Why did the Founding Fathers make it so difficult?
The president sat in the Oval Office, staring intently at his secretary of state. It would fall to him either to order the United States to war on his own authority or to consult with Congress beforehand. He had already stated his resolve to fight the enemy abroad in order to protect the home front, and now it was time to make good on his promise: “We’ve got to stop the sons of bitches, no matter what, and that’s all there is to it.”
It is a scene that could have played out during the first term of any modern president. However, the enemy in June 1950 was not terrorists but communists, and the president was Harry S. Truman. He was committed to opposing communist expansion around the world, and 135,000 communist troops were on the march across the 38th parallel. The president’s decision would thrust the United States into the Korean War—without congressional authorization or a declaration of war.
Truman was perhaps the first modern president who saw military intervention in strategic terms, demanding rapid and often unilateral deployments of troops. His service as an artillery officer in World War I surely impressed upon him the need to move quickly and decisively in the face of the enemy. As captain in charge of the “Dizzy D” Battery of the 129th Field Artillery, Truman had mastered the highly mobile French 75mm field gun, learning that one had to put down fire as soon as one saw the massing of enemy troops and to anticipate their movements. As president he showed the same inclinations.
Truman would later serve as a model for George W. Bush, who shared Harry’s view of inherent presidential power and his reluctance to confer with Congress on military interventions (nonetheless, Bush did secure congressional authorization for the Iraq War). Bush’s identification with Truman is quite apt: Both of their wars raised constitutional questions about the inherent authority of the American president. Like many of their predecessors, Truman and Bush resisted sharing power with Congress when it came to war. But that is a conflict which has existed since the very founding of the Republic.
The 1970 soul classic “War (What Is It Good For?)” could have been penned in 1790. The Framers of the Constitution largely viewed wars, to quote Motown vocalist Edwin Starr, as largely good for “absolutely nothing.” Aside from repelling attacks, wars were then viewed as the inefficient and egotistical occupations of monarchs and despots. It is not that the Framers were pacifists—they were pragmatists: They saw the wars as serving little purpose but to drain lives and treasure for the glory of national leaders. Their solution would prove maddening for dozens of later presidents: They divided the war powers and, in so doing, denied the president the legal ability to declare or to maintain a war.
More than 200 years later, the division of war powers between the president and Congress remains a fierce struggle. What is most striking about today’s debate is that the positions and even the words have not greatly changed over the centuries. Presidents and congresses have always sparred over their prerogatives of war. Of course, when wars have proven unpopular, the debate has shifted from one of prerogative to one of responsibility, an example of how “success has many fathers, but failure is an orphan.” But the Constitution requires two parents—the executive and legislative branches—to consummate a war. Thus the Framers guaranteed that both branches would have equal authority and blame for making war. Yet our history has shown that, once the drums of war are sounding, both presidents and congresses have danced around the limitations and expectations of the Framers.
When the Framers met in Philadelphia in the summer of 1787, many had war on their minds. There was considerable debate over the role of the president, or even whether a single president was needed. Edmund Randolph warned that executive power was “the foetus of monarchy,” and, like many of his contemporaries, he feared that the president would try to rule unilaterally more as king than public servant. The debate often came back to war. John Jay voiced a common view in The Federalist Papers when he cautioned, “[A]bsolute monarchs will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory.” Past wars, he noted, were justified “only [in] the mind of the Sovereign…[rather than in] the voices and interests of his people.” Other Framers denounced most wars as merely part of “a theater of glory” for rulers.
As on many such occasions, the concerns of the Framers proved prophetic. Later presidents and political leaders would opine it is war that often propels a president into the ranks of the “great presidents.” Teddy Roosevelt once complained, “If there is not the war, you don’t get the great general; if there is not the great occasion, you don’t get the great statesman; if Lincoln had lived in times of peace, no one would know his name now.” Many presidents have reached the same conclusion: Greatness is often found on the other side of a war. When asked about the motivation behind the 1991 Gulf War, Admiral William Crowe, former chair of the Joint Chiefs of Staff, noted, “To be a great president you have to have a war. All the great presidents have had their wars.”
The Framers agreed that a president could not be trusted with the authority to declare and make war. Their solution for curbing a war-hungry executive was to divide the powers. As George Mason noted, “The purse & the sword ought never to get into the same hands.” This aversion to executive power was reflected in the original wording of Article I of the Constitution, which gave Congress the sole authority “to make war.” This is how the Constitution would have read were it not for a small amendment suggested on August 17, 1787, by South Carolina delegate Pierce Butler and Massachusetts delegate Elbridge Gerry (who would later vote against the Constitution). Butler and Gerry suggested that the word “make” be replaced by “declare” in Article I. Little is recorded about this word change. Connecticut delegate Roger Sherman objected that it would result “in narrowing the power too much,” while others indicated that war demanded less deliberation and more action—once it has been properly declared.
