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What’s So Great About the Declare War Clause? Noah Feldman’s Madison & War Powers: Part II
Lawfare ^ | Thursday, January 25, 2018, 7:00 AM | Matthew Waxman

Posted on 01/25/2018 10:53:15 AM PST by Sopater

The first essay in this three-part series about Noah Feldman’s “The Three Lives of James Madison” discussed how Madison’s theory of war powers was focused heavily on internal dangers to liberty and republican governance from war or standing armies. The allocation of the declare war power to Congress played only a small role in his theory. More important were structural checks on national-level military establishments, especially constitutional provisions that preserved state militias as the primary source of military manpower and that required Congress to fund—and then keep funding—a national army. Without an army, the president couldn’t fight a war regardless of where the declare war power lay.

Drawing on Feldman’s history, this essay shows how despite some important continuities, many of parts of Madison’s theory failed in practice during the early republic, including his own presidency.

Madison and War Powers in Practice

Even in an 18th-century world in which the international legal distinction between war and peace was sharper than it is today, Madison seemed caught off guard during the Washington and Adams administrations by the degree to which presidents could make major decisions for the nation about war absent any declaration by Congress. Upon his own rise to the presidency, the state militia system in which he placed much faith betrayed him.

Neutrality Controversy

The first major war episode that Feldman details is the 1793 Neutrality Controversy, in which President Washington unilaterally announced a policy of impartiality in the European war, rejecting the view of Jefferson and substantial public opinion that the United States should align with France. To Washington and his chief adviser Hamilton, this exercise of presidential executive and diplomatic powers was, in effect, declaring “not war”—but to opponents like Madison it was a usurpation of power over war/peace decisions, nonetheless.

This was Madison’s first big practical lesson that the movement from baseline peace to exceptional war can take many non-linear paths. The express provisions of the Constitution—in particular the Declare War Clause—would cover only some of them.

In my view Hamilton bested Madison in their dueling constitutional commentary during this incident under the pseudonyms Pacificus and Helvidius. Feldman also points out, however, that the embryonic executive branch was already nimble enough to exercise foreign policy leadership, and to fill in constitutional gaps through its actions. Arguments were important, but deeds were establishing precedents for expanded presidential diplomacy regarding war and peace. This was especially true during the so-called “Genêt affair,” when the French minister to the United States tried to undermine American neutrality by commissioning privateers and threatening to take his case directly to the public. “The theoretical nature of Madison’s constitutional critique of Pacificus was particularly ill-timed,” writes Feldman. “As Madison was ruminating about obscure details of the separation of powers, Hamilton was turning the Genêt affair into concrete political gain.” (Page 381).

Quasi-War With France

During the first Adams administration, the United States and France waged an undeclared military conflict mostly at sea (1798-1800). French attacks on American shipping, especially in the West Indies, combined with other factors leading to armed hostilities. Congress provided the executive branch with naval and other military resources and authorized, in an escalating series of legislative acts, more and more forceful measures.

Note that this was primarily a naval conflict, which itself posed some challenges for Madison’s war powers ideas (which were mostly about armies). President Adams had to convince Congress to continue funding a Navy, and he was cautious to get specific authorization for using it. But that was probably an easier political lift than supporting ground hostilities, because armies were generally seen as a greater risk to liberty (a feature that, besides the need for longer-term capital investment, is probably one reason why the Navy Clause does not contain the Army’s two-year limitation).

During that episode, Madison penned a letter to Jefferson in which he famously wrote his strongest statement about the declare war clause:

The Constitution supposes what the history of all governments demonstrates, that the executive 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 legislature. (Page 424, citing a 1798 letter to Jefferson).

In some ways it is no surprise that Madison emphasized Congress’s war power here: Having realized what presidents could do without formally declaring war, he emphasized more than before that Congress should be in charge.

Modern-day lawyers who oppose unilateral resort to armed force by the president often cite this statement about the war declaration power in support of their views. But Feldman’s book places it in context. The legislature was, in fact, already quite involved in decision-making, having fulfilled requests for armaments and authorized limited military actions. Moreover, Adams was actually struggling to avoid open conflict with France, not baiting the nation into one.

