen Anne's declaration of the War of the Spanish Succession on May 4, 1702. [FN258] The War of the Austrian Succession, which England declared against Spain on October 13, 1739, and against France on March 29, 1744, would have remained even more vivid in their minds. [FN259] Months before the 1739 declaration, British naval commanders in North America began offensive operations against Spanish forces and settlements. Almost a year before the 1744 declaration, the entire Empire celebrated the battle of Dettingen, in which King George II himself led British troops to victory over the French. [FN260]
If any event impressed on the Framers the idea that declarations of war were unnecessary to conduct hostilities, it was the Seven Years' War. Not only was that war the most recent, and the one in which George Washington saw his first significant military action, it was also the first conflict between the Great Powers that began in America. England did not declare war on France until May 17, 1756. [FN261] Nonetheless, American and British troops had engaged in direct conflict with French troops as early as July 3, 1754, when French troops defeated colonial forces under Major George Washington in the disputed Ohio Valley. [FN262] One year later (but still eleven months before a declaration of war), the French scored a stunning victory at the battle of Fort Duquesne over two regiments of British regulars led by the unskilled commander in chief of British North America, General Braddock. Americans remembered the date of the battle well, for Washington had served as aide-de-camp to Braddock and, in revolutionary myth, had led the Virginia militia courageously in Indian-style fighting tactics while the British had died like cowards. [FN263] Even in the early decades of the nineteenth century, American can legal scholars, such as Chancellor Kent, still remembered that the *217 Seven Years' War had broken out in America several years before England formally declared war. [FN264]
5. Summary of the British Model
This review of English constitutional history reveals the positive political system that grew out, of the formal legal boundaries described by Blackstone. The eighteenth-century English monarch was commander in chief of the armed forces and possessed exclusive power to enter into treaties, to declare war, and to raise and regulate the army and navy. Although formal power was allocated to the monarch, Parliament exerted its influence in these areas through its sole control over the public fisc and through its power to impeach ministers. Parliament could end wars by threatening to eliminate supplies for the army. It could try to force the King into war by voting funds for wars it wanted the Crown to initiate. It could hold the Crown accountable for decisions concerning treaties and war by impeaching the King's ministers for foreign policy failures. A foreign observer of the eighteenth-century British Constitution summarized the system nicely:
The king of England . . . has the prerogative of commanding armies, and equipping fleets; but without the concurrence of his parliament he cannot maintain them. He can bestow places and employments; but without his parliament he cannot pay the salaries attending on them. He can declare war; but without his parliament it is impossible for him to carry it on. In a word, the royal prerogative, destitute as it is of the power of imposing taxes, is like a vast body, which cannot of itself accomplish its motions; or, if you please, it is like a ship completely equipped, but from which the parliament can at pleasure draw off the water, and leave it a-ground--and also set it afloat again, by granting subsidies. [FN265]
These operating relationships, expressed in both formal constitutional law and politics, provided a starting point when our Framers drafted our Constitution. Steeped in the British political history of their day, the Framers could see before them the long gray line of Stuart Kings, impeached ministers, divisive wars both foreign and domestic, and unruly Parliaments. Naturally, then, when the Framers allocated war powers between the President and Congress, they used as their baseline the separation of powers they believed to exist between King and Parliament.
*218 III
WAR AND EARLY AMERICA
The Framers were influenced not only by the theory and practice of British war-making, but also by their own experiences with American government prior to 1787. This Section will discuss war powers as illuminated by the colonial charters, state constitutions, and the Articles of Confederation. Although Blackstone and the Articles of Confederation have been the primary focus of scholarly attention, [FN266] colonial charters and state constitutions deserve a central place in the historical debate over war powers. The colonies, and later the states, provided the Framers with a shared system of reference with which to understand the workings of government. Colonial governments provided examples of legislative participation in military affairs through the appropriations power. State governments provided working examples of a separate executive branch, which the Articles of Confederation lacked. The states each constituted independent nations capable of waging war or making peace on their own, and as independent states, chose different allocations of the war powers. [FN267] Finally, as the most significant governmental legal documents of their day, state constitutions provide the most relevant legal context for construing the meaning of the federal Constitution.