Ultimately, by a vote of eight to two (and one abstention), the fateful word change was made. That single word change helped set off more than 200 years of squabbling over where the war powers line is drawn between presidents and congresses.
Under Article I of the Constitution, Congress alone has the right to declare a war and to maintain the armed forces of the United States. These powers gave Congress a powerful voice in making war. Thus, while the president is the commander in chief in the execution of a war, it is Congress that determines whether he can unleash the dogs of war—and how much he can feed them. It is an arrangement designed to make war the most difficult power for the president to exercise.
At the same time, once Congress declared war, the president was recognized as the commander in chief in the prosecution of the conflict. This power in Article II was meant to end the meddling in wartime decision-making that was common under the Continental Congress. Congress would release the dogs of war, but only the president would direct their fury.
Most presidents have chafed at the need to ask Congress to declare war and to maintain war efforts, and they have tried to bully, badger and even bluff Congress into yielding to their demands.
The most vivid example of the uneasy relationship between the two branches occurred over Teddy Roosevelt’s deployment of the Navy. Roosevelt had announced his “Big Stick” policy and wanted to display a physical manifestation of that stick around the world. He hatched the idea of sending all 16 capital ships of the U.S. Navy—the “White Fleet”—on the first ever circumnavigation of the globe by a naval fleet. His idea was viewed as unnecessary and wasteful by many in Congress, which refused to appropriate the funds. For the Rough Rider president, this was an affront he could not let pass. He decided to send the ships anyway— without a guarantee of funds or fuel for the trip. In August 1907, the 16 battleships, assorted supporting vessels and more than 14,000 sailors and Marines set out from Norfolk in a column three miles long. Roosevelt himself shadowed the fleet out to sea in his own presidential yacht, Mayflower. Roosevelt then sent a message to Congress that he had sent the fleet with enough fuel to get halfway around the world. If Congress wanted the fleet back, he suggested, they might want to pay for more fuel. They did so.
Roosevelt’s bluff captures the essence of the division of authority over war powers: Roosevelt controlled the ships, but Congress supplied the fuel. Despite such bravado, presidents cannot get too far without Congress. Presidents, however, can use their powers to force the hand of Congress, including pushing the nation to the brink of war or even into armed conflict.
Bertolt Brecht once said, “War is like love; it always finds a way.” This is certainly true of some past American wars. Presidents have repeatedly found ways to lead an often reluctant nation to war. Since presidents can order troop deployments, diplomatic changes and other provocative acts, it is relatively easy to start an international fight Congress will have to finish. The Mexican War of 1846–48 has long served as a textbook example of how to provoke a war. Many legislators did not want to go to war with Mexico—particularly members of the Whig Party. President James K. Polk, however, coveted Upper California and New Mexico. To that end, Polk sent envoy John Slidell in 1845 to Mexico City with an offer to purchase the territory for roughly $35 million in cash and loan forgiveness.
Unsuccessful at buying the land, Polk set out to take it. He claimed the area between the Nueces River and Rio Grande as American soil—though most experts then and now viewed the land as clearly Mexican. Polk sent General Zachary Taylor to the Rio Grande to claim the territory in full expectation the Mexicans would oppose such a move. Taylor took the most provocative possible action—building a fort (later known as Fort Brown) on the border. The Mexicans were furious, and on April 24, 1846, a 2,000-man cavalry force attacked a U.S. patrol of 63 men. Eleven were killed. Fort Brown and the Mexicans exchanged artillery fire until Taylor arrived with 2,400 additional troops. At the ensuing Battle of Resaca de la Palma, the two armies fought—at times hand to hand—for the territory. The Americans prevailed, and Polk had his war.
On May 11, 1846, Polk told Congress, “American blood [has] been spilled on American soil” and thus “the cup of forebearance [has] been exhausted.” Even though Whigs voted against the war as the product of Polk’s “lust of dominion,” Congress declared war. Among the dissenting voters were former president John Quincy Adams and future president Abraham Lincoln. A clearly suspicious Lincoln demanded that the administration “show me the spot” where the patrol had been originally attacked.
Lincoln was not the only American leader suspicious of war-triggering events. A Civil War veteran of the 23rd Regiment of the Ohio Volunteer Infantry, President William McKinley had seen all the death he wanted to see by the late 19th century. Despite calls for war with Spain by such hawks as Assistant Secretary of the Navy Theodore Roosevelt, McKinley resisted. “I’ve been through one war,” he said. “I’ve seen the bodies stacked like cordwood, and I don’t want to go through that sort of thing again.” Roosevelt and others, however, stoked the flames of war.
