FOR EDUCATIONAL USE ONLY

Copr. © West 2000 No Claim to Orig. U.S. Govt. Works

82 CNLLR 695

(Cite as: 82 Cornell L. Rev. 695)

Cornell Law Review

May, 1997

*695 FAME, THE FOUNDING, AND THE POWER TO DECLARE WAR

William Michael Treanor [FNd]

Copyright © 1997 Cornell University; William Michael Treanor

Almost without discussion, and essentially without opposition, the Framers and Ratifiers of the United States Constitution vested in Congress the "Power . . . To declare War, [and] grant Letters of Marque and Reprisal." [FN1] During the past fifty years, one of the fiercest controversies in constitutional law has concerned what the Founders meant by this grant. It is a debate that has had, and that continues to have, dramatic importance. When Presidents committed troops or prepared to commit troops in Korea, Vietnam, Grenada, Panama, Iraq, Somalia, Haiti, and, most recently, Bosnia, they claimed that the Constitution did not require them to seek explicit congressional approval for their actions. In each instance, critics proclaimed the Presidents' actions unconstitutional. [FN2] When Congress sought to control presidential warmaking by passing the War Powers Act of 1973, [FN3] defenders of the statute declared that it simply tracked the War Powers Clause. Presidents, however, have repeatedly claimed that the statute violates the Constitution, because they believe the War Powers Clause grants Congress only limited powers. [FN4] The same question has been at issue on each occasion: Does the Constitution give Congress alone the power to initiate conflict?

*696 The roster of scholars engaged in the controversy over the original understanding of the warmaking power reads like a who's who of constitutional scholars and scholars of foreign affairs. [FN5] On one side of the debate‑‑ the pro‑Congress side‑‑are such academics as Raoul Berger, [FN6] Alexander Bickel, [FN7] John Hart Ely, [FN8] Louis Fisher, [FN9] Harold Koh, [FN10] Leonard Levy, [FN11] Charles Lofgren, [FN12] Arthur Schlesinger, Jr., [FN13] and William Van Alstyne. [FN14] They have argued that the original understanding *697 was that, except for a limited power to repel sudden attacks, the President could not commit troops to combat without congressional authorization. They believe that modern constitutional law should reflect that understanding. In contrast, other scholars have adopted a pro‑Executive stance. These include Phillip Bobbitt, [FN15] Robert Bork, [FN16] Edward Corwin, [FN17] Henry Monaghan, [FN18] Eugene Rostow, [FN19] Robert Turner, [FN20] W. Michael Reisman, [FN21] and John Yoo, [FN22] among others. [FN23] The pro‑Executive scholars have argued either that the power to declare war was intended to be a very limited power‑‑conferring on Congress the power to classify a conflict as a war for purposes of international law [FN24] (rather than conferring on it the exclusive power to initiate conflict)‑‑*698 or that, for reasons unique to the War Powers Clause, original understanding is irrelevant to resolution of modern controversies. [FN25]

The debate has reached a point of stalemate. As Professor Stephen Carter concluded, "[E]vidence concerning the original understanding . . . does not come down firmly on one side or the other." [FN26] Although the evidence is limited‑‑with the critical part of the constitutional debates consisting of little more than a page of the published record [FN27] and subject to various plausible readings‑‑this is not the principal cause of the stalemate concerning the original understanding. Rather, the problem is that neither side is able to square its claims fully with the evidence that exists. To the extent that the Founders made statements about the war power, those statements support the view that Congress alone has the power to initiate conflict. [FN28] But pro‑Executive scholars can plausibly counter that historical context strongly supports their position. The phrase "declare war" had a fixed meaning in international law; it did not mean to start war, but rather to classify a conflict as a war for legal purposes. Accordingly, precedent in England and in this country suggests a "shared understanding" [FN29] that the Executive could start wars. To put it simply, the pro‑ Executive position is that pro‑Congress scholars have failed to explain why the Founders would have taken from the Executive the power to declare war. Given that failure, pro‑Executive scholars argue that the intent of the great majority of the Founders to have the President possess the power to start war must be given effect, regardless of the belief of a handful of individuals that Congress alone has that power.

There is, finally, one bit of evidence that neither side has explained convincingly. Numerous contemporaneous statements indicate that the decision to declare war was purely a congressional matter, which means that the President could not veto declarations of war. [FN30] This absence of a veto seems inconsistent with the view of pro‑Congress scholars that the Founders sought to slow the path to war as much as possible. Yet it is also inconsistent with the pro‑Executive view that the Founders were supportive of presidential involvement (and, generally, control) in all war matters.

*699 This Article breaks the stalemate by advancing an explanation for why the Founders would have wanted Congress alone to have the power to start war, the question that pro‑Congress scholars have been unable to answer. In offering that explanation, the Article takes a different approach than previous work, which has, in accordance with the normal conventions of legal and constitutional scholarship, explored the original understanding by focusing on what the Founders said about the allocation of the war power, the constitutional structure, the language used, and prior practice. Although this Article uses evidence of this type, it also seeks to employ the approaches of intellectual history, probing the structure of the founding generation's thoughts and the often implicit values that underlie the choices they made. [FN31] In pursuing this project, it will look not merely at the traditional sources directly concerning original understanding, but, more generally, at how political leaders in the early republic talked about war, government, and individual motivation.

This analysis brings to the forefront a subject of critical importance to the Framers as they created the Constitution, but one which constitutional law scholars have essentially ignored: the individual's desire to achieve immortal fame. Although the subject of the Framers' views of fame (using the term in the eighteenth century sense of one whom posterity will remember as great) has yet to receive close, sustained study, a number of historians, and in particular the late Douglass Adair, have shown how the Framers' actions and their political theory reflected their hope of achieving lasting renown. The Framers had, in Adair's words, "an almost obsessive desire for fame" [FN32]‑‑and they believed that such a desire was a widely‑shared *700 trait. But these historians have not attempted to show the relationship between the Founders' view of fame and the constitutional structure that they created. Similarly, constitutional scholars have not examined the subject, either with respect to the War Powers Clause or the document as a whole. They have thus wholly ignored the way in which the Framers' ideas about fame shaped the Constitution, a disregard which seriously distorts our perception of the original understanding. Piecing together sometimes implicit views, the Article argues that the allocation of the war power reflected the Framers' understanding of the desire for fame. The founding generation believed that, if the President could commit the nation to war, his desire for fame might lead him into war even when war was not in the national interest. [FN33] By contrast, however, individual members of Congress would not win fame if the nation went to war and won. Therefore, Congress alone could be trusted to decide questions of war correctly. Animated by their concern that Presidents would fall prey to the lure of fame, the Founders thus structured the war power in a way that conflicts with the original understanding of the War Powers Clause as articulated by previous scholarship. The Founders intended that the clause would vest in Congress principal responsibility for initiating conflict; in this regard, pro‑Congress scholars have been right and pro‑Executive scholars wrong. But the Founders denied the President a veto over congressional decisions to wage war, something that all scholars have missed. [FN34]

Part I of the Article outlines the background against which this work is set. It discusses the post‑World War II era's history of controversies about presidential authority to initiate conflict, the current debate among academics about the original understanding, and the ways in which the explanations that have been offered fail. Part II then begins the analysis of why Congress was given the sole power to start wars by discussing the Founders' conception of fame and the role of that conception in the constitutional order. Part III argues that the Founders' concern that a President's desire for immortal fame would lead him to start wars that were not in the national interest caused them to give Congress alone the power to start war. This Part begins with a close analysis of the way legislators spoke and wrote about war during the ratification debates. It then turns to the nation's first three crises involving the war power, focusing in each instance on how the desire for individual fame and the desire for war were linked in statements from the period. Indeed, in one of the examined documents, James Madison explicitly states that Congress was given the power to start war because a President would use that power too aggressively in *701 order to achieve fame. [FN35] This statement from the most important Founder dramatically supports the thesis of this Article concerning the original understanding.

Part IV then explores the contemporary significance of the historical analysis. For originalists, the evidence offered here is important because it greatly strengthens the case for a pro‑Congress reading of the Clause. It is also important because it suggests that the President should not be able to veto a declaration of war.

The thesis of this Article is significant for nonoriginalists as well. Although it does not try to treat the matter conclusively, Part IV presents evidence that, even though we no longer think of people as motivated by a thirst for fame in the eighteenth century sense, Presidents have, in fact, been so motivated. A range of historical accounts indicate that Presidents, in contemplating questions of war, have been motivated by a desire for fame. That desire may, in part, explain why throughout our history Presidents have typically been more in favor of initiating wars than Congress. Recognition of the motivational stakes in the war powers area indicates that courts' current application of the political question doctrine to avoid resolution of war powers controversies is misguided. Such a strategy rests on the false premise that this is an area in which Congress will struggle for control, when in fact this is an area in which Congress has an incentive to evade responsibility. More broadly, for nonoriginalists, recognition of the fact that the President has an incentive to favor war does not resolve the question of who should have the responsibility to decide questions of war. Rediscovery of the Founders' concern ultimately leads back to the two fundamental questions with which the Founders struggled and which have largely been forgotten: When does the desire for a place in history become dangerous? When does it, instead, inspire greatness?

I

The Debate about the War Powers Clause

The meaning of the War Powers Clause has long been the subject of bitter dispute, both in the realm of politics and in the realm of academia. This Part begins by presenting in summary fashion recent presidential military actions and congressional responses. Strikingly, *702 the Executive has grown more, not less, aggressive in recent years. [FN36] The Part then discusses the two principal schools of academic thought concerning the meaning of the War Powers Clause. It focuses on the ways in which they treat the original understanding and its significance, and concludes by discussing why neither school of thought has convincingly made its case.

A. The Executive Branch and the War Power Since the Korean War

Throughout most of this nation's history, Presidents did not claim that they could commit the nation to war without congressional authorization. [FN37] In 1950, for the first time, the Executive explicitly took the position that it did not need congressional authorization to send troops abroad to fight. [FN38] In justifying his decision to send United States troops into Korea, President Truman relied on a Security Council resolution. [FN39] Subsequently, after consulting with Secretary of State Dean Acheson, he decided not to seek congressional authorization, but to rely on his powers as President and Commander in Chief. [FN40] The Department of State issued a supporting memorandum of law. [FN41]

President Johnson's actions in Vietnam were, in contrast, almost modest. As in Korea, the Department of State formally took the position that the President needed no congressional support to send troops into combat. [FN42] Nonetheless, President Johnson could plausibly claim that he had secured congressional approval for every stage of *703 the Vietnam War through the Gulf of Tonkin Resolution; [FN43] Congress's 1967 declaration of "its firm intentions to provide all necessary support for members of the Armed Forces of the United States fighting in Vietnam"; [FN44] and congressional appropriation statutes. [FN45] Significantly, Dean Ely and Professor Henkin, despite their general criticism of executive branch overreaching in warmaking, have found this claim of congressional approval convincing. [FN46]

Recent history is very different. When President Reagan directed the invasion of Grenada in 1983, he simply acted "with respect to the conduct of foreign relations and as Commander‑in‑Chief of the United States Armed Forces" [FN47] without subsequently seeking congressional ratification of his actions. [FN48] Similarly, in 1986, he unilaterally ordered the bombing of a number of targets in Libya pursuant to his power as Commander in Chief. [FN49]

President Bush continued this trend. Without seeking congressional approval, he sent 24,000 troops into Panama to oust the government of General Manuel Noriega. [FN50] Later, as the Bush administration prepared for the Gulf War, it initially took the position that it would not secure congressional approval. [FN51] Although it ultimately reversed its course and obtained authorization for the commencement of hostilities, [FN52] President Bush repeatedly proclaimed that he did not need that congressional sanction to send troops into combat. At one point he declared, "I didn't have to get permission from some old goat in the United States Congress to kick Saddam Hussein out of Kuwait." [FN53]