The states' experiences prior to the drafting of the Constitution provided evidence to the Framers of both the dangers and the advantages of a strong executive: On the one hand, the revolutionaries, in part, had rebelled against the power of the royal governors. On the other hand, the Framers had witnessed the excesses of the post-revolutionary state legislatures and the crippling of the independence and authority of their executive branches. By studying the evolution of the state constitutions, we can better understand the Constitution and war powers as part of the Framers' attempt to cure legislative excess by erecting a unitary, independent executive in the form of the presidency. In this effort, the Framers borrowed from the examples of governors they thought had performed particularly well, and rejected those executives whose power remained subordinated in all respects to their assemblies. When understood in the context of the Anglo-American constitutional traditions of executive leadership in war and of legislative fiscal control, the Constitution's allocation of war powers becomes yet clearer.
*219 A. Colonial Government
Although they would come to suspect the institution, the colonists had an intimate familiarity with executive government. To a surprising degree, colonial government--whether royal, corporate, or proprietary--mirrored the formal institutional arrangements of the British Constitution. Each colony had an executive governor, appointed by the Crown for an indefinite term, a representative legislature, and some type of council or upper house. [FN268] In most cases, the formal powers of the colonial governors exceeded those of the monarchy back home. For example, colonial governors possessed the authority to veto colonial legislation, to dissolve the legislature, and to appoint and dismiss judges at will, all powers which the King had not exercised since before the turn of the eighteenth century. [FN269]
As in these areas, so too it was in the arena of war. Colonial charters gave the governors full control over the raising and deployment of the military, which most often took the form of the militia. Royal commissions authorized colonial governors
to arm, muster, and command all persons residing within his province; to transfer them from place to place; to resist all enemies, pirates, or rebels; if necessary, to transport troops to other provinces in order to defend such places against invasion; to pursue enemies out of the province; in short, to do anything properly belonging to the office of commander-in-chief. [FN270]
Massachusetts' Charter contained a typical colonial provision for making war. It vested in "the Governor of our said Province" the "full Power by himselfe" to "traine instruct Exercise and Governe the Militia," "to assemble in Martiall Array and put in Warlike posture" the inhabitants, and to lead the militia "to Encounter Expulse Repell Resist and pursue by force of Armes," and "to kill slay destroy and Conquer" any person or group that attempted to invade or annoy the colony. [FN271] The Governor also had the sole power to impose and administer martial law, to fortify strongholds, and to stockpile weapons. [FN272]
Interestingly, one of the few formal checks placed on the governor's military discretion was imposed by the declaration of war. For *220 example, some governors could not impose martial law without a declaration of war from England. [FN273] This again highlights the role of the declaration of war in eighteenth-century Anglo-American constitutional law as fundamentally one of defining legal relationships, especially at home. Only after a declaration of war could the governor take the domestic steps, such as infringing temporarily on colonists' rights or liberties, needed to fight a war.
These provisions also show that the governor's war powers had limits imposed by his subordinate position in the British governmental hierarchy. Governor Dinwiddie of Virginia, for example, could not very well declare war on France without the approval of the King. It does not appear that the declaration had to precede military operations, for a historical study uncovers only three declarations of war in the colonies, [FN274] even though the colonists engaged in almost constant hostilities with various Indian tribes (and other European settlers and troops) throughout the pre-Revolutionary period. [FN275] The declaration of war's main purpose lay not in authorizing military operations, but in triggering the governor's exercise of his domestic powers, such as the authority to impose martial law.
