ABOUT THE AUTHOR
Doug Bandow is a Senior Fellow at the Cato Institute and the Senior Fellow in International Religious Persecution at the Institute on Religion and Public Policy. A former Special Assistant to President Ronald Reagan, he is author of Beyond Good Intentions: A Biblical View of Politics (Crossway).
It is time to end the era of executive war-making.
Listen to the presidential candidates and it sounds like war with Iran is around the corner. And not just the Republicans. Defense Secretary Leon Panetta declared: "If we get intelligence they are proceeding with developing a nuclear weapon, then we will take whatever steps necessary to deal with it."
The consequences of any war with Iran would be extraordinary. Probably far worse than resulted from the invasion of Iraq. The likely costs underscore the necessity of a congressional declaration of war before the president initiates any military action against Tehran.
Declarations of war have gone out of fashion. The last one was 70 years ago, in response to the Japanese attack on Pearl Harbor. Nevertheless, less formal authorizations of force are common. While not quite the same, Congress still voted on war with Iraq. And President George W. Bush did not deny that he was fighting a war. In contrast, President Obama channeled George Orwell in claiming the absence of hostilities in Libya as U.S. drones, missiles, and planes destroyed military materiel and killed military personnel.
It was an exquisite rhetorical performance. But also illegal and unconstitutional. This election the American people should insist that whoever is elected actually follow the Constitution.
The Founders were prepared to fight for their independence, but they feared the costs of war. They particularly worried about the consequences of investing the executive with the limitless power to engage in war, like the British king. Wrote James Madison, sometimes called the father of the Constitution: "Of all the enemies of true liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instrument for bringing the many under the domination of the few."
These sentiments animated the debates at the Constitutional Convention. Enthusiasts for expansive, unaccountable executive power were few. That reluctance included giving the president authority to take the new nation into war. The Constitution created barriers to executive war-making.
Contrary to conventional wisdom in today's White House, the Founders gave Congress several important war-making powers, including raising an army, approving military expenditures, ratifying treaties, setting rules of war, and issuing letters of marquee. Moreover, the legislative branch was to decide whether there would be a war for the president to fight. According to Article 1, Sec. 8 (11), "Congress shall have the power… to declare war." James Madison explained: the "fundamental doctrine of the Constitution that the power to declare war is fully and exclusively vested in the legislature."
The convention delegates were not fools. Especially at a time when communication and transportation were slow, they recognized that the chief executive might have to respond to foreign attack. For that reason the Framers changed "make" to "declare." However, that did not mean that Congress could only declare as in "take note" of the fact that the president had, say, invaded another nation.
The Founders' objective was simple. They did not trust the executive to make this important decision alone. For instance, John Jay contended that dubious motives often led kings "to engage in wars not sanctified by justice or the voice and interests of his people." George Mason declared: the president "is not safely to be entrusted with" the power to start wars. Thus, Mason favored "clogging rather than facilitating war."
Similar was James Wilson, who said the Constitution "will not hurry us into war." Rather, he explained, the provision "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 in the legislature at large."
Pierce Butler, an advocate of executive power at the convention, made a similar point when campaigning for the Constitution's ratification in South Carolina. Butler assured his skeptical brethren that the document did not give the president authority to start wars "as throwing into his hands the influence of a monarch, having an opportunity of involving his country in a war whenever he wished to promote her destruction."
Similar was the understanding of influential leaders not directly involved in drafting the document. Thomas Jefferson was ambassador to France at the time, but he wrote approvingly of the proposed Constitution's "effectual check to the dog of war by transferring the power of letting him loose." Abraham Lincoln, no opponent of expansive executive power, lauded the Founders for recognizing war "to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us."
Of course, the Constitution named the president commander-in-chief of the military (but not the country). With that position comes important authority, primarily to conduct wars authorized by Congress. Alexander Hamilton was an advocate of quasi-monarchy, but he only referred to the commander-in-chief as the "first general and admiral" of the armed services. He emphasized that the president's authority was "in substance much inferior to" that of the British monarch, and "would amount to nothing more than the supreme command and direction of the land and naval forces… while that of the British king extends to the declaring of war."
Over the years presidents often engaged in military action without congressional authority. Military maneuvers, attempts at intimidation, limited retaliation, and even isolated acts of war have been common, but remain qualitatively different than initiating full-scale hostilities. Not until President Harry Truman took America into the Korean War did a president claim the authority to unilaterally undertake large-scale combat, especially against a nation which had not assaulted or even threatened America. And he did not have the excuse of necessity, such as preempting a threatened Soviet nuclear attack. Truman could have called Congress together and made his pitch for war, while readying U.S. forces to use if he received legislative sanction.
Vietnam created a new precedent -- congressional authorization short of a war declaration, in this case the Gulf of Tonkin Resolution. Congress took a similar approach to the Persian Gulf War, attack on Afghanistan, and invasion of Iraq. My Cato Institute colleague John Samples categorizes these as conflicts which "involved (and were expected to involve) troops in combat and thus, casualties."