*704 The election of a Democratic President in 1992 did not cause the trend to abate. At the end of his administration, President Bush sent United States troops to Somalia as part of a United Nations relief effort. In June 1993, when twenty‑three Pakistani soldiers were killed in Somalia, President Clinton, without seeking congressional authorization, altered the nature of the relief effort by ordering United States military action against Mohamed Farah Aideed, the Somali political leader whom the United Nations believed was responsible for the killing. [FN54] The President simply announced that, in response to the killing of the Pakistani soldiers, the United States mission in Somalia had become a military one. [FN55]

The following year, President Clinton prepared to send troops into Haiti to oust that country's military junta without receiving congressional sanction. [FN56] He stated, "Like my predecessors of both parties, I have not agreed that I was constitutionally mandated" to secure congressional approval before military intervention. [FN57] United States troops were on the verge of invasion when former President Jimmy Carter negotiated an agreement under which Haitian leaders resigned. [FN58] In some regards, however, Bosnia represents an even more dramatic assertion of executive authority over the military. Troops were deployed into a war zone pursuant to the President's Commander‑in‑Chief power, [FN59] not only without congressional approval, *705 but over the clearly and repeatedly expressed objections of the House of Representatives. [FN60]

Congress's principal check on the military power of the Executive has been the War Powers Resolution, [FN61] which was passed in 1973 over President Nixon's veto. [FN62] The resolution provides that the President must notify Congress within forty‑eight hours of the start of combat involving American troops and that, unless Congress authorizes hostilities, he or she must withdraw those troops within sixty days (a time period that can be extended to ninety days upon appropriate presidential certification). [FN63] The measure explicitly presents itself as reflecting the constitutional dictates according to the original understanding, not as altering either the constitutional powers of Congress or of the President. It states that "[i]t is the purpose of this chapter to fulfill the intent of the framers of the Constitution of the United States." [FN64]

Presidents have seen the matter differently. In his veto message, President Nixon denounced the resolution as an unconstitutional infringement on his powers as Commander in Chief and as violative of *706 the original understanding. [FN65] Nixon's response has served as the model for subsequent presidential action. As Professor Michael Paulsen has written, "No President has accepted the 1973 War Powers Resolution as binding, on the ground that it unconstitutionally interferes with the President's powers as Commander‑in‑Chief." [FN66] Since 1973, Presidents committing United States troops to combat have repeatedly failed to notify Congress or have filed a report which was intentionally not identified as a hostilities report (and which therefore, according to executive branch officials, did not start the War Powers Resolution's sixty day clock). [FN67] In the face of Executive actions reflecting the view that the Resolution is unconstitutional, Congress has failed to muster anything remotely resembling an effective response. It has neither denied funding to any of these military efforts nor legislatively proclaimed that, despite the fact that the President has not filed a required hostilities report, the sixty day clock was triggered. [FN68]

B. Competing Interpretations of the War Powers Clause

Given the ongoing real‑world controversy about the meaning of the War Powers Clause and the enormous stakes involved in such controversy, it is hardly surprising that, since the start of the Vietnam War, the academic debate about the meaning of the War Powers Clause has been one of the most prominent in constitutional law. Two sharply divergent readings of the Clause have emerged, and scholars have justified each reading as consistent with the original understanding.

Defenders of a broad Executive power to initiate combat have claimed that the Framers intended that the War Powers Clause be *707 read narrowly. [FN69] Under this view, when the Framers gave Congress the power to "declare war," they intentionally used a term with a precise meaning in international law, a meaning familiar to them from their reading of Blackstone [FN70] and such civil law scholars as Grotius [FN71] and Vattel. [FN72] Dean Rostow, a leading proponent of this view, has written:

Under international law, force may be used between states both in time of war and in time of peace. . . . A "declaration of war" transforms the relationship between the belligerents into a state of war. . . . The state of war contemplates unlimited hostilities between *708 the belligerents, the internment or expulsion of enemy aliens, the termination of diplomatic relations, the sequestration or even confiscation of enemy property, and the imposition of regulations‑‑censorship, for example‑‑which would be unthinkable in liberal‑minded states during peacetime. [FN73]

In other words, the power to declare war is a quasi‑judicial power: Congress determines whether to make a legal declaration that a state of war exists. Such a determination is significant, since a declaration has important consequences for the rights of both citizens and aliens. But the declaration typically follows the onset of hostilities, rather than preceding them, and the declaration is not necessary to legalize the hostilities themselves. [FN74]

Similarly, when the Founders gave Congress the power to "grant Letters of Marque and Reprisal," [FN75] they were also using "language . . . peculiar to international law," [FN76] and, again, that language had a precise, and limited, meaning. Sovereigns granted letters of marque and reprisal to individuals allowing them to pursue specific claims against citizens of other countries. [FN77] These people were thereby authorized to take the property‑‑and sometimes, even seize the persons‑‑of their debtors and those who had wronged them. In wartime, the letters empowered civilians to capture the property of the enemy and her citizens. [FN78] But the power to grant letters of marque and reprisal was not the power to start war. [FN79] For proponents of this view, then, the power to initiate conflict is not to be found solely‑‑or even primarily‑‑in the War Powers Clause. Rather, it is to be found in the Constitution's designation of the President as Commander in Chief [FN80] and, in addition, in its grant to him or her of all executive power. [FN81]

Proponents of the pro‑Congress reading of the War Powers Clause offer a diametrically opposed reading of the original understanding. They reject the idea that the phrases in the Clause were intended to be read in the established, technical sense. According to *709 Professor Charles Lofgren, for example, the word "declare" as used in the Constitution "had a broader meaning than it did in the treatises and international practice. It meant 'commence."' [FN82] Similarly, the phrase "Letters of Marque and Reprisal" "conferred on Congress power over general reprisals outside the context of declared war." [FN83] Most important, the two phrases were meant to be read together. [FN84] They are the only two specific grants of war‑initiating power in the Constitution. [FN85] Thus, regardless of how they are parsed individually, together they mean that the Founders intended Congress to have the power to initiate all conflict‑‑except when necessary to repel sudden attacks. In this regard, it should be stressed that pro‑Congress originalists do not maintain that all wars had to be formally declared, merely that they be approved in advance in some fashion. As Dean Ely writes, "[A]ll wars, big or small, 'declared' in so many words or not . . . had to be legislatively authorized." [FN86]

Under this view, the Founders were not ignorant of the fact that the phrases they used had specific meanings at international law. They knew, moreover, that by the eighteenth century most wars were not declared‑‑as Hamilton wrote in Federalist No. 25, "[T]he ceremony of a formal denunciation of war has of late fallen into disuse . . . ." [FN87]‑‑and letters of marque and reprisal were rarely issued. [FN88] But, as Professor Lofgren observed, "[D]eviation from international usage [with respect to these terms] would have seemed proper . . . since the Constitution involved domestic arrangements." [FN89] According to Professor Bestor, "[T]he phrase 'declare war' [in the Constitution] was universally understood as synonymous with what the Articles of Confederation had described as [Congress's] 'sole and exclusive right and power of determining on . . . war."' [FN90]

Pro‑Executive scholars have a counter to such claims (apart from offering their competing vision of the original understanding). These writers contend that, even if the pro‑Congress camp is correct about the original understanding of the War Powers Clause, that understanding should not bar Presidents from initiating conflict. The argument *710 is not that original intent is never relevant, but that it is irrelevant here for reasons unique to the War Powers Clause.

The first "unique" reason advanced is that, regardless of the original understanding, the President's ability to initiate and conduct war without explicit congressional approval is constitutional because of long‑standing practice. For example, J. Terry Emerson, after stating that there are over two hundred incidents in which Presidents have initiated the use of military force abroad, concludes that "'history has legitimated the practice of presidential war‑making."' [FN91] Emerson follows Henry Monaghan, who notes "the long and ever‑accumulating practice of presidential 'war‑making"' and observes that "[a] practice so deeply embedded in our governmental structure should be treated as decisive of the constitutional issue." [FN92]

A closely‑related second reason is that this practice reflects broader constitutional concerns that have become more pressing with the passage of time. Thus, Judge Bork argues that the President has "primacy in foreign affairs," and that primacy is the joint product of constitutional structure and historical evolution: "The respective roles of Congress and the president developed according to their structural capacities and limitations. Congress, consisting of 535 members assisted by huge staffs, is obviously incapable of swift, decisive, and flexible action in the employment of armed force . . . ." [FN93] Because *711 situations change so rapidly and dangers to the national well‑being arise almost instantaneously, necessity dictates that the Executive have the power to use force abroad without congressional approval. As Judge Bork has argued, "The need for Presidents to have that power, particularly in the modern age, should be obvious to almost anyone." [FN94]

In contrast, pro‑Congress scholars have not been as quick to argue that their reading of the War Powers Clause is superior, even if not supported by the original understanding. Ely's treatment here is illustrative. The saliency he accords to the original understanding in framing his proposal for contemporary jurisprudence is similar to that accorded the original understanding by, for example, Professors Glennon, [FN95] Koh, [FN96] and Henkin. [FN97] Ely offers three closely‑related reasons which he suggests animated the Founders and support giving Congress the power to initiate war. First, and most important, the requirement of congressional consent ensures that "the concurrence of a number of people of various points of view" has been obtained before the nation goes to war. [FN98] (Ely explicitly assumes here that the War Powers Clause also requires that the President consent before the nation go to war). [FN99] Second, large bodies move more slowly, ensuring careful consideration before war begins. [FN100] Third, "[t]he requirement of authorization by both houses of Congress was . . . calculated to increase the probability that the American people would support any war we entered into." [FN101] But the focus of his argument is not that these rationales are independently correct. Rather, it is that, because the original understanding is clear, it must be followed. He writes:

One of the recurrent discoveries of academic writing about constitutional law‑‑an all but certain ticket to tenure‑‑is that from the standpoint of twentieth‑century observers, the "original understanding" of the document's framers and ratifiers can be obscure to the point of inscrutability. Often this is true. In this case, however, it isn't. [FN102]

Because of its clarity, the original intent is dispositive: "In language and recorded purpose the War Clause made an unmistakable point *712 that needed no further gloss: Acts of war must be authorized by Congress." [FN103]

Thus, the question is squarely presented: Who is right about the original understanding? And is the underlying rationale that informed the Founders' decisionmaking one that merits serious independent regard, or is it merely one that merits respect to the extent that the original understanding merits respect?

The next section examines the evidence to which scholars typically attach the greatest significance‑‑the debates at the Philadelphia constitutional convention and the state ratifying conventions. The section focuses on what the words "To declare War" meant. There was almost no debate in Philadelphia on the Commander‑in‑Chief Clause or the phrase "letters of marque and reprisal." [FN104] Neither generated much concern. To the extent that there was discussion, the Commander‑in‑Chief Clause received more. [FN105] According to both pro‑Executive and pro‑Congress writers, [FN106] the most influential comments about the Commander‑in‑Chief Clause were made by Alexander Hamilton and James Iredell, both of whose statements reflect a view of the Commander‑in‑Chief power as limited to commanding troops once war is in progress. [FN107] At the same time, these comments do not represent*713 a sufficient quantity of evidence to reveal clearly the meaning of the Commander‑in‑Chief Clause or, by inference, the meaning of the War Powers Clause.

C. The Framing of the War Powers Clause

Although the War Powers Clause has become the source of extensive controversy, it received very limited discussion at the time of the founding. Moreover, as discussed below, the critical passage in the debates at the Constitutional Convention is obscure and confusing. Thus, the documents on which scholars traditionally focus in their quest to determine the original understanding of constitutional text provide only limited insight.