Madison seems blinded to these factors because he wanted war to be a binary condition—we were either at (declared) war or not. He thought that approach would make war easier to control. “Madison reviled the idea of undeclared war,” explains Feldman (Page 414). That’s why Madison says the framers “vested the question of war in the legislature” (my emphasis). It is also why he goes on the say that “the doctrines lately advanced,” by which he means congressional authorization of limited military actions without declaring war, “strike at the root of all these provisions, and will deposit the peace of the country in that department which the Constitution distrusts as most ready without cause to renounce it.”

But the Constitution needed to better fit the realities and strategy of conflict, not the other way around. And those realities included that interstate conflict entails a set of moves and countermoves, threats and counter-threats, only sometimes resulting in full-scale conflict for which a legal declaration would be advantageous.

Madison’s First Term as President

Madison served as secretary of state throughout the Jefferson administration, during which the United States was pushed around by Britain on many fronts, including in maritime commerce. Feldman describes in detail how Madison and Jefferson sought and failed to negotiate British concessions through economic coercion, and Madison inherits the challenge when elected president.

Notwithstanding these and other security challenges, in his 1809 inaugural address, Madison clings to his republican concerns about centralized military establishment, warning that a standing army was a danger to liberty and must therefore be kept “within the requisite limits” while “remembering that an armed and trained militia is the firmest bulwark of republics” (504).

As Feldman notes, of course, “[w]ar was not a viable option for a republic without a standing army” (504). That may not have seemed so problematic to Madison, who had no intention of going to war. But coercive diplomacy or deterrence backed up by the threat of force were not possible without a standing army, either. Nor was an aggressive foreign economic policy that risked escalating to or provoking war.

So by 1811 Madison had learned a key strategic lesson that cuts at his republican theory of war powers: that a standing military may be necessary for strategies—like deterrence, or threatening an escalation of economic measures—that could prevent war. “With every avenue of economic sanctions apparently exhausted, all that remained to alter British policy was war.” Feldman continues, “Ideally, Madison would not actually have to use force, just threaten it. To threaten credibly, however, Madison would need to motivate Congress to create a functional military” (529)—something he had stood against.

War of 1812

Having exhausted every form of economic coercion he could muster, Madison turned in 1812 to Congress for a war declaration, which passed narrowly in both houses. Although United States ultimately emerges victorious, it suffered major setbacks throughout the war, including the burning of Washington, D.C. Feldman notes that “Congress had refused to give Madison the troops he needed. Most of the public had refused any sacrifice and avoided military service. The militia had frequently fled the field. The regular army had performed doubtfully at best” (606-07).

The biggest military blunders involved reliance on state militias, which Madison’s republican theory of war powers placed at the center of national defense. His military strategy entailed invasion of Canada, but New York militiamen refused to cross the border, arguing that constitutionally they could not be sent abroad on offensive campaigns (recall that the militia clauses restrict the purposes for which Congress can call them forth: “to execute the Laws of the Union, suppress Insurrections and repel Invasions”). Those militias that were willing to cross the Canadian border fought poorly—as one might expect of forces designed for local defense. Madison “was beginning to recognize that the federal government might not be able to rely on militia as he expected” (552).

Eventually the United States repulsed British forces and scored enough victories to force a negotiated settlement. Feldman describes how, in an important concession to his experience over prior assumptions, Madison acknowledged in a post-war speech to Congress that: “Experience has taught us” … that the “pacific dispositions of the American people” and “their political institutions” would not exempt the United States from the need to fight wars. “A certain degree of preparation” was “indispensable to avert disaster” and would also give “the best security for the continuance of peace” (607).

Madison’s proposals, ultimately adopted by Congress, called for a modest standing army (on the order of ten thousand troops) and a small standing Navy. “The recommendations were altogether logical in the light of the experience of the previous decade” (607)—not only the military setbacks during the war but the efforts to avoid war to begin with.

This concession to standing national forces struck a balance in the decades that followed between defense needs (and even some territorial expansions through force) and concerns about domestic centralization of power. But it also laid the seeds for greater and greater presidential discretion in foreign policy as those standing forces grew larger.

***

Reality was tough on Madison’s theory of war powers. Madison never proposed a wholesale departure from reliance on structural mechanisms to ensure that defensive measures would not encroach on American liberties, but he realized the limits of his assumption that opening up trade would prevent war. He came to accept that significant adjustments in how those structural checks operated were inevitable. The executive branch was filling gaps in clear constitutional allocations of war-related powers. Clear delineations between war and peace were poorly matched with the realities of conflict. Heavy reliance on state militias had to give way to standing national forces.