An absence of formal limits did not prevent the same type of political processes that checked the British monarch from constraining the colonial governors. Although this structure of government produced relative harmony in England by the mid-eighteenth century, it spawned the exact opposite in the colonies. According to Professor Bailyn, "[t]here was bitter, persistent strife within the provincial governments almost everywhere," particularly between the different branches of government. [FN276] As their brethren did in England, colonial legislators used their broad powers over the purse to inject themselves into all manner of policy making, including military and diplomatic affairs. [FN277] Assemblies passed legislation to man and equip the military, to define militiaman duties, and even to conduct military and diplomatic affairs with the Indians. Governors depended upon the assemblies for "temporary acts for the enforcement of the simplest military obligations," such as legislation defining how long a militiaman had to serve and what weapons he should have. [FN278] The history of the southern colonies is replete with *221 examples of legislatures using their powers to man, equip, and maintain the military, and to specify how, when, and where the governor could exercise force. [FN279]
Virginia provides an example of the manner in which colonial legislatures mimicked the English Parliament's use of its funding powers to influence military affairs. In passing appropriations for the military, Virginia's House of Burgesses regularly specified the number of soldiers to be called up, their duty stations, their officers, their pay, and their quota of ammunition. [FN280] The House even went so far as to direct the governor how to command the force. To keep checks on the governor's use of the army, the legislature established a special committee to advise the governor on military operations. By 1676, the Virginia legislature had assumed "a large part of the responsibility for all military operations within the colony." [FN281] As in England, the appropriations power bestowed upon the representative assemblies the ability to participate in issues of war and peace even in a frontier environment that could have otherwise encouraged deference to executive power.
In addition to the spending power, the colonists resorted to an added check on the executive branch because of the peculiar position of the governor in the structure of the British imperial system. Although the governor formally held the upper hand in the colonies, he, too, was subject to the higher authority of the Crown and its ministers in England. By the 1750s, the colonies had developed close communications with the political leadership in the mother country, links they used to appeal and overturn decisions by the colonial governors. [FN282]
B. The War Powers in the New State Constitutions
Despite checks on the governors' powers, the colonists turned against executive authority when they rebelled against Great Britain. The new state constitutions both placed explicit restrictions on the executive power and diluted the structural unity and independence of the executive as an institution. But these frameworks of government were significant not because they served as models for the 1787 Constitution, but because they contained mistakes to be avoided. As such, they provide valuable foils for interpreting our Constitution's war clauses.
Accepting the tenets of English Whig radicalism, the colonists believed that Great Britain, following the life cycle of other great empires, was abandoning freedom and liberty to become a land of tyranny. [FN283] *222 According to Whig thought, the English Constitution, as defined in the settlement of the 1688 Glorious Revolution, required that the three parts of government--Crown, Lords, and Commons--maintain their independence from one another. George III had sought to overturn this balance by extending his influence and patronage into Parliament. When the British government attempted after 1763 to place tighter controls on the colonies, the colonists saw the fulfillment of these predictions of tyranny. [FN284] Taxation without representation, the stationing of troops in Boston, and the institution of vice-admiralty courts were viewed by colonists as attempts to subvert the British Constitution and crush democracy in North America. [FN285]
1. Early Efforts to Rein in Executive Power
Antipathy toward the Crown found a powerful expression in the first constitutions drafted by the newly independent states. These documents not only show that the revolutionaries wanted to rein in executive power, but also demonstrate how they sought to do so. In this respect, the mechanisms chosen by the revolutionaries contrast sharply with the provisions of the Constitution of 1787. States began by eliminating the independence and unity of the governor's office. For example, in all but one state, the legislators elected the governor (often one of their own), which made the governor directly accountable to the assembly rather than to the People. [FN286]
States also limited the term and eligibility of the governor in an effort to reduce his power and influence. Most states either provided for the annual election of the governor, restricted the number of terms a governor could serve, or both. As the Maryland Constitution declared, "a long continuance, in the first executive departments of power or trust, is dangerous to liberty; a rotation, therefore, in these departments, is one of the best securities of permanent freedom." [FN287] States also eliminated the structural unity of the executive branch in an attempt to undermine executive power. Pennsylvania undertook the most radical *223 reform by replacing the single governor with a twelve-man executive council elected by, and responsible to, the People. [FN288] Other states reformed their executive branches by creating councils of state, which were appointed by the legislature for the purpose of advising the governor before he pursued a course of action. [FN289] The councils often made the governors "little more than chairmen of their executive boards." [FN290]
Historians of the presidency and of war powers have focused on these institutional changes to show that the revolutionaries planned to do away with a strong executive government. [FN291] These structural modifications, however, do not bear as much significance for our study because the Framers reversed many of them when they created the unitary presidency. [FN292] Instead, we must focus on the substantive powers the states gave to their executive branches. Despite the fragmentation of the executive as a unitary institution, the states still left many substantive powers in the hands of the executive branch, which would suggest that the Framers did not wish to a