The initial discussion at the Constitutional Convention concerning the war power occurred in response to the plan of government submitted by Edmund Randolph of Virginia. The Virginia plan did not address the question of who should be able to commit the nation to war; it merely allocated to the "National Legislature . . . the Legislative Rights vested in Congress by the Confederation" and assigned to the "National Executive . . . the Executive rights vested in Congress by the Confederation." [FN108] The question of which powers were executive and which were legislative was left open. A number of speakers urged that the war power be given to Congress. While South Carolina's Charles Pinckney proclaimed himself an advocate of a "vigorous Executive," he declared that he "was afraid the Executive powers of [the existing] Congress might extend to peace & war." [FN109] James Wilson argued that the "Prerogatives of the British Monarch [were not] a proper guide in defining the Executive powers." [FN110] "Some of these prerogatives," he stated, "were of a Legislative nature. Among others that of war & peace &c." [FN111] James Madison "agree[d with] Wilson in his difinition [sic] of executive powers‑‑executive powers ex vi termini, do not include the Rights of war & peace &c. but the powers [should] be confined and defined‑‑if large we shall have the Evils of elective Monarchies." [FN112] Finally, John Rutledge of South Carolina announced that "he was not for giving [the Executive] the power of war *714 and peace." [FN113] No one argued that the Executive should have the power to initiate war. [FN114]

The Convention subsequently created the Committee on Detail and assigned to it the task of preparing a constitution that reflected the decisions previously made. [FN115] None of the resolutions forwarded to the Committee, however, provided guidance in allocation of the war‑initiating function. [FN116] At the same time, as indicated above, to the extent the matter had been debated, the consensus had been that the power to initiate war should be a legislative function. Moreover, Wilson and Randolph submitted draft constitutions that gave the legislature the power "to make war." [FN117] Reflecting these points of view, the Committee's final report assigned Congress the sole power "To make war; To raise armies; To build and equip fleets;" as well as "To call forth the aid of the militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions." [FN118] The Convention debated the proposed War Powers Clause on August 17, 1787. Although the account of what was said‑‑the account recorded in Madison's notes‑‑is brief, the debate was apparently the most sustained discussion of the proper allocation of the power to declare war. Therefore, this short and cryptic interchange tends to be the focus of modern academic discussion about the original understanding. [FN119] Although it is clear that one participant in that debate, South Carolina's Pierce Butler, [FN120] thought that the President should have the *715 power to make war, the intent of virtually every other participant is subject to dispute.

According to Madison's notes, following Butler's comment, he and Elbridge Gerry "moved to insert 'declare,' striking out 'make' war; leaving to the Executive the power to repel sudden attacks." [FN121] This motion is the critical moment in the debates and has inspired dramatically different readings. Ely, for example, contends that it makes clear that the President has the power under the Commander‑in‑Chief Clause to assume "tactical control" of military operation that had already received congressional authorization, and that it "reserved to the president the power, without advance congressional authorization, to 'repel sudden attacks."' [FN122] Thus, the change did not take from Congress the sole power to start wars, except in case of emergency created by "sudden attacks." In contrast, pro‑Executive scholars see this amendment as departing from the original proposal and granting the President the power to start wars; they minimize the significance of the phrase "leaving to the Executive the power to repel sudden attacks." Thus, Professor Yoo contends that "to repel sudden attacks" was seen as establishing the floor of executive power under the amended clause, not its ceiling: "Adopting the amendment made clear that the President could not unilaterally take the nation into a total war, but that he might be able to engage the nation in hostilities short of that." [FN123]

Following the motion of Gerry and Madison, Connecticut's Roger Sherman stated that the original language "stood very well. The executive [should] be able to repel and not to commence war. 'Make' better than 'declare' the latter narrowing the power too much." [FN124] Thereby, on a pro‑Executive reading, Sherman asserted his view "that the President already had the power to respond to attacks, and that reducing Congress' power to that of declaring war would permit the Executive to commence wars unilaterally." [FN125] A pro‑Congress reading is simply that Sherman feared that the new language would, by narrowing Congress's power, in some unspecified way, increase the power of the Executive. [FN126]

Gerry then said that he "never expected to hear in a republic a motion to empower the Executive alone to declare war." [FN127] The standard pro‑ Congress reading is that he is responding to Butler's comment *716 that the President should be able to make war. [FN128] Thus, Gerry is using "declare" as synonymous with "make." [FN129] The problem with this view is that it breaks the sequence‑‑Sherman, not Butler, was the speaker before Gerry‑‑and Butler was not addressing the motion that was on the floor at the time of Gerry's speech. Thus, it would seem odd for Gerry to be responding to Butler. On the other hand, Professor Yoo argues that Gerry thought that Sherman was seeking to give the President the power to declare war (in the sense of declaring war under international law), and was asserting that he was appalled that anyone would suggest that the President should have such a power. [FN130] But, as Yoo acknowledges, [FN131] this reading is based on Gerry's complete misunderstanding of Sherman. Although Sherman's statement can be read in different ways, there is nothing in Madison's notes that would indicate that Sherman wanted to expand presidential power. [FN132]

Neither the pro‑Congress nor the pro‑Executive reading is necessarily wrong. After all, people misunderstand each other all the time and they frequently address the comments of someone other than the previous speaker. But each reading is problematic. And so the record provided by Madison‑‑both with respect to Gerry's comment and, more generally, with respect to the debate as a whole‑‑does not tell us with any certainty what the Convention understood itself to be doing when it voted eight to two (with one abstention) to substitute "declare" for "make." [FN133] Professor Jack Rakove has recently suggested an explanation for the unsatisfying record of this debate. [FN134] He notes that the War Powers Clause was discussed toward the end of the proceedings *717 in Philadelphia. [FN135] Weary delegates were no longer carefully articulating their positions, and Madison was no longer carefully recording them. [FN136]

In addition to arguing that the debates in Philadelphia support their view, pro‑Congress scholars also highlight statements made during the ratification debates in the states, which they believe demonstrate that the power to declare war was the power to initiate conflict. [FN137] The most powerful statement from this perspective is one made by James Wilson at the Pennsylvania ratifying convention:

This [new] system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our national interest can draw us into a war. [FN138]

As Lofgren writes, in this statement Wilson "not only implicitly equated declaring war and entering war, but also explicitly foreclosed exercise of the power by the President acting alone." [FN139] Others at the state conventions equated Congress's power over war under the Constitution with its power under the Articles of Confederation, and thus implicitly indicated that Congress was retaining the power to initiate conflict. As Robert Livingston declared at the New York convention: "But, say the gentlemen, our present [Articles of Confederation] Congress have not the same powers [as Congress would have under the Constitution]. I answer, They have the very same . . . [including] the power of making war. . . ." [FN140]

*718 In contrast, there are apparently no statements in which the term "declare War" as used in the Constitution is clearly defined by reference to international law. [FN141] But this absence is far from dispositive. A number of pro‑Congress scholars‑‑although not all [FN142]‑‑have acknowledged that their evidence, while probative, is not sufficient to decide the question. As Lofgren candidly observes of his reading of the clause, "[O]ne cannot pretend that the matter is beyond all doubt." [FN143] Similarly, W. Taylor Reveley III, the author of War Powers of the President and Congress, perhaps the most thorough treatment of the war power, concludes that the records of the Constitutional Convention are "inconclusive" and that they "are not sharpened by available accounts of the ratification debates." [FN144]

*719 Not surprisingly, pro‑Executive scholars find this evidence unconvincing, in part because only a few speakers equate the power to declare war and the power to initiate conflict, but also because many of the statements quoted above are unreliable indicia of what the Constitution meant. Thus, Yoo suggests that Livingston's statement equating the new and old Congress's power reflected a "misunderstanding [that] may have occurred due to a failure to read the new Constitution carefully . . . ." [FN145] Wilson's statement, in contrast, is clear, and he was obviously familiar with the Constitution's text as a result of his service as a delegate at the Philadelphia Convention. It is nonetheless possible to argue that his statements only reflect his view, and that he is a "dissenter from the prevailing Federalist view on war powers." [FN146] Therefore, Professor Yoo, a sophisticated pro‑Executive scholar, argues not that all the Founders thought that the President could initiate war, but that this was the dominant view. [FN147] Of course, if all that the pro‑Executive camp could do was criticize and minimize the evidence offered by the pro‑Congress camp, the case for a pro‑Executive reading of the Clause would not be very substantial‑‑particularly in view of the absence of statements directly supporting that reading. But pro‑Executive scholars have advanced a strong independent argument: the Founders operated against a background in which there was a "shared understanding" [FN148] that the Executive had the power to start war, and pro‑Congress scholars have failed to offer convincing evidence that the Founders departed from that understanding. This argument and the inability of pro‑Congress scholars to respond to it or to another type of evidence that challenges their thesis‑‑evidence that the President did not have a veto over declarations of war‑‑are discussed in the next section.

D. The Case against the Pro‑Congress Reading of the War Powers Clause

Pro‑Executive scholars have advanced a number of contextual arguments favoring their reading of the War Powers Clause. Knit together, these arguments powerfully suggest that, in the absence of some countervailing consideration not previously uncovered by scholars, the Founders would not have given Congress alone the power to initiate war.

The first point, and the point that has been treated as central by pro‑ Executive scholars, has already been discussed. [FN149] The terms used *720 in the War Powers Clause‑‑declarations of war and letters of marque and reprisal‑‑were terms that had a particular meaning under international law. The power to declare war was a quasi‑judicial function, and letters of marque and reprisal had a limited role. The Founders knew these meanings and presumably relied on them when they used these terms. As Dean Rostow explains, "The language . . . can only be understood in the setting of international law." [FN150] "[W]hy," J. Terry Emerson asks, "if the framers meant to make the Executive no more than the 'agent' of the Legislature in matters of military affairs, did they not say so in clear words . . . ?" [FN151]

Second, English precedent accorded the Executive the power to initiate war. Professor Yoo writes:

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. . . . 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. [FN152]

Third, the writers to whom the Founders looked on separation of powers matters‑‑John Locke, William Blackstone, and Montesquieu‑‑all believed that the Executive should have responsibility for starting and carrying on war. [FN153]

Fourth, the majority of state constitutions that preceded the Federal Constitution "either assumed that the governors had broad war‑making authority, or explicitly gave them such power in terms reminiscent of the British constitution and the colonial charters." [FN154]

Fifth, as former Secretary of State William Rogers has argued, the Founders believed that the Executive was distinguished by its capacity to act swiftly, vigorously, and secretly, attributes that they recognized were of peculiar value in the realm of foreign affairs. [FN155]

Sixth, the Federal Constitution vested in the Executive powers that the first state constitutions, departing from English and colonial precedent, had given to the legislature. [FN156] "[A]n impartial review of the history of this early period," Terry Emerson observes, "reveals that the attitudes of the majority of persons who wrote the state constitutions *721 had undergone a change from an initial dread of the royalty in the 1770's to a perception of the need for a strong executive by the 1780's." [FN157]

Taken together, these factors suggest that it would be profoundly surprising for the Founders to have granted Congress the power to initiate conflict. For them to believe that such a decision was appropriate, there would have had to have been some concern causing them to turn against the great tide of constitutional history. In general, the first state constitutions took from the Executive his traditional powers; the Constitution gave them back. [FN158] To allocate the war power to Congress alone would have been directly countercyclical‑‑taking from the Executive a power that was so much a core Executive function that even anti‑Executive state constitutions had allocated it to him.

Moreover, each of the points made by pro‑Executive scholars is historically accurate. The power to start war was historically an Executive function, and this was an allocation supported by the thinkers who influenced the Founders. Blackstone was unambiguous in describing British practice. "[T]he King," he wrote, "has also the sole prerogative of making war and peace." [FN159] "[W]ar 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." [FN160] Locke believed that this was the proper assignment of the power, [FN161] and Montesquieu similarly assigned to the Executive the power to start and conduct war. [FN162] The *722 Founders also recognized that the President possessed certain attributes of obvious value in war. As Hamilton explained, "Decision, activity, secrecy, and dispatch will generally characterise the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number . . . ." [FN163]

It is also true that the first state constitutions, enacted in the initial flush of independence, had vested in the legislatures powers traditionally held by the Executive. [FN164] This system of governance gave many of the Framers an appreciation of the importance of limiting legislative power. Accordingly, as Gordon Wood observed, the Federal Constitution represented a "repudiation" [FN165] of the first state constitutions because the Federal Constitution gave the President traditional executive functions which the state governors had been denied. [FN166] There is, however, a complicating factor regarding the pro‑Executive trend that pro‑Executive scholars have not addressed: although it is true that the first state constitutions gave the Governor substantial authority over war matters, the later constitutions, surprisingly, assigned the Governor less such power. For example, South Carolina and Virginia, the two states that in the 1770s enacted constitutions with clauses specifically allocating war power, involved the Governor in the exercise of that power. [FN167] Virginia's 1786 constitution *723 was similar. [FN168] However, the two other state constitutions from the 1780s that contained provisions concerning starting war‑‑the Maryland Constitution of 1780 and the New Hampshire Constitution of 1784‑‑gave the power to initiate war to the legislature alone. [FN169] Moreover, the Massachusetts Constitution, despite the fact that it generally created a strong Executive, gave the legislature the power to appoint army and navy officers. [FN170] Thus, the history of the revolutionary era state constitutions suggests that treatment of war functions was counter‑cyclical to the overall trend in separation of powers.