The next and final essay will address what these early experiences and tests of Madisonian theory should tell us today about constitutional war powers debates.


TOPICS: Books/Literature; History
KEYWORDS: constitution; federalistpapers; founders; war
Here's Part II
1 posted on 01/25/2018 10:53:15 AM PST by Sopater
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To: Publius

Ping


2 posted on 01/25/2018 10:54:27 AM PST by Sopater (Is it not lawful for me to do what I will with mine own? - Matthew 20:15a)
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To: 14themunny; 21stCenturion; 300magnum; A Strict Constructionist; abigail2; AdvisorB; Aggie Mama; ...

Part 2 of the Madison and war powers essays.


3 posted on 01/25/2018 11:09:01 AM PST by Publius ("Who is John Galt?" by Billthedrill and Publius available at Amazon)
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To: Publius

Just finished the prior post - very good lead. Marking this for later. Thanks for the pings.


4 posted on 01/25/2018 11:25:57 AM PST by greeneyes
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To: Sopater

One minor quibble regarding the War of 1812: at best, the US came away with a draw. One of the stated goals was the annexation of Canada (Manifest Destiny). That did not happen, but the impressment of US citizens into the Royal Navy did stop after the conflict. The Brits also stopped with their insistence that the US was “merely a colony in revolt”.


5 posted on 01/25/2018 11:52:04 AM PST by Don W (When blacks riot, neighbourhoods and cities burn. When whites riot, nations and continents burn.)
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To: Don W
at best, the US came away with a draw. One of the stated goals was the annexation of Canada (Manifest Destiny). That did not happen, but the impressment of US citizens into the Royal Navy did stop after the conflict. The Brits also stopped with their insistence that the US was “merely a colony in revolt”.
In 1820 a British military strategist announced that any repeat of the War of 1812 would lose Canada to the US. I wish I could remember the title of the book I read that in, but it must have been ten years ago, I think. The point was the geometric growth of the American population at that time meant that at the time that war was declared, so many boys had already been born in America who would be of military age in 1820 that there would be no question of resisting them if they invaded Canada after that. So the only crucial objective of the US government was simply to maintain its independence and sovereignty for the eight years from 1812 to 1820. Once accomplish that, and the British threat to the US as a polity was moot.

That book also asserted that there was a death in the British government which, if known in the US at the time of the war vote, might have prevented the war altogether. In a situation in which time is on your side, you would take any opportunity to delay which presented itself. Even a year or two delay would, by that calculus, have been quite favorable to the US.


6 posted on 01/25/2018 1:01:33 PM PST by conservatism_IS_compassion (Presses can be 'associated,' or presses can be independent. Demand independent presses.)
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To: Publius; Sopater

Thanks for the ping; post. Education/history/republic BUMP!


7 posted on 01/25/2018 1:02:53 PM PST by PGalt (.)
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To: Publius; Bull Snipe; dp0622; Maine Mariner; Bigg Red; QualityMan; DoodleDawg; Don W; SES1066; ...
The War of 1812 ping list.

USS Constitution v HMS Guerriere Madison precursor ping

Sorry about the dearth of content lately. That will teach me to take something on at the beginning of tax season.

A very interesting lesson for Madison, that without the ability to project force diplomacy is just talk.

Please FreepMail me if you want to be added to or removed from this somewhat low volume ping list. Ping requests gladly accepted.

Also note that posts pertaining to The War of 1812 will carry the keyword 1812 (clickable) for your searching pleasure.

8 posted on 01/25/2018 7:24:54 PM PST by NonValueAdded (#DeplorableMe #BitterClinger #HillNO! #cishet #MyPresident #MAGA #Winning #covfefe)
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To: NonValueAdded; Sopater; Don W; conservatism_IS_compassion; DoughtyOne; caww; SunkenCiv; All

Busy though you may be you have brought us a good article. I have done some reading on Jefferson and the Barbary “Pirates” which I think must have influenced Madison. Even before 1800 our diplomats discovered that the European approach to the shipping raids was to pay annual tribute. Jefferson decided that it was better to spend money building a Navy than paying tribute. The article mentions the Navy not being restricted to the Army’s two year limitation. In that era, it certainly took a lot longer to authorize a ship, fund, and build it, than it took to raise an Army given that so many citizens had their own hand arms. [On the subject of militias, which today have become the National Guard, I have a thought and would like feedback on the idea. We have seen how the National Guard has been sucked into long term combat service and used like the regular Army in recent wars. Therefore, I propose dividing the NG into two services with one being paid and trained more and perhaps differently than the other. The National Guard would be the higher paid entity and subject to the same uses as today. The other group would be a Home Guard which could only be used outside the United States in the case of a major attack on US territory (think Pearl Harbor). It’s normal purpose would be for use in domestic emergencies, think Katrina, Houston this past year, the wild fires in California, Hurricane Sandy, the LA Riots, and Ferguson. More training would be given in emergency response/riot control, and less in combat. Training for violent civil disturbance involving our citizens needs to be different than training for combat against foreign enemies.]