When pro-war yellow journalist William R. Hearst was told by his staff the crisis in Cuba was not yet a war, he vowed, “You furnish the pictures, and I’ll furnish the war.” The issue came to a head at 9:30 p.m. on February 15, 1898, when the battleship USS Maine exploded in Havana Harbor. At the time, there was great uncertainty as to whether the explosion was accidental or intentional. Many have claimed that the explosion originated inside the ship, a 1976 investigation suggesting flammable dust in a coal bunker near the ship’s ammunition magazine as the cause. Hawks, of course, seized upon the sinking as a deliberate act caused by a submerged mine (a view supported a century later in a National Geographic investigation). But even as Americans took up the cry, “Remember the Maine, to Hell with Spain!” McKinley still wanted to act deliberatively. He asked Congress only for the authority to use U.S. troops to quell the insurrection in Cuba. Congress went further and on April 19, 1898, approved the use of force to secure Cuban independence. Spain declared war four days later, and Congress returned the favor, launching the Spanish-American War, what Roosevelt would call our “splendid little war.”
Most presidents have used persuasion to push Congress to war, such as the calculated measures of Franklin Delano Roosevelt leading up to World War II. Other presidents have been accused of falsifying the case for war. Witness the Gulf of Tonkin Incident.
In November 1963, Lyndon Johnson had authorized covert operations against North Vietnam under OPLAN (Operations Plan) 34-A. But while the United States was assisting the South Vietnamese, Congress had never approved full combat operations. These efforts were escalated further in March 1964 under National Security Action Memorandum No. 288.
For their part, the North Vietnamese were committed to attacking any vessel engaged in hostile action within their waters. On August 4, 1964, the destroyer USS Maddox sent a high-priority message that an attack by North Vietnamese PT boats (or swatows) was imminent. Maddox had come under attack by such boats two days earlier—a brief exchange that left the North Vietnamese vessels heavily damaged and several crewmen dead. (Only one shell hit Maddox.) On August 4, the administration reported a second attack, then later demanded the authority to commence full military operations.
Where Lincoln had demanded to be shown the spot of the attack that started the Mexican-American War, few legislators questioned the veracity of the August 4 attack on Maddox. Sen. J. William Fulbright, chairman of the Foreign Relations Committee, declared, “The facts of the immediate situation are clear.” Even liberal members like Sen. Frank Church called on colleagues to dispense with serious scrutiny: “There is a time to question the route of the flag, and there is a time to rally around it, lest it be routed. This is the time for the latter course.” Congress quickly gave the president the authority he sought in the Gulf of Tonkin Resolution.
Only years later would the second attack be discredited as unsubstantiated and probably untrue. (Ultimately, even Secretary of Defense Robert McNamara would question whether an attack had actually occurred). It was not until 2003 that many documents were released showing little evidence of an attack.
The Senate began to question the Maddox account in 1968, after the war had become unpopular with the public. Fulbright and his colleagues demanded and received information that cast serious doubt on the account given to them by the administration. Fulbright noted that, if this information “had been put before me on the 6th of August , I certainly don’t believe that I would have rushed into action.”
Today many senators are making similar statements. Had they known the whole story, these pols insist, they would never have voted for the Iraq War, despite their similar failure to insist on such relevant intelligence at the time.
The debate over the origins and wisdom of most of the wars of the past century could have been taken directly from the Constitutional debate in the late 18th century. Indeed, throughout the history of the United States at war, there is an almost unbroken tradition of Congress engaging in such willful blindness to pass popular resolutions. Harry Truman pushed the nation into the Korean War by proclaiming it to be a “police action” taken under the authority of a United Nations resolution. At the time, when the issue of Truman’s open circumvention of the Constitution was raised, most senators agreed with Senate Majority Leader Scott Lucas, who simply declared he “[did] not care to debate that question.”
When President Ronald Reagan invaded Grenada in 1983, he did so under his inherent commander in chief powers, not a congressional resolution. He invoked this authority again when Libya was attacked in 1986.
President Bush’s father also used his inherent authority to send almost 25,000 troops to invade Panama and capture its leader, General Manuel Noriega. (He did secure Congressional authorization for the Gulf War.) President Bill Clinton repeatedly ordered military action on his inherent authority, bypassing Congress for forays into Bosnia, Kosovo, Iraq, Haiti, Sudan and Afghanistan.
Of course, Congress has the ability to use the power of the purse to end such conflicts and force changes even in the deployment of troops. As early as the Mexican-American War, Congress debated restrictions on war monies. In the Civil War, and later during Reconstruction, Congress routinely attached conditions to appropriations to force policies on the formerly rebellious states.
Later, Congress moved to impose its will on the composition of military units. Teddy Roosevelt was openly hostile toward the Marine Corps and, like others at the time, wanted the Corps absorbed into the Army. To that end, he ordered the Marines off the Navy’s ships. The Marines, however, had powerful allies in Congress, which required Roosevelt to return the Marines to the ships as a condition for military funding.