This point supports a pro‑Congress reading of the War Powers Clause, but it is hardly conclusive. It merely leads us back to the larger question created by the factors stressed in pro‑Executive scholarship: Why might the Framers, at a time in which they were taking so many powers from the Legislature, give Congress alone the power to start war? In explaining why the Founders gave the power to initiate war to Congress, pro‑Congress scholars have highlighted a simple explanation. In the words of Dean Ely, requiring congressional approval before the nation went to war, reflected "a determination not to let such decisions be taken easily." [FN171] Similarly, Professors Firmage and Wormuth observed, "The legislative branch was purposely given the war power as a check upon the impulsive use of military force by the executive," [FN172] and Professor Bickel argued that "the Framers of the Constitution intended . . . to make it harder [to start wars]." [FN173]

Pro‑Congress scholars point to a number of statements made by the Founders as an indication that, because the Founders believed presidents would be war‑ prone, they designed the Constitution to make war less likely by circumventing the Executive and granting Congress sole warmaking power. As previously noted, Wilson wrote that "[t]his system will not hurry us into war . . . . It will not be in the power of a single man . . . to involve us in such distress . . . ." [FN174] Similarly, Madison wrote Jefferson: "The constitution supposes, what the History of all . . . [Governments] demonstrates, that the Ex[ecutive] is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the *724 Legisl[ature]." [FN175] Jefferson wrote Madison that the system gave an "effectual check to the Dog of war," [FN176] and early treatise‑writer William Rawle opined that "every possible precaution should be used before a nation is plunged into [war]." [FN177]

Yet the question remains why the Founders would have thought this an area in which the President was less prudent than Congress‑‑given that they repeatedly stated in a range of other contexts that it was legislative abuses of power that most needed to be guarded against. [FN178] Moreover, why did they think that the path to war had to be slowed? Perhaps because most of the pro‑Congress literature is shaped by an explicit or unstated view that the war in Vietnam was a tragic mistake, [FN179] it is typically assumed that the Founders would have wanted to avoid war. But the Founders themselves engaged in warfare with some frequency. Not only had the new republic fought successfully for independence in the Revolutionary War, but before it was twenty‑five years old, it had engaged in a series of wars with Native Americans; launched military actions against the Barbary states; and fought the world's two most formidable military powers‑‑France, in the undeclared naval "Quasi‑War" of 1798 to 1800, and Great Britain, in the War of 1812. [FN180] Given early America's apparent proclivity for armed conflict, it cannot simply be assumed that, even if the Founders thought the President was particularly likely to lead the nation into war, they would have thought such inclination was a bad thing. Thus, some explanation is required as to why they would have thought that the President was too likely to lead the nation to war.

This Part has so far focused on the evidentiary weaknesses of the pro‑ Congress reading of the Constitution. However, one significant evidentiary problem undermines the positions advanced by both pro‑Congress and pro‑ Executive scholars: the fact that relevant evidence strongly indicates that the predominant view was that the President did not have the power to veto declarations of war. Early statements about the War Powers Clause repeatedly feature the assertion that the decision to declare war is Congress's alone, and that the Executive has *725 no role in the matter. For example, in 1793 George Washington wrote, "The Constitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject and authorized such a measure." [FN181] During the same year, James Madison similarly declared that it was "the simple, the received and the fundamental doctrine of the constitution, that the power to declare war . . . is fully and exclusively vested in the legislature; that the executive has no right, in any case to decide the question, whether there is or is not cause for declaring war . . . ." [FN182] Furthermore, while President, Jefferson acknowledged that "Congress alone is constitutionally invested with the power of changing our condition from peace to war." [FN183] In fact, Chief Justice Marshall ruled that "[t]he whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this inquiry [of whether 'war' existed]." [FN184]

Also significant are President John Adams's actions regarding the Quasi‑War with France and the legislature's response to them. In 1798, the Federalist congressional caucus debated whether to seek a vote of Congress declaring war against France‑‑a declaration that Adams, a Federalist, opposed. Adams's position against a declaration of war; the motions on the floor of Congress in favor of a declaration of war; and the abandonment of those motions after the caucus's vote not to pursue war have been frequently discussed. [FN185] Strikingly, there *726 is no mention in any of this material of the possibility of a presidential veto of a congressional decision to declare war. This implies that it was understood that the President did not have the power to veto declarations of war. Presumably, if anyone thought that the President had such veto power, that fact would have entered into the discussions of whether Congress should declare war over the President's opposition. Furthermore, when Congress debated whether to declare war, numerous legislators stated that the decision whether to go to war was Congress's alone. For example, Congressman Sitgreaves declared:

The House know[s] that, by the distribution of powers under this Government, it is only competent for Congress to declare the country in war; therefore, until that declaration is made by this department, the Executive and Judiciary cannot act in the same way as if the country was at war. [FN186]

Made in the teeth of presidential opposition, such statements strongly suggest a belief that the President had no role of any kind‑‑including a veto‑‑ in the decision whether to declare war.

Moreover, in his 1812 message asking Congress for a declaration of war, President Madison made clear that the decision about whether to declare war was, under the Constitution, purely a matter for Congress:

Whether the United States shall continue passive under these progressive usurpations and these accumulating wrongs, or, opposing force to force in defense of their national rights, shall commit a just cause into the hands of the Almighty Disposer of Events . . . is a solemn question which the Constitution wisely confides to the legislative department of the Government. In recommending it to their early deliberations I am happy in the assurance that the decision will be worthy the enlightened and patriotic councils of a virtuous, a free, and a powerful nation. [FN187]

*727 The day after Congress voted to declare war, Madison issued "A Proclamation," which asserted that the United States was in a state of war because of congressional action:

Whereas the Congress of the United States, by virtue of the constituted authority vested in them, have declared by their act bearing date the 18th day of the present month that war exists between the United Kingdom of Great Britain and Ireland and the dependencies thereof and the United States of America and their Territories . . . . [FN188]

Surprisingly, given the wealth of literature on the original intent of the War Powers Clause, no scholar has argued that the original understanding was that the President could not veto a declaration of war. This is particularly striking because modern scholars have argued on textualist grounds that the War Powers Clause means precisely what it says‑‑that "Congress shall have power . . . To declare War"‑‑and the President cannot veto such declarations. [FN189] Only two scholars, Dean Ely and Gregory Sidak, have even raised the possibility that the original understanding was that the President could not veto declarations of war, and they dismiss the possibility rapidly. [FN190] Instead, they argue on purely textual ground that declarations of war fall within Article I, Section 7, Clause 3 of the Constitution, the Presentment Clause, which requires that every congressional "Order, Resolution, or Vote" be presented to the President for his signature or veto. [FN191] The problem with this argument is that the Framers understood the Presentment Clause narrowly. That is, if all congressional orders, resolutions, and votes must be presented to the President, this presumably applies, not just to declarations of war, but also to congressional proposals for constitutional amendments. However, in the 1798 case Hollingsworth v. Virginia, [FN192] the one early Presentment Clause case, the Supreme Court rejected the claim that the Eleventh *728 Amendment was invalid because it had not been signed by the President. The Court observed that the Presentment Clause "applies only to the ordinary cases of legislation . . . ." [FN193] A congressional declaration of war, like a congressional decision to propose amendments, would seem to fall outside the category of "ordinary cases of legislation."

The other principal piece of evidence on which Ely and Sidak rely is that Madison signed the declaration of war against England which Congress passed in 1812. [FN194] But Presidents sign documents for political reasons‑‑even when they know the signature has no legal consequence‑‑in order to highlight a personal endorsement. For example, despite Hollingsworth, on the eve of the Civil War, President Buchanan signed the congressionally‑approved Corwin Amendment, which would have barred subsequent amendments banning slavery, [FN195] and President Lincoln signed the Thirteenth Amendment after it was approved by Congress in 1865. [FN196] The real question is not whether Madison signed the declaration, but what significance he attached to that signing. Evidence of Madison's intent can be found in his previously‑quoted message to Congress and his proclamation following the declaration of war. Neither document is discussed by Ely or Sidak. Both documents, however, clearly state that the decision whether to go to war is purely congressional. According to Madison's war message, "[T]he Constitution wisely confides [the decision about whether to go to war] to the legislative department of the Government." [FN197] And, according to Madison's proclamation, "[The Members of] Congress . . . have declared [war] by their act." [FN198] The President is not part of the process. Ely's and Sidak's position is further undercut by the evidence concerning the 1798 controversy over whether to go to war with France (a subject that neither discusses). [FN199]

That previous commentators‑‑both pro‑Congress and pro‑Executive‑‑have not even raised the issue of a presidential veto may reflect the fact that, under either view of the original understanding, it would make no sense for the President to be without veto power. If the Founders sought to ensure that the President was intimately involved in all matters of foreign policy, as pro‑ Executive scholars maintain, he *729 should obviously have been equipped with veto power over warmaking decisions. Similarly, if the Founders sought to slow the path to war by constructing all possible barriers to war, as pro‑ Congress scholars maintain, a presidential veto would be one obvious barrier.

The remainder of this Article seeks to answer the question posed in this Part: Why would the Founders have given Congress the power to initiate war at the same time they denied the President a veto over those declarations? There are several reasons why the Founders might not have wanted to give the President much, if any, power over the decision whether to go to war. In addition, examination of the Founders' writings suggests that the continuing power of English oppositionist thought likely influenced the structuring of the War Powers Clause. That ideology made the Founders particularly fearful that unconstrained Executive control of the military would enable the President to seize power directly or to undermine the system of government indirectly through his use of patronage and the financial assets at his disposal. [FN200] However, this factor was at least as much a concern at the start of the Revolution as it was at the time of the Federal Constitution, yet to the extent that they dealt with the matter, the first state constitutions involved the Governor in the warmaking decision. [FN201] Therefore, an additional explanation is needed for why the Founders might have become convinced that the President should be excluded from the decision to go to war, even as he was being re‑invested with so many powers. In offering such an explanation, this Article will turn to a topic whose relationship to the War Powers Clause has gone wholly unexplored‑‑the Framers' conception of fame.

[FNd]. Associate Professor, Fordham Law School. B.A., Yale, 1979; A.M., Harvard, 1982; J.D., Yale, 1985. In writing this Article, I accumulated substantial intellectual debts. I particularly thank Tom Alpert, Akhil Amar, Mary Sarah Bilder, Victor Brudney, Bill Casto, Bryce Denno, Debby Denno, Christine Desan, Neil Devins, Jill Fisch, Terry Fisher, Martin Flaherty, Jim Fleming, Abner Greene, Tracy Higgins, Morton Horwitz, Jim Kainen, Laura Kalman, John McGinnis, Greg Mark, Judge John Noonan, Jack Rakove, John Phillip Reid, Dan Richman, Howard Shapiro, Terry Smith, Gene Sperling, Lloyd Weinreb, John Yoo, and Ben Zipursky. Earlier versions of this Article were presented at the Harvard Law School legal history speakers' program; at the annual meeting of the Pacific Coast branch of the American Historical Association; and at a Fordham faculty colloquium. I am grateful to the participants in those sessions for their observations. Delon Abrams, Sean Hayes, Michael Roll, David Roth, and Caroline Sorokoff provided superb research assistance. The Library of Congress graciously made available its collections, and Fordham Law School generously provided research assistance.