Although our aggressive action to stop predations of the Barbary pirates demonstrated to Europe that we were willing and able to pursue warfare beyond our borders, it did not prevent the War of 1812. It also showed what international cooperation could accomplish as we worked with the Swedes and the King of Naples to fight piracy. https://en.wikipedia.org/wiki/First_Barbary_War This next long, long article details the implications for this early period of our history foreshadowed our current situation with terrorism and international relations with our allies. https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1199&context=cjil

Given that there were two Barbary Wars, 1801-1805 and 1815-1816, and that these struggles affected the conduct and preparations of the War of 1812, perhaps the Barbary Wars should be included as a subcategory of the 1812 ping list. https://history.state.gov/milestones/1801-1829/barbary-wars


9 posted on 01/25/2018 11:01:57 PM PST by gleeaikin
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To: conservatism_IS_compassion; NonValueAdded

This is fascinating stuff. I didn’t even know the US ever had eyes on Canada!

And I love this ping.

I hope it keeps going.

Doesn’t have to be very often, but I hope it stays alive.

And important and too forgotten war.


10 posted on 01/26/2018 1:46:06 AM PST by dp0622 (The Left should know that if Trump is kicked out of office, it is WAR!)
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To: dp0622; NonValueAdded

Ditto


11 posted on 01/26/2018 7:07:45 PM PST by Laslo Fripp (The Sybil of Free Republic)
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To: Sopater
That’s why Madison says the framers “vested the question of war in the legislature” (my emphasis). It is also why he goes on the say that “the doctrines lately advanced,” by which he means congressional authorization of limited military actions without declaring war, “strike at the root of all these provisions, and will deposit the peace of the country in that department which the Constitution distrusts as most ready without cause to renounce it.”

Good examples of Madison's point, Feldman's viewpoint notwithstanding, are the Vietnam War and Bush's utterly misguided invasion of Iraq.

"Peace through strength" including a standing army seems like a good policy but doesn't necessarily exclude Congressional power to declare war. The threat of overwhelming force seems like a good deterrent against aggressors. However, without a constitutional amendment, we have a problem with Art. I, Sec. 8 Cl. 12.

12 posted on 01/28/2018 2:30:40 PM PST by Jim 0216
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To: gleeaikin
"Therefore, I propose dividing the NG into two services with one being paid and trained more and perhaps differently than the other."

What you are saying concerning the two types of militias is already true. If you read the militia act of 1903 which is what created our modern day national guard you will see there are two militias, the organized militia (national guards) and unorganized militia (the classic militia created at the founding of our country)

https://en.wikipedia.org/wiki/Militia_Act_of_1903

The unorganized militia can be created by any citizens and can be used for state domestic emergencies and indeed have been.
13 posted on 01/29/2018 5:06:33 AM PST by Old Teufel Hunden
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To: Jim 0216
"However, without a constitutional amendment, we have a problem with Art. I, Sec. 8 Cl. 12."

I'm not sure how you can create a constitutional amendment to further delineate what is a war that needs declared by Congress and what is an 'action' in which the President can make unilateral decisions on. The nature of war is ever changing. For instance, after 9/11 we went after Al Qada and the Taliban for harboring them. We essentially were making war with an organization, not a nation state. There is now cyber war with China, which have no doubt is a kind of warfare. We have sections of our Army/Air Force/Navy/Marines that are now dedicated to fighting cyber war.

It is a difficult thing to know who has what authority during a conflict. One thing that continues, is that though the President can unilaterally act in America's interests, the Congress has the power of the purse strings and can limit the President that way. That seems to be the best way to have a check and balance.

"Good examples of Madison's point, Feldman's viewpoint notwithstanding, are the Vietnam War and Bush's utterly misguided invasion of Iraq."