During the Vietnam War, Congress rescinded its authorization and set timetables for withdrawal. Later, Congress would bar the use of any funds for military incursions or interventions in places like Nicaragua and Angola.
Perhaps the greatest congressional assertion of war powers came with the passage of the War Powers Act of 1973, a law requiring a president to pull back any troops engaged in hostile action after 60 days, absent congressional authorization or a 30-day extension.
Yet, despite the War Powers Act, the 20th century saw the increased assertion of presidential war powers and the decline of congressional power. Presidents have resisted this law just as they have resisted Article I. Reagan never reported U.S. military incursions into El Salvador, for example, and was accused of violating the law again with the invasion of Grenada.
Modern Congresses have shown a preference to remain in a largely secondary role when it has come to war— ready to claim victory but equally ready to denounce defeat. Where the Framers expected an open and binding debate over the declaration of war, politicians have persistently found ways to avoid that politically difficult decision through the use of resolutions or by simply yielding to presidential fiat, as they did during the Korean War.
The ability to make war without declaring war can be traced back to the years immediately following the ratification of the Constitution. In the Quasi-War of 1798–1800, the United States engaged in fierce combat with the French absent a formal declaration of war. The French had started to attack U.S. ships in retaliation for the Jay Treaty with Britain, which the French viewed as violating the historic alliance between France and the United States. The new revolutionary government in France ordered the interdiction and seizure of U.S. vessels, and Congress responded by appropriating money for an expanded U.S. naval force. The shipping losses on both sides were staggering: By the end of the war, more than 2,000 U.S. merchant ships had been seized or destroyed, and the U.S. Navy had seized 85 French ships.
While the Quasi-War would become a precedent for undeclared wars, it was unique in one sense. This time, Congress wanted full war, but the president did not. President John Adams resisted the calls for war and credited himself with preventing such an expansion of the conflict.
The Quasi-War is now the model for modern wars. Presidents have attacked or even invaded other nations without a debate, let alone a declaration, by Congress. After that war, Congress learned how to use resolutions as a substitute for an unambiguous declaration. Where the Framers had recognized the need for the president to repel attacks quickly, they still anticipated Congress would be solely responsible for the declaration of hostilities. But since World War II, even wars based on congressional resolutions (e.g., the Iraq War) are, in constitutional terms, almost casual. Where the Framers wanted clarity, Congress has created ambiguity in the making of war.
In that sense, Secretary of State Dean Acheson was wrong in his insistence that Truman had the inherent authority to commence the Korean War, and Truman was wrong in his deployment of U.S. forces without congressional approval. Ultimately, Truman would go to war on the questionable basis of a police action to avoid seeking congressional authorization. Such distinctions would have been lost on the Framers. It is certainly true events were moving quickly in June 1950, with the collapse of South Korean forces. It is also true that war now progresses faster than it did in the 1700s, when months might pass before the commencement of serious combat.
When viewed in the context of our history, the current debates seem little more than a recent production of a long-running drama, with the same characters playing the same roles: once eager senators now wanting to end it; a still eager president insisting on staying the course. What is striking, however, is how different this drama would look to the Framers. They anticipated struggles over war powers, yet never anticipated that so many military conflicts would occur without declarations of war.
One important aspect of the current war, however, is different from all past wars: The idea of preventive war would have been controversial enough with the Framers, but far more controversial would have been the concept of perpetual war that arises from a “war on terrorism.” Such a conflict has neither a beginning in the form of a congressional declaration of war nor an end in the form of an expected final victory. Most of the unauthorized combat operations by Presidents Reagan, Bush the elder and Clinton were relatively short-term affairs. The Framers never anticipated that a president could unilaterally declare perpetual war.
Under the war powers provisions, only Congress can start a war, but it is the domain of a president to decide when the war is over. Of course, Congress can engineer the end of a war, just as a president can engineer the start of one. Historically, however, once Congress released the dogs of war, it was expected the president alone would call them back. There usually has been a well-defined point marking the end of a war: the taking of a capitol city, a surrender or the signing of a treaty. Yet, is it conceivable that any president would suddenly declare that terrorism has been defeated? This state of affairs—what amounts to a perpetual state of undeclared war—would have been unimaginable to the Framers.
War powers are now very different in their execution than the system contemplated by the Framers or described in the Constitution. Clear constitutional language has been displaced over the years by the language of political convenience. There has been a kind of silent mutual pact between the executive and legislative branches to evade this difficult burden placed on them by the Framers. The result is that wars are easier to start and therefore more common in modern times—precisely what the Framers sought to prevent in Philadelphia in the summer of 1787.
For further reading, Jonathan Turley recommends: Presidential War Power, by Louis Fisher, and To Chain the Dog of War: The War Power of Congress in History and Law, by Francis Wormuth and Edwin Brown Firmage.
Originally published in the August 2007 issue of Military History. To subscribe, click here.