[FN1]. U.S. Const. art. I, § 8, cl. 11.

[FN2]. These controversies concerning presidential warmaking are discussed infra Part I.A.

[FN3]. 50 U.S.C. §§ 1541‑48 (1994).

[FN4]. For a discussion of the debate concerning the War Powers Resolution, see infra Part I.A.

[FN5]. This Article approaches the question of original understanding from two perspectives. First, in light of the ongoing academic and political debate about the original understanding of the War Powers Clause‑‑a debate in which the relevance of the original understanding is often treated as a given‑‑the Article re‑examines the question of what the Founders intended. Second, wholly apart from whether the original understanding is binding as a matter of constitutional law, the Article asks whether the original understanding of the War Powers Clause is sensible in today's world, and whether we can learn anything from the Founders' concerns. For further discussion, see infra Part IV. The underlying jurisprudential question of the extent to which the original understanding binds modern interpretations of the Constitution is discussed in these contexts, but it is not a separate focus of the Article. The discussion of the significance of original intent builds on and synthesizes earlier writings of mine discussing some particular part of the original understanding question. See William Michael Treanor, The Case of the Prisoners and the Origins of Judicial Review, 143 U. Pa. L. Rev. 491, 544‑56 (1994) [hereinafter Treanor, Judicial Review] (describing significance of original understanding to Founders in construing Constitution); William M. Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 Colum. L. Rev. 782, 855‑80 (1995) [hereinafter Treanor, Takings Clause] (arguing for translation model of original understanding); William M. Treanor, Taking the Framers Seriously, 55 U. Chi. L. Rev. 1016, 1023‑40 (1988) [hereinafter Treanor, Framers] (book review) (explaining the relevance of Founders' worldview); William M. Treanor & Gene B. Sperling, Prospective Overruling and the Revival of "Unconstitutional" Statutes, 93 Colum. L. Rev. 1902, 1942‑43 (1993) (analyzing original understanding and changing constitutional meaning).

[FN6]. See Raoul Berger, War‑Making by the President, 121 U. Pa. L. Rev. 29 (1972).

[FN7]. See Alexander M. Bickel, Congress, the President and the Power to Wage War, 48 Chi.‑Kent L. Rev. 131 (1971).

[FN8]. See John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath 3‑10, 139‑52 (1993).

[FN9]. See Louis Fisher, Presidential War Power (1995).

[FN10]. See Harold Hongju Koh, The National Security Constitution: Sharing Power after the Iran‑Contra Affair 74‑77 (1990).

[FN11]. See Leonard W. Levy, Original Intent and the Framers' Constitution 30‑53 (1988).

[FN12]. See Charles A. Lofgren, On War‑Making, Original Intent, and Ultra‑Whiggery, 21 Val. U. L. Rev. 53 (1986); Charles A. Lofgren, War‑Making Under the Constitution: The Original Understanding, 81 Yale L.J. 672 (1972) [hereinafter Lofgren, Understanding].

[FN13]. See Arthur M. Schlesinger, Jr., The Imperial Presidency 1‑26 (1973).

[FN14]. See William Van Alstyne, Congress, the President, and the Power to Declare War: A Requiem for Vietnam, 121 U. Pa. L. Rev. 1 (1972). For other leading accounts that are similar in approach to those mentioned in the text, see Edward Keynes, Undeclared War: Twilight Zone of Constitutional Power 31‑40 (1982); W. Taylor Reveley III, War Powers of the President and Congress: Who Holds the Arrows and Olive Branch? 50‑115 (1981); Abraham D. Sofaer, War, Foreign Affairs and Constitutional Power: The Origins 25‑38 (1976); Francis D. Wormuth et al., To Chain the Dog of War: The War Power of Congress in History and Law 17‑28 (1986); Arthur Bestor, Separation of Powers in the Domain of Foreign Affairs: The Intent of the Constitution Historically Examined, 5 Seton Hall L. Rev. 527, 555‑613 (1974); Francis L. Coolidge, Jr. & Joel David Sharrow, The War‑Making Powers: The Intentions of the Framers in the Light of Parliamentary History, 50 B.U. L. Rev. 5 (special issue) (Spring, 1970); Note, Congress, the President, and the Power to Commit Forces to Combat, 81 Harv. L. Rev. 1771 (1968).

[FN15]. See Philip Bobbitt, War Powers: An Essay on John Hart Ely's War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath, 92 Mich. L. Rev. 1364, 1370‑1388 (1994) (book review).

[FN16]. See Robert Bork, Foreword to The Fettered Presidency: Legal Constraints on the Executive Branch at ix (L. Gordon Crovitz & Jeremy A. Rabkin eds., 1989) [hereinafter Bork, Foreword]; Robert Bork, Erosion of the President's Power in Foreign Affairs, 68 Wash. U. L.Q. 693, 698 (1990) [hereinafter Bork, Erosion].

[FN17]. See Edward S. Corwin, The President: Office and Powers, 1787‑1984, at 234, 256 (5th ed. rev. 1984).

[FN18]. See Henry P. Monaghan, Presidential War‑making, 50 B.U. L. Rev. 19 (special issue) (Spring, 1970).

[FN19]. See Eugene V. Rostow, Great Cases Make Bad Law: The War Powers Act, 50 Tex. L. Rev. 833, 864‑66 (1972) [hereinafter Rostow, Great Cases]; Eugene V. Rostow, "Once More unto the Breach:" The War Powers Resolution Revisited, 21 Val. U. L. Rev. 1, 6 (1986) [hereinafter Rostow, Once More].

[FN20]. See Robert F. Turner, Repealing the War Powers Resolution: Restoring the Rule of Law in U.S. Foreign Policy 80‑81 (1991).

[FN21]. See W. Michael Reisman, Some Lessons from Iraq: International Law and Democratic Politics, 16 Yale J. Int'l L. 203, 212 (1991).

[FN22]. See John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167 (1996).

[FN23]. See, e.g., John Lehman, Making War: The 200‑year‑old Battle Between the President and Congress Over How America Goes to War 60 (1992); Ann Van Wynen Thomas & Aaron J. Thomas, The War‑Making Powers of the President: Constitutional and International Law Aspects 8 (1982); Department of State, Office of the Legal Adviser, The Legality of United States Participation in the Defense of Viet Nam, 75 Yale L.J. 1085, 1101 (1966) [hereinafter Office of the Legal Adviser]; J. Terry Emerson, The War Powers Resolution Tested: The President's Independent Defense Power, 51 Notre Dame Law. 187, 204‑13 (1975) [hereinafter Emerson, War Powers Resolution]; J. Terry Emerson, War Powers Legislation, 74 W. Va. L. Rev. 53, 72 (1971) [hereinafter Emerson, War Powers Legislation]; Patrick O. Gudridge, Ely, Black, Grotius and Vattel, 50 U. Miami L. Rev. 81 (1995); Patrick D. Robbins, The War Powers Resolution After Fifteen Years: A Reassessment, 38 Am. U. L. Rev. 141, 146‑50 (1988); William P. Rogers, Congress, the President, and the War Powers, 59 Cal. L. Rev. 1194 (1971); Lee A. Casey & David B. Rivkin, Jr., In Constitutional Interpretation, Read the Framers' Words, Legal Times, Oct. 3, 1994, at 24.

[FN24]. See, e.g., Bobbitt, supra note 15, at 1375; Emerson, War Powers Resolution, supra note 23, at 211‑13; Rostow, Once More, supra note 19, at 6; Yoo, supra note 22, at 295.

[FN25]. See, e.g., Bork, Erosion, supra note 16, at 698; Bork, Foreword, supra note 16, at x; Reisman, supra note 21, at 212; Rostow, Once More, supra note 19, at 48.

[FN26]. Stephen L. Carter, The Constitutionality of the War Powers Resolution, 70 Va. L. Rev. 101, 111 (1984). See also Bobbitt, supra note 15, at 1374 ("[U]nlike other constitutional disputes, the partisans [of competing positions on the clause] appear to find each of their own points decisive and dispute the validity of all of their opponents' claims ....").

[FN27]. See 2 The Records of the Federal Convention of 1787, at 318‑19 (Max Farrand ed., rev. ed. 1986) [hereinafter Farrand].

[FN28]. For discussion of the relevant statements, see infra Part I.C.

[FN29]. Yoo, supra note 22, at 263.

[FN30]. See infra text accompanying notes 181‑201.

[FN31]. Thus, there is a greater emphasis here on context and ideology than there is in standard legal history analyses of original understanding. My approach starts with the premise that, in determining who the founding generation thought should have the power to start war, it is helpful to look at their general views about war and human personality, rather than focusing exclusively on what they explicitly said about allocation of the warmaking power. This broader approach is particularly helpful here because the traditional sources are so slight. The difference between an historian's approach to interpretive questions and the approach traditionally used by legal scholars is incisively probed in Laura Kalman, The Strange Career of Legal Liberalism 167‑236 (1996), and Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L.J. 1725, 1745‑55 (1996). It should be noted, however, that when historians have turned to questions of legal history, they have generally applied the approach of legal scholars, rather than that of intellectual historians. That is, they have devoted relatively little attention to ideology and context. The treatment of the original understanding of the War Powers Clause by Professor Lofgren, who is an historian, is an example of this practice. Although Lofgren's work is the most convincing treatment of the subject to date, it is still limited by the fact that it looks almost exclusively at the types of sources on which lawyers focus, such as statements about the War Powers Clause made at the constitutional convention and at the state ratifying conventions, English precedent, and early practice. See Lofgren, Understanding, supra note 12.

[FN32]. Douglass Adair, Fame and the Founding Fathers, in Fame and the Founding Fathers 3, 7 (Trevor Colbourn ed., 1974).

[FN33]. See infra Part III.

[FN34]. See infra text accompanying notes 181‑201, 380‑81.

[FN35]. See James Madison, "Helvidius" Number 4, in 15 The Papers of James Madison 106, 108 (Robert Rutland et al. eds., Virginia University Press 1985) [hereinafter Madison Papers]. Madison wrote:

It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle. The strongest passions, and most dangerous weaknesses of the human breast; ... the honorable or venial love of fame, are all in conspiracy against the desire and duty of peace.

Id. See also infra text accompanying notes 309‑18.

[FN36]. For example, President Johnson had a legitimate claim to congressional authorization for the Vietnam War, while Presidents Reagan, Bush, and Clinton, in contrast, have repeatedly either sent troops into combat without congressional authorization or been prepared to do so. See infra text accompanying notes 42‑68.

[FN37]. For relevant presidential statements, see Reveley, supra note 14, at 277‑85; Thomas & Thomas, supra note 23, at 31‑35; Francis D. Wormuth, The Vietnam War: The President versus the Constitution, in 2 The Vietnam War and International Law 711 (Richard A. Falk ed., 1969); Lawyer's Memorandum, Indochina: The Constitutional Crisis, 116 Cong. Rec. 15,410‑16 (1970).

[FN38]. See Ely, supra note 8, at 10.

[FN39]. See President Truman, U.S. Air and Sea Forces Ordered into Supporting Action (June 27, 1950), in Dep't St. Bull., July 3, 1950, at 5.

[FN40]. See Schlesinger, supra note 13, at 131‑33.

[FN41]. Department of State Memorandum Authority of President to Repel the Attack in Korea (July 3, 1950), in Dep't St. Bull., July 31, 1950, at 173, 173 ("The President, as Commander in Chief of the Armed Forces of the United States, has full control over the use thereof....[T]he President's power to send the Armed Forces outside the country is not dependent on Congressional authority ....").

[FN42]. See Office of the Legal Adviser, supra note 23, at 1101 ("The Constitution leaves to the President the judgment to determine whether the circumstances of a particular armed attack are so urgent and the potential consequences so threatening to the security of the United States that he should act without formally consulting the Congress.").

[FN43]. H.R.J. Res. 1145, Pub. L. No. 88‑408, 78 Stat. 384 (1964).