While the Vietnam War and Iraq War may not have had the classic declaration of war that was done in WWI, WWII, War of 1812 etc... lets not forget that the Congress did get a chance to vote on both wars. The Gulf of Tonkin resolution and the Authorization of use of Military Force against Iraq both were votes by Congress that explicitly gave the President the authorization to use armed forces and the Congress made them open ended. So perhaps we need to look at the Congress's role in this as well as the President. Both Congress's could have asked the President or could have drafted a declaration of war.
14 posted on 01/29/2018 5:16:54 AM PST by Old Teufel Hunden
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To: Old Teufel Hunden
According to Art. I, Sec. 8 Cl. 12 , Congress cannot finance an army beyond two years. Although I believe in the "Peace Through Strength" policy, Art. I, Sec. 8 Cl. 12 stands in the way without a constitutional amendment.

The Gulf of Tonkin resolution and the Authorization of use of Military Force against Iraq both were votes by Congress that explicitly gave the President the authorization to use armed forces and the Congress made them open ended. So perhaps we need to look at the Congress's role in this as well as the President.

Of course. It would appear that without a congressional declaration of war, the Gulf of Tonkin resolution and the Authorization of use of Military Force against Iraq (congressional politically-expedient "workarounds" to declaring war) would have been constitutionally limited to two years according to Art. I, Sec. 8 Cl. 12.

15 posted on 01/29/2018 9:49:19 AM PST by Jim 0216
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To: Jim 0216
"Of course. It would appear that without a congressional declaration of war"

In article 1 section 8, among the other powers of Congress it says:

"To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;"

You used the power as a noun (congressional declaration of war), but the constitution uses this as a verb:

The Congress shall have the power to:

declare war

It is not a distinction without a difference. The Constitution does not ever say in what manner the Congress should declare the war, whether it be a declaration of war or something along the lines of the "Gulf of Tonkin" resolution. Scholars have long argued over this.

As to your discussion about 1 Sec. 8 Cl. 12, didn't Bush and others after him have to go back to Congress several times over the course of the war to get funding for it? Seems to me though that politically this clause will not restrain the President's war making powers. No Congress can politically take the heat of withdrawing funds from the Army while it's in the field fighting battles. The best time to do it is in the debate and lead up to a vote on declaring war....
16 posted on 01/29/2018 11:20:14 AM PST by Old Teufel Hunden
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To: Old Teufel Hunden

I don’t see where the Constitution allows the President to go to war without Congress declaring war. “Declare war” whether a noun or a verb is pretty clear. Congress avoids doing such because, as with so many things, they perceive that ducking their obligations brings them political gain.

Congress is not constitutionally obligated to declare war because a President requests they do so. For goodness sake, that’s the whole point of the separation of powers. The President needs a congressional declaration (not a silent bill passage) to go to war.


17 posted on 01/29/2018 11:39:46 AM PST by Jim 0216
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To: Jim 0216
Let's give Bob Corker a crack at it. Like with the Senate's treaty power and with exceeding the debt limit, let them pass a bill allowing the President to declare war unless 2/3rds of Congress votes to overturn it. ;-)

-PJ

18 posted on 01/29/2018 11:48:14 AM PST by Political Junkie Too (The 1st Amendment gives the People the right to a free press, not CNN the right to the 1st question.)
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To: Jim 0216
"I don’t see where the Constitution allows the President to go to war without Congress declaring war."

You miss my point, the Gulf of Tonkin resolution and the Authorization for Use of Military Force Against Iraq Resolution of 2002 many argue is the Congress using it's constitutional power to declare war. The manner in which they do it (Declaration of War or a resolution for the authorization to use force) is not defined in the constitution.

"Congress is not constitutionally obligated to declare war because a President requests they do so."

And the opposite is true as well. The President is not going to prosecute a war just because the Congress "declares war". The way it has always worked is how many other big issues get done, the President works with his allies in Congress to draft a bill for consideration by the full Congress. So yes, practically speaking the President is going to request some type of war authorization and the Congress will vote yea or nea.
19 posted on 01/29/2018 12:04:54 PM PST by Old Teufel Hunden
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To: Old Teufel Hunden

I didn’t miss your point, I just don’t necessary agree with it. I think the meaning and intent of the wording of “declare war” is distinct from “passing a bill”. The wording strongly indicates a verbal declaration, not a silent passing of a bill.


20 posted on 01/29/2018 1:06:00 PM PST by Jim 0216
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