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The President, The People, And The Power To Make War
April 1970 | Volume 21, Issue 3
The Constitution of the United States declares in the plainest possible English: “The Congress shall have Power … To declare War.” Yet in the last twenty years Americans have fought two major wars—in Korea and in Vietnam—without a congressional declaration of war. Apart from the question of who has the right to send the armed forces into serious combat action, Vietnam has been a glaring instance of momentous foreign policy carried out with only the most cursory control by Congress.
Naturally, many Americans opposed to the Vietnam war are crying outrage. Many others, for or against the war or somewhere in between, ask a worried question: What has happened to the traditional constitutional procedure whereby the President leads in international affairs but Congress has a potent check on him when the decision involves life and death for the nation’s young men and sweeping consequences for the whole country? Is there no way to bring foreign policy back under greater popular control, by restoring the congressional role or through some other technique?
On the surface, the questions have clear-cut answers, most of which revolve around the contention that particular recent Presidents simply have refused to play by the constitutional rules. Yet in actuality the answers are entangled in complex considerations of just what the Founding Fathers did and did not write into the Constitution, how their decisions have been put into practice over two centuries, and whether the circumstances of war-making have not changed so much that some of the basic old rules simply do not apply.
The wise and hardheaded men who assembled in 1787 to write a constitution for the United States were members of a generation that had just fought a bitter war against the British executive, King George III. They were sick of battles and their devastation and intensely concerned to circumscribe any decision for war. A gangling freshman congressman from Illinois, denouncing the Mexican-American War a half century later, stated the mood of most of the Founding Fathers as accurately as any historian can. Representative Abraham Lincoln wrote in 1848 that the Constitutional Convention gave the war-making power to Congress because “kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood 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.” (The italics are Lincoln’s.)
So the Congress, not the President, was to decide war or peace. But the Founding Fathers lived in an era filled with violence between countries that was not formal war. The new nation would be at a sharp disadvantage if, in the event of depredations against its commerce or maraudings on its land, its armed forces were immobilized until congressmen could gather from thirteen states in their horse-drawn vehicles. The Founding Fathers made one man who was on the scene, the President, Commander in Chief of the Army and Navy. The wording of the first draft of the Constitution gave Congress the exclusive power to “make” war. On the floor of the convention, “make” was changed to “declare,” assigning the President the right to use the Army and Navy in order to” meet specific emergencies while retaining for the House and Senate the power to decide full-scale war.
The Constitution has often been called a bundle of compromises, and so it was—not least between those who wanted a strong and those who wanted a weak Chief Executive. The Founding Fathers may have made the President the Commander in Chief, but they gave Congress the power of the purse in determining the size and nature of the armed forces. Until late in the convention, the right to make treaties was vested in the Senate alone. But there were obvious advantages in having one man initiate treaties, receive foreign ambassadors, name and instruct American ambassadors. The Chief Executive would do these things, although he was to appoint ambassadors only with the approval of a Senate majority and make treaties with the “Advice and Consent” of two thirds of the Senate.
In foreign affairs, as in all areas, the Founding Fathers were notably spare in laying down specific dictates and in the language that they used to write the provisions. Yet they said enough to make it clear that they envisaged a foreign policy system in which the President would lead, but in collaboration with Congress, especially the Senate, and in which the Chief Executive would be subject to continuing scrutiny and formidable restraints whenever his activities touched that most serious aspect of foreign affairs, general war.