[FN44]. Act of Mar. 16, 1967 Pub. L. No. 90‑5, § 401, 81 Stat. 5, 6.

[FN45]. See, e.g., Defense Appropriation Act of 1970, Pub. L. No. 91‑171, § 638, 83 Stat. 486 (1969); H.R.J. Res. 447, Pub. L. No. 89‑18, 79 Stat. 109 (1965).

[FN46]. See Ely, supra note 8, at 12‑46; Louis Henkin, Foreign Affairs and the Constitution 101‑02 (1972).

[FN47]. Ronald Reagan, Letter to the Speaker of the House and the President Pro Tempore of the Senate on the Deployment of United States Forces in Grenada (Oct. 25, 1983), 1983 Pub. Papers: Ronald Reagan 1512, 1513.

[FN48]. See Fisher, supra note 9, at 141‑42.

[FN49]. See Ronald Reagan, Letter to the Speaker of the House of Representatives and the President Pro Tempore of the Senate on the United States Air Strike Against Libya (Apr. 16, 1986), 1986 Pub. Papers: Ronald Reagan 478, 478.

[FN50]. See Louis Henkin, The Invasion of Panama under International Law: A Gross Violation, 29 Colum. J. Transnat'l L. 293, 293‑94, 298 (1991).

[FN51]. See Secretary of Defense Dick Cheney, Testimony at Hearing of the Senate Armed Services Committee, Federal News Service, Dec. 3, 1990, available in LEXIS, News Library, Script File.

[FN52]. See Authorization for Use of Military Force Against Iraq Resolution, Pub. L. No. 102‑1, 105 Stat. 3, 3‑4 (1991).

[FN53]. Remarks of President George Bush Before the Texas State Republican Convention, Federal News Service, June 20, 1992, available in LEXIS, News Library, Script File. For further statements that congressional support was not necessary to launch a military attack against Iraq, see George Bush, Remarks at Dedication Ceremony of the Social Sciences Complex at Princeton University in Princeton, New Jersey, 27 Weekly Comp. Pres. Doc. 589, 590 (May 10, 1991); George Bush, Statement on Signing the Resolution Authorizing the Use of Military Force Against Iraq, 27 Weekly Comp. Pres. Doc. 48 (Jan. 14, 1991).

[FN54]. See Fisher, supra note 9, at 153‑54.

[FN55]. See id. at 153. Under pressure from Congress, President Clinton agreed to withdraw all troops from Somalia by March 31, 1994, and he carried out that agreement. See id. at 154.

[FN56]. For discussion of the preparation of an invasion of Haiti and subsequent events, see id. at 154‑57.

[FN57]. Presidential News Conference: Health Care, Haiti and Crime Transcript of President Clinton's News Conference at the White House, N.Y. Times, Aug. 4, 1994, at A16. Assistant Attorney General Walter Dellinger justified the sending of troops to Haiti in a more limited way, arguing, among other things, that the deployment of troops would not be "war" in the constitutional sense because "a 'war' does not exist where United States troops are deployed at the invitation of a fully legitimate government in circumstances in which the nature, scope, and duration of the deployment are such that the use of force involved does not rise to the level of 'war."' Walter Dellinger, After the Cold War: Presidential Power and the Use of Military Force, 50 U. Miami L. Rev. 107, 115 (1995). See also Word for Word: A President's Ability to Declare War, N.Y. Times, Sept. 30, 1994, at A29 (Office of Legal Counsel letter offering legal basis for troop deployment in Haiti). Neither house explicitly opposed the invasion. After the Security Council passed a resolution on July 31, 1994 urging the removal of the Haitian government, however, the United States Senate unanimously voted that that resolution "does not constitute authorization for the deployment of United States Armed Forces in Haiti under the Constitution of the United States or pursuant to the War Powers Resolution." 140 Cong. Rec. S10,415, 10,433, 10,510 (daily ed. Aug. 3, 1994).

[FN58]. Elaine Sciolino, On the Brink of War, a Tense Battle of Wills, N.Y. Times, Sept. 20, 1994, at A1.

[FN59]. See Donald L. Robinson, Who Has the Power to Put U.S. Troops in Harm's Way?, Christian Sci. Monitor, Dec. 19, 1995 (discussing President Clinton's "insist[ence] that he did not need congressional approval to enforce the Dayton Agreement"); Congressional Approval Not Needed for Bosnia Force, White House Says, Chi. Trib., Oct. 9, 1995, § 1 at 3 (quoting White House Chief of Staff Leon Panetta as stating that "[President Clinton] believes that, like all other presidents, he is not about to give up on his prerogatives as commander in chief.").

[FN60]. On October 30, 1995, the House passed a sense of the House resolution stating that "no United States Armed [F]orces should be deployed ... until the Congress has approved such a deployment." H.R. Res. 247(2), 104th Cong., 1st Sess., 141 Cong. Rec. H11398 (daily ed. Oct. 30, 1995). On November 17, the House passed a bill providing that, in the absence of future specific appropriations, the United States was not to use government funds to support United States troops in Bosnia. See H.R. Res. 2606, 104th Cong., 1st Sess., 141 Cong. Rec. H13,233 (daily ed. Nov. 17, 1995) (enacted). After troops were deployed, the Senate passed a resolution that expressed "reservations ... about President Clinton's decision to deploy United States Armed Forces," but, since the mission had begun, sanctioned it provided that the United States would lead an effort to arm Bosnian Muslims and that United States troops would leave Bosnia within "approximately one year." S.J. Res. 44, 104th Cong., 1st Sess., 141 Cong. Rec. S18552 (daily ed. Dec. 13, 1995). The resolution was not intended as support for the underlying policy; Senator Bob Dole, its co‑sponsor, declared, "[W]e oppose the decision to deploy troops." Id. at S18550. The House was even more critical of the President's actions. It passed a resolution deploring the fact that "[d]espite the expressed will of the House of Representatives..., the President has chosen to proceed with the deployment of approximately 20,000 members of the United States Armed Forces" and formally declared "opposition to the President's policy." H.R. Res. 302, 104th Cong., 1st Sess., 141 Cong. Rec. H14849 (daily ed. Dec. 13, 1995).

For an excellent and detailed account of presidential activity in the years since the Second World War, see Fisher, supra note 9, at 70‑161.

[FN61]. 50 U.S.C. §§ 1541‑48 (1994).

[FN62]. See Text of President Nixon's Message Vetoing the War Powers Resolution [hereinafter Nixon Veto], reprinted in Reveley, supra note 14, at 293‑97.

[FN63]. See 50 U.S.C. § 1544(b) (1994).

[FN64]. Id. § 1541(a). The statute asserts that the Constitution permits the President to commit troops to combat on his own authority only where an attack upon American territory or against American troops creates "a national emergency." Id. § 1541(c).

[FN65]. See Nixon Veto, supra note 62, at 293, 295.

[FN66]. Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217, 267 (1994).

[FN67]. See John O. McGinnis, Constitutional Review by the Executive in Foreign Affairs and War Powers: A Consequence of Rational Choice in the Separation of Powers, 56 Law & Contemp. Probs. 293, 315‑22 (1993) (discussing executive branch nullification of resolution). See also Ely, supra note 8, at 49 (listing the war in Indochina, the Iranian rescue effort of 1980, the sending of troops to Lebanon in 1982‑1983, the invasion of Grenada in 1983, the Gulf of Sidra incident and Tripoli bombing of 1986, the 1987‑1988 Persian Gulf War against Iran, and the invasion of Panama in 1989 as instances in which Presidents should have, but did not, file hostilities reports). For examples of presidential reports, see Text of President Ford's Mayaguez Report of May 15, 1975, reprinted in Reveley, supra note 14, at 301‑03; Text of President Carter's Iran Report of April 26, 1980, reprinted in Reveley, supra note 14, at 303‑06; Report of President George Bush (Dec. 21, 1989), in Thomas M. Franck & Michael J. Glennon, Foreign Relations and National Security Law 596‑97 (2d ed. 1993).

[FN68]. See Yoo, supra note 22, at 182. Whether the War Powers Resolution could be revised in such a way as to be made effective is a matter for debate. Compare Ely, supra note 8, at 63‑66 (suggesting how the Resolution could be amended to make it effective) with Bobbitt, supra note 15, at 1371, 1397‑1400 (rejecting the War Powers Resolution as an "absurd failure").

[FN69]. See, e.g., Bobbitt, supra note 15, at 1375‑76; Emerson, War Powers Resolution, supra note 23, at 211‑13; Rostow, Once More, supra note 19, at 5‑7; Yoo, supra note 22, at 193‑94.

[FN70]. For Blackstone, conflict could begin without a declaration of war. In particular, issuance of letters of marque and reprisal created an "incomplete state of hostilities." 1 William Blackstone, Commentaries *250. The declaration of war served a limited, although important, role: "[I]n 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." Id. Blackstone thus treated the declaration of war as the culminating step with respect to conflict between nations.

[FN71]. Grotius observed that "most wars are begun without declaration of war." Hugo Grotius, On the Rights of War and Peace 318 (William Whewell trans., abr. ed. 1853) (citing Dio Chrysostom). The declaration was necessary for certain "peculiar effects," id. at 319, such as to authorize seizure of the property of foreign nationals. See id. at 318.

[FN72]. Like Grotius, Vattel concluded that not all wars had to be declared, though his treatment differed from Grotius's, see supra note 71, since Vattel took the position that in some situations declarations of war were necessary to begin hostilities legitimately. Vattel wrote, "He who is attacked and only wages defensive war, needs not to make any hostile declaration ...." Emmerich de Vattel, The Law of Nations 316 (Joseph Chitty ed., 1861). Thus, a declaration of war was not necessary to respond to attack. Pro‑Executive scholar J. Terry Emerson has suggested that Vattel distinguished between "wars of aggression and conquest," which required declarations of war, and defensive wars, which did not require such declarations. See Emerson, War Powers Resolution, supra note 23, at 212. This, however, was not the distinction that Vattel himself drew. For Vattel, nondefensive wars‑‑the wars which required a declaration of war‑‑were those in which the nation had not been attacked, but in which justice nonetheless dictated going to war. "The right of making war," Vattel began his chapter on declarations of war,

belongs to nations only as a remedy against injustice: it is the offspring of unhappy necessity. This remedy is so dreadful in its effects, so destructive to mankind, so grievous even to the party who has recourse to it, that unquestionably the law of nature allows of it only in the last extremity,‑‑ that is to say, when every other expedient proves ineffectual for the maintenance of justice.

Vattel, supra, at 314. Although Emerson suggests that Vattel thought that declarations of war were the means by which wars of "aggression and conquest" were sanctioned, see Emerson, War Powers Resolution, supra note 23, at 212 & n.131, Vattel believed that unjust wars violated natural law, writing that "in order to be justifiable in taking up arms, it is necessary ... [t]hat we have a just cause of complaint." Id.

Vattel agreed with Grotius that declarations of war had important juridical consequences: "Without such a public declaration of war, it would, in a treaty of peace, be too difficult to determine those acts which are to be considered as the effects of war, and those that each nation may set down as injuries of which she means to demand reparation." Id. at 316.

[FN73]. Rostow, Once More, supra note 19, at 6.

[FN74]. For more extensive development of this argument, see Bobbitt, supra note 15, at 1396‑1400; Emerson, War Powers Resolution, supra note 23, at 211‑ 12; Rostow, Once More, supra note 19, at 3‑18; Yoo, supra note 22, at 204‑08.

[FN75]. U.S. Const. art I, § 8, cl. 11.

[FN76]. Rostow, Once More, supra note 19, at 6.

[FN77]. See Yoo, supra note 22, at 250‑51.

[FN78]. See id.

[FN79]. See id. at 206.

[FN80]. See U.S. Const. art. II, § 2, cl. 1.

[FN81]. See id. art. 2, § 1, cl. 1. Pro‑Executive scholars do maintain, however, that the Framers did not intend for Congress to be powerless to check the President, since they gave it the power "to raise and support armies," id. art. I, § 8, cl. 12, and the power of the purse, id. art. I, § 8, cl. 1‑ 2, 5. See Bobbitt, supra note 15, at 1388‑1400; Emerson, War Powers Resolution, supra note 23, at 201‑03; Rostow, Once More, supra note 19, at 14‑ 15; Yoo, supra note 22, at 209‑10.

[FN82]. Lofgren, Understanding, supra note 12, at 695.

[FN83]. Id. at 696.

[FN84]. See, e.g., Fisher, supra note 9, at 2‑3.

[FN85]. Proponents of the pro‑Congress reading argue that the Commander‑in‑ Chief Clause was intended to give the President control over the military only after war has commenced. See Fisher, supra note 9, at 9‑12.

[FN86]. Ely, supra note 8, at 3 (footnote omitted).

[FN87]. The Federalist No. 25, at 161 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

[FN88]. See, e.g., Ely, supra note 8, at 3, 140 n.5; Bestor, supra note 14, at 608‑09; Lofgren, Understanding, supra note 12, at 694‑97.

[FN89]. Lofgren, Understanding, supra note 12, at 695.

[FN90]. Bestor, supra note 14, at 608 (alteration in original) (quoting Arts. of Confed. art. IX).

[FN91]. Emerson, War Powers Legislation, supra note 23, at 72 (quoting with approval Monaghan, supra note 18, at 29). Proponents of this view disagree on the precise number of such incidents. Writing a few years before Emerson, the Office of the Legal Adviser for the Department of State justified President Johnson's activities in Vietnam by asserting more modestly that there were 125 instances of presidential warmaking. See Office of the Legal Adviser, supra note 23, at 1101. Critics of this view both contest its history and the underlying theory. Dean Ely thus argues that "post‑ratification practice in violation of the Constitution [cannot] change it," and that "the original constitutional understanding was quite consistently honored from the framing until 1950." Ely, supra note 8, at 10. For other criticisms of the view that there was a pattern of executive‑initiated conflict prior to the Korean War, see Schlesinger, supra note 13, at 133; Wormuth et al., supra note 14, at 140‑ 49; W. Taylor Reveley III, Presidential War‑Making: Constitutional Prerogative or Usurpation?, 55 Va. L. Rev. 1243, 1258 (1969).

[FN92]. Monaghan, supra note 18, at 31.

[FN93]. Bork, Foreword, supra note 16, at x. Explicitly embracing Judge Bork's position, Professor W. Michael Reisman has similarly declared that original intent should not control the meaning of the War Powers Clause: "The Constitution is part of our constitutive process in which we determine how to establish and maintain our fundamental decision‑making institutions so that they can provide liberty, security, and the fulfillment of other constitutional goals in ways optimally consistent with historic values but responsive to contemporary exigencies." Reisman, supra note 21, at 212. See also Ely, supra note 8, at 143 n.24 (stating that Judge Bork's view of War Powers Clause "seems out of accord with [his] usual strongly argued 'original intent' approach to constitutional interpretation"). Dean Rostow has advanced an argument similar to Judge Bork's. See Rostow, Once More, supra note 19, at 48 ("The problem facing the nation is to fashion and refashion the Presidency and Congress as responsible and cooperative institutions capable of carrying out a foreign policy adequate to the security needs of our times and of the forseeable future.").

[FN94]. Bork, Erosion, supra note 16, at 698.

[FN95]. See Michael J. Glennon, Constitutional Diplomacy 80‑84 (1990).

[FN96]. See Koh, supra note 10, at 69‑79.

[FN97]. See Henkin, supra note 46, at 32‑35.

[FN98]. Ely, supra note 8, at 4.

[FN99]. See id.

[FN100]. See id.

[FN101]. Id.

[FN102]. Id. at 3.

[FN103]. Id. at 10.

[FN104]. The principal discussion of the Commander‑in‑Chief Clause at the Philadelphia convention occurred when the convention considered the Committee on Detail's proposal, under which the President had equal command over the Army and Navy of the United States, and of the Militia of the Several States. See 2 Farrand, supra note 27, at 426. Roger Sherman moved that the Commander‑in‑ Chief Clause be amended to provide that the President would only have control of the state militia "when called into the actual service of the [United States]" and his proposal was adopted. Id. (emphasis omitted). This comment about control of state militia is of little relevance to contemporary debates. As for the letters of marque and reprisal, the record is even slighter, the only significant comment being Elbridge Gerry's assertion, with reference to a list of legislative powers that "something [ought to be] inserted concerning letters of marque, which he thought not included in the power of war." Id. at 326.

[FN105]. See supra note 104 (summarizing relevant discussion on both topics).

[FN106]. Compare Lofgren, Understanding, supra note 12, at 685‑86 (focusing on Iredell and Hamilton), with Yoo, supra note 22, at 277‑78 (same).

[FN107]. Hamilton contrasted the King's powers as Commander in Chief with those of the President, which he described as "much inferior" to the King's:

[The President's power as Commander in Chief] would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the confederacy[;] while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies; all which by the Constitution under consideration would appertain to the Legislature.

The Federalist No. 69, at 465 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). Similarly, in discussing the President's Commander‑in‑Chief powers, Iredell stated:

A very material difference may be observed between this power, and the authority of the king of Great Britain under similar circumstances. The king of Great Britain is not only the commander‑in‑chief of the land and naval forces, but has power, in time of war, to raise fleets and armies. He has also authority to declare war. The President has not the power of declaring war by his own authority, nor that of raising fleets and armies. These powers are vested in other hands. The power of declaring war is expressly given to Congress ....

4 The Debates in the Several State Conventions 107‑08 (Jonathan Elliot ed., 1907) [hereinafter Elliot].

[FN108]. 1 Farrand, supra note 27, at 21.

[FN109]. Id. at 64‑65 (alteration in original).

[FN110]. Id. at 65.

[FN111]. Id. at 65‑66. See also id. at 73‑74 ("Mr. Wilson said the great qualities in the several parts of the Executive are vigor and dispatch. Making peace and war are generally determined by Writers on the Laws of Nations to be legislative powers.").

[FN112]. Id. at 70.

[FN113]. Id. at 65.

[FN114]. The only other participant in the Convention to make relevant statements at this point in the debates concerning the scope of the executive power was Roger Sherman. Apparently concurring in the prevailing sentiment that the Executive should not have power over war and peace, Sherman responded to Pinckney's expressions of concern by stating that he saw the Executive "as nothing more than an institution for carrying the will of the Legislature into effect." Id.

[FN115]. See 2 Farrand, supra note 27, at 85.

[FN116]. William Paterson also formally submitted a plan to the Committee but, similar to Randolph's plan, it did not allocate the power to initiate war. See 1 Farrand, supra note 27, at 242‑45 (Paterson's plan). Alexander Hamilton offered a third plan of governance, although, unlike Randolph and Paterson, he did not make a formal proposal. In general, Hamilton envisioned an extremely powerful Executive. Indeed, a few years later, as the author of the Pacificus letters, Hamilton was to take an expansive view of the Executive's war powers. See infra Part III.B. But in his speech he did not argue that the Executive should have the power to start wars. Rather, while the Executive was "to have the direction of war when authorized or begun," Hamilton urged, without offering an explanatory justification, that the Senate "have the sole power of declaring war." 1 Farrand, supra note 27, at 292.

[FN117]. See 2 Farrand, supra note 27, at 143 (Randolph's draft plan); id. at 168 (Wilson's draft plan).

[FN118]. Id. at 182.

[FN119]. See id. at 314‑19.

[FN120]. Butler argued that the power "to make war" should be given to the President "who will have all the requisite qualities, and will not make war but when the Nation will support it." Id. at 318.

[FN121]. Id.

[FN122]. Ely, supra note 8, at 5.

[FN123]. Yoo, supra note 22, at 264.

[FN124]. 2 Farrand, supra note 27, at 318.

[FN125]. Yoo, supra note 22, at 262.

[FN126]. See Lofgren, Understanding, supra note 12, at 676.

[FN127]. 2 Farrand, supra note 27, at 318.

[FN128]. See Ely, supra note 8, at 3.

[FN129]. See Bestor, supra note 14, at 603‑04.

[FN130]. See Yoo, supra note 22, at 262‑63.

[FN131]. See id. at 262.

[FN132]. Philip Bobbitt offers another pro‑Executive reading of the text: Gerry is responding to Sherman's appeal for "make," rather than "declare," by suggesting that use of the word "make" would have the consequence of giving the President the power to declare war (again, using the term as it is used in international law). Bobbitt, supra note 15, at 1380‑81. But this reading necessarily requires that Gerry engaged in hyperbole and indirection. Sherman had very clearly not made "a motion to empower the Executive alone to declare war." 2 Farrand, supra note 27, at 318.

[FN133]. Even the actual vote is unclear, and that is significant as well. Madison indicates that the original vote was seven in favor, two against, one abstention, and that Ellsworth changed his vote (and hence Connecticut's vote) when Rufus King said "that 'make' war might be understood to 'conduct' it which was an Executive function." 2 Farrand, supra note 27, at 319 n.*. This suggests that, once Ellsworth understood that the change was needed to make clear that Congress would not have tactical command of the military after it had authorized combat, he shifted his vote. The official record indicates, in contrast, that the change was originally defeated 5 to 4, but that on re‑vote, it passed eight to one. See id. at 314. This would suggest that King's comment was not simply important to Ellsworth, but to the critical swing voters. See Lofgren, Understanding, supra note 12, at 676‑77; Yoo, supra note 22, at 264 & n.475.

[FN134]. See Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 83‑84 (1996).

[FN135]. See id.

[FN136]. See id.

[FN137]. It should be added that, as a matter of constitutional interpretation, these statements are more significant than the statements made during the constitutional convention, although the scholarly controversy about the war power tends to focus on the Philadelphia debates. To the extent that the founding generation thought original understanding relevant to constitutional interpretation, it was the understanding of the ratifiers, who made the Constitution law, not the understanding of the participants at Philadelphia, whose deliberations were secret. The classic statement on point is Madison's: "As the instrument came from [the Philadelphia convention], it was nothing more than a draught of a plan, nothing but a dead letter, until life and validity were breathed into it, by the voice of the people, speaking through the several state conventions." James Madison, Jay's Treaty: Speech in the House of Representatives (Apr. 6, 1796), in 16 Madison Papers, supra note 35, at 296. See also Rakove, supra note 134, at 339‑65; Charles A. Lofgren, The Original Understanding of Original Intent?, 5 Const. Commentary 77 (1988); H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985); Treanor, Judicial Review, supra note 5, at 544‑ 52.

[FN138]. 2 Elliot, supra note 107, at 528.

[FN139]. Lofgren, Understanding, supra note 12, at 685.

[FN140]. 2 Elliot, supra note 107, at 278. See also 3 id. at 259 (Madison).

A number of Antifederalists took the position that the Constitution vested in Congress the power to initiate war and criticized the Constitution for this reason. For example, at the Virginia debates Patrick Henry bemoaned the fact that "Congress can both declare war and carry it on, and levy your money, as long as you have a shilling to pay." Id. at 172. In making his argument, Henry highlighted the distinction between the United States Constitution and English practice since, under the latter, "[t]he King declares war; the House of Commons gives the means of carrying it on." Id. at 172. For other examples of Antifederalist objections to the fact that Congress possessed both the powers of purse and sword, see 2 id. at 374‑77 (John Lansing, Jr. & Melancton Smith); Richard Henry Lee, Letters of a Federal Farmer, in Pamphlets on the Constitution of the United States 279, 291 (Paul Leicester Ford ed., 1888). These criticisms drew on one of the traditional and fundamental principles of mixed government, which was, as George Mason stated it during the course of the Constitutional Convention, that "[t]he purse & the sword might never get into the same hands <whether legislative or executive>." 1 Farrand, supra note 27, at 139‑40. In response, some Federalists took the position that this reading of the Constitution was correct, but the concern unfounded. Thus, Oliver Ellsworth asked:

[D]oes it follow, because it is dangerous to give the power of the sword and purse to an hereditary prince, who is independent of the people, that therefore it is dangerous to give it to the Parliament‑‑to Congress, which is your Parliament‑‑to men appointed by yourselves, and dependent upon yourselves? This argument amounts to this: you must cut a man in two in the middle, to prevent his hurting himself.

2 Elliot, supra note 107, at 195. Such statements reflect the view that the decision to declare war is not simply a decision as to whether hostilities should be classified as a war for purposes of international law. Rather, it is the power of the sword. Similarly, John Marshall asked: "Are the people of England more secure, if the Commons have no voice in declaring war? or are we less secure by having the Senate joined with the President?" 3 id. at 233. Marshall's statement, however, apparently reflects a confusion of the war‑ making power and the treaty‑making power.

[FN141]. See Bestor, supra note 14, at 608 & n.279. Thus, even Professor Yoo, author of the most careful and complete pro‑Executive history, does not offer any examples of this type. See generally Yoo, supra note 22.

[FN142]. Dean Ely, for example, treats the evidence as unambiguous. See Ely, supra note 8, at 5 (noting "clarity" of original understanding). He has received significant criticism on this point. See Peter D. Coffman, Power and Duty: The Language of the War Power, 80 Cornell L. Rev. 1236, 1241 n.30 (1995) (reviewing Ely, supra note 8, and finding his discussion of original understanding "peremptory"); Peter J. Spiro, War Powers and the Siren of Formalism. 68 N.Y.U. L. Rev. 1338, 1357 (1993) (reviewing Ely, supra note 8, and attacking his treatment of original understanding).

[FN143]. Lofgren, Understanding, supra note 12, at 697.

[FN144]. Reveley, supra note 14, at 84.

[FN145]. Yoo, supra note 22, at 282 n.532.

[FN146]. Id. at 287 n.547.

[FN147]. See id.

[FN148]. Id. at 173.

[FN149]. See supra Part I.B.

[FN150]. Rostow, Once More, supra note 19, at 6.

[FN151]. Emerson, War Powers Resolution, supra note 23, at 209.

[FN152]. Yoo, supra note 22, at 217. Colonial governors also had broad military powers, although, as subordinate crown officials, typically lacked the power to declare war. See id. at 219‑20.

[FN153]. See id. at 199‑204.

[FN154]. Id. at 226.

[FN155]. See Rogers, supra note 23, at 1196 & n.10.

[FN156]. See Emerson, War Powers Resolution, supra note 23, at 208.

[FN157]. Id.

[FN158]. See id. at 207.

[FN159]. 1 William Blackstone, Commentaries *249.

[FN160]. Id. at *250.

[FN161]. In Chapter XII of his Second Treatise of Government, Locke divided governmental power in a commonwealth into three parts: legislative, executive, and federative. See John Locke, Two Treatises of Government bk.II, §§ 143‑48 (Peter Laslett ed., Cambridge University Press 1960) (1690). The federative power encompassed relations between the commonwealth and all persons and entities outside of it. See id. at bk.II, §145. "[T]he power of War and Peace" was part of the federative power. See id. at bk.II, § 146. Locke contended that the federative power should be exercised by the executive:

Though, as I said, the Executive and Federative Power of every Community be really distinct in themselves, yet they are hardly to be separated, and placed, at the same time, in the hands of distinct Persons. For both of them requiring the force of the society for their exercise, it is almost impracticable to place the Force of the Commonwealth in distinct, and not subordinate hands; or that the Executive and Federative Power should be placed in Persons that might act separately, whereby the Force of the Publick would be under different Commands: which would be apt sometime or other to cause disorder and ruine.

Id. at bk.II, § 148.

[FN162]. Montesquieu divided governmental power into three parts: "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." Montesquieu, The Spirit of Laws bk. XI, ch. 6, para. 1 (David Wallace Carrithers ed., University of California Press 1977). Although Chapter 6 is headed "Of the Constitution of England," examination of the text shows that Montesquieu is not merely describing the English system of Government, but prescribing the proper governmental framework. See Anne M. Cohler, Montesquieu's Comparative Politics and the Spirit of American Constitutionalism 104 (1988). The first category of executive power encompassed the power to "mak [e ] peace or war." Montesquieu, supra at bk. XI, ch. 6, para. 21.

[FN163]. The Federalist No. 70, at 472 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). Hamilton's recognition that the Executive possessed these attributes was in accordance with the standard formulation. See, e.g., 1 Farrand, supra note 27, at 140 (Dickinson) (proper attributes of executive include "[s]ecrecy, vigor & despatch [sic]" and "responsibility"); James Iredell, Answers to Mr. Mason's Objections, in Pamphlets on the Constitution of the United States 351, 352 (Paul Ford ed., 1888) ("One of the great advantages attending a single Executive power is the degree of secrecy and dispatch with which on critical occasions such a power can act.").

[FN164]. See Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 86 (1985).

[FN165]. Gordon S. Wood, The Creation of the American Republic 1776‑1787, at 519 (1969).

[FN166]. See id. at 521.

[FN167]. South Carolina's 1776 constitution stated, "[T]he president and commander‑in‑chief shall have no power to make war or peace ... without the consent of the general assembly and legislative council." S.C. Const. of 1776, art. XXVI. The state's 1778 constitution also provided that the governor "shall have no power to commence war" without legislative approval. S.C. Const. of 1778 art. XXXIII. Likewise, Virginia's 1776 constitution gave the governor power to "make war" as advised by his executive council. Va. Const. of 1776, pt. i, § xi. Vermont, although not recognized as a state at the time, passed a constitution containing a similar provision. Vt. Const. of 1777, § xviii.

[FN168]. See Va. Const. of 1786, ch. ii, art. xi (Governor to "make war" as advised by Executive Council).

[FN169]. See Md. Const. of 1780, ch. ii, art. vii; N.H. Const. of 1784, pt. ii, cl. 10.

[FN170]. See Mass. Const. of 1780, pt. II, ch. II, 4, art. 1. For a discussion of this Massachusetts clause, see Flaherty, supra note 31, at 1770.

[FN171]. Ely, supra note 8, at 3.

[FN172]. Wormuth et al., supra note 14, at 179.

[FN173]. Bickel, supra note 7, at 131‑32.

[FN174]. 2 Elliot, supra note 107, at 528. For use of this quote as support for a pro‑Congress reading of the war power, see, e.g., Wormuth et al., supra note 14, at 30.

[FN175]. Letter from James Madison to Thomas Jefferson (Apr. 2, 1798), in 2 The Republic of Letters: The Correspondence between Thomas Jefferson and James Madison 1776‑1826, at 1031, 1032 (James Morton Smith ed., 1995) [hereinafter Republic of Letters]. For use of these quotes, see, e.g., Ely, supra note 8, at 3‑4.

[FN176]. Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in 1 Republic of Letters, supra note 175, at 631, 635.

[FN177]. William Rawle, A View of the Constitution of the United States of America 109 (2d ed. 1829).

[FN178]. See, e.g., The Federalist No. 48, at 334‑38 (James Madison) (Jacob E. Cooke ed., 1961); The Federalist No. 71, at 483‑84 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). See also Rakove, supra note 134, at 309‑16.

[FN179]. See Bobbitt, supra note 15, at 1373.

[FN180]. See Sofaer, supra note 14, at 131‑66, 208‑24, 279‑336.

[FN181]. George Washington, 10 The Writings of George Washington 367 (Jared Sparks ed., 1836).

[FN182]. "Helvidius" Number 4, supra note 35, at 106, 108.

[FN183]. Annals of Cong., 9th Cong., 1st Sess. 19 (Dec. 1805).

[FN184]. Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28 (1801). See also United States v. Smith, 27 F. Cas. 1192, 1230‑31 (C.C.S.D.N.Y. 1806) (No. 16,342) (power to make war "exclusively vested in congress"). The one proponent of a different view of the War Powers Clause was St. George Tucker. In his appendix to Blackstone's Commentaries, Tucker wrote, "With us the representatives of the people have the right to decide this important question [whether to declare war], conjunctively with the supreme executive who may, on this occasion as on every other, (except a proposal to amendment the constitution,) exercise a qualified negative on the joint resolutions of congress ...." St. George Tucker, Blackstone's Commentaries (1803), excerpted in 3 The Founders' Constitution 101, 102 (Phillip B. Kurland & Ralph Lerner eds., 1987). Tucker's statement indicates that there was not a consensus on the question of whether the President had a veto over the power to declare war. Moreover, Tucker was a prominent judge, legal educator, and lawyer, so his opinion deserves weight. At the same time, he had not been a member of the Philadelphia convention or his state ratifying convention, and, as indicated in the text, the predominant view was that the Congress alone had responsibility for determining whether war was declared. For information on Tucker's career, see Charles T. Cullen, St. George Tucker and Law in Virginia, 1772‑1804, at 186‑89 (1987); Treanor, Judicial Review, supra note 5, at 520‑21.

[FN185]. For leading secondary accounts, see Alexander DeConde, The Quasi‑ War: The Politics and Diplomacy of the Undeclared War with France, 1797‑1801, at 103‑141 (1966); Bradford Perkins, 1 The Cambridge History of American Foreign Relations: The Creation of a Republican Empire, 1776‑1865, at 105‑07 (Warren I. Cohen ed., 1993); Sofaer, supra note 14, at 144‑45. Adams provides two additional accounts of the incident, one full and one partial. See John Adams, To the Printers of the Boston Patriot [hereinafter Boston Patriot], in 9 The Works of John Adams 241, 304‑05 (Charles Francis Adams ed., 1854) [hereinafter Adams Works] (full account of 1809); id. at 305 n.1 (fragment account of 1801).

[FN186]. Annals of Cong., 5th Cong., 2117 (July 1798). See also id. at 1321 (Congressman Baldwin: "[T]he subject seemed to be placed wholly in the hands of the Legislature."); id. at 1324 (referring to statement of Congressman Nicholas: "[H]e had never heard it doubted that Congress had the power over the progress of what led to war, as well as the power of declaring war."); id. at 1336 (referring to statement of Congressman Pinckney: "Mr. P. agreed that this was Legislative power, and not Executive.").

[FN187]. James Madison, Message to the Senate and House of Representatives (June 1, 1812), in 2 A Compilation of the Messages and Papers of the Presidents 484, 489‑90 (James D. Richardson ed., 1897) [hereinafter Compilation].

[FN188]. James Madison, A Proclamation (June 12, 1812), in 2 Compilation, supra note 187, at 497.

[FN189]. For the most complete argument on point, see Carter, supra note 26, at 129‑32. See also Bobbitt, supra note 15, at 1385 n.69 ("[I]t seems clear from the language of the Constitution that the President cannot veto a declaration ....").

[FN190]. See Ely, supra note 8, at 231 n.21; Gregory Sidak, To Declare War, 41 Duke L.J. 27, 84 (1991).

[FN191]. U.S. Const. art. I, § 7, cl. 3. In its entirety, the clause reads:

Every Order, Resolution, or Vote, to Which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Id.

[FN192]. 3 U.S. (3 Dall.) 378 (1798).

[FN193]. Id. at 381 n.*.

[FN194]. See Ely, supra note 8, at 231 n.21; Sidak, supra note 190, at 84.

[FN195]. See Richard B. Bernstein & Jerome Agel, Amending America: If We Love the Constitution So Much, Why Do We Keep Trying to Change It? 91 (1993).

[FN196]. See id. at 100.

[FN197]. Madison, Message to the Senate and House of Representatives, supra note 187, at 490. See also supra text accompanying note 186.

[FN198]. Madison, A Proclamation, supra note 188, at 497. See also supra text accompanying note 187.

[FN199]. See supra text accompanying notes 185‑86.

[FN200]. For a detailed discussion of these concerns, see Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era 10, 274 (Rita & Robert Kimber trans., 1980); Charles Royster, A Revolutionary People at War: The Continental Army and American Character, 1775‑1783, at 35‑38 (1979).

[FN201]. See supra text accompanying notes 164‑66.