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On Declaring Wars, and Ending Them: The Dangers of an Unlimited Presidency

The founders of the nation took the concept of war very seriously—why else would the subject garner so much attention in the Constitution? For most of the individuals involved in crafting that document, war was a simple fact of the human existence. For the century prior to the ratification of the Constitution, the American colonies, as well as the United States, had been involved in a series of wars that seemed almost unending. From 1689-1697, the War of the League of Augsburg ravaged the European continent, and naturally spread to the colonies, where it was called King William’s War. Only five years after its end, the War of the Spanish Succession commenced, running from 1702-1713, although the colonists tended to call it Queen Anne’s War. In the colonies, the 1740-1748 War of the Austrian Succession was called King George’s War. And, of course, in 1754, a young provincial officer, George Washington, launched an ill-advised attack upon a French fortification, a harbinger of the 1754-1763 French and Indian War. That last war was unique, in that it started in the colonies but spread to Europe (where it was called the Seven Years War), rather than moving in the opposite direction. The colonial rebellion against British control was driven in part by the aftermath of that last colonial war—the British government wished the colonists to pay the costs of their own defense, and created a series of taxes for that very purpose. Instead, an eight year war of independence ensued, with the first shots fired in 1775, and the peace treaty not finalized until 1783.

Of course, these conflicts cover only the declared wars between European powers, which the colonists for the most part did not provoke, and in many cases did not wish to participate in. There were also dozens of smaller conflicts on the North American continent, mostly with Native American groups, that created a climate of almost continual conflict within the colonial society. These included the Tuscarora War (1711-1715); the Yamasee War (1715-1717); Pontiac’s Rebellion (1763) and others. Thus, it should be unsurprising that the founders wished to clarify precisely how the United States could be expected to conduct war in the future.

In a representative democracy, the support of the population is absolutely vital for the successful prosecution of a war effort. And, we should make no mistake, the founders certainly assumed that most wars would potentially include a strategic objective of annihilation—something that the young nation was particularly vulnerable to, given its dispersed population, weak manufacturing base, and almost nonexistent standing military. Thus, the Constitution reserves the ability to declare war for the legislative branch, knowing that such a limitation would require popular support for such a declaration. But all of the authors of the Constitution had lived through the Revolutionary War, and the president of the Constitutional Congress, George Washington, was the living embodiment of the need for a single commander-in-chief to successfully direct a war effort. Thus, the founders placed the responsibility for conducting a war in the hands of the chief executive.

Wars cannot continue indefinitely—they may be won, or lost, or the combatants may agree to stop fighting without resolving their grievances, but they cannot become an ever-present aspect of daily life without running the risk of destroying the civilizations that are participating in them. For evidence of this fact, one might consult the history of the Punic Wars, or the Hundred Years War. The founders knew their history well, and understood that there must be a mechanism to terminate war, just as there was one to commence war. So, the chief executive was given responsibility for negotiating treaties, both in times of peace and in times of war. Much like the conduct of war, the conduct of diplomacy is not well-served when it is performed by a committee. But, just as a war required popular support, the end of one also required the consent of the people—meaning that the Senate gained the power to approve or disapprove treaties.

For the first 150 years of the nation’s existence, the system functioned relatively well. Wars were declared in 1812 (against Great Britain) and 1848 (against Mexico), but not declared in 1797 (against France) or 1861 (against the Confederacy). The Spanish-American War erupted under somewhat dubious grounds, to be sure, but was so short-lived that no significant sacrifice was required of the American public. The US joined World War I nearly three years into the conflict, and the Senate rejected the Treaty of Versailles in the aftermath, but American standing in the world was not threatened by the need to negotiate a separate peace with Germany.

During World War II, the United States made its last formal declarations of war, in three separate declarations against Bulgaria, Hungary, and Romania, all on June 4, 1942. The creation of the United Nations in the aftermath of World War II was designed, at least in theory, to prevent member states from engaging in wars against one another. Thus, when the United States went to war on the Korean Peninsula in 1950, it did so under the aegis of a United Nations operation—and General Douglas MacArthur was appointed the UN forces commander, in addition to commanding the American troops involved in the conflict. However, there was not an accompanying declaration of war by the legislature.

The Vietnam War embroiled the United States in more than a decade of fighting, costing the lives of more than 50,000 U.S. personnel. The president’s authority to engage in the conflict came primarily from the Gulf of Tonkin Resolution, passed on August 10, 1964. That document did not provide unlimited power for the president to conduct military operations in southeast Asia, but it did allow both the Johnson and the Nixon administrations to keep troops engaged in the region. In 1971, Congress repealed the Resolution—but the war continued, with Nixon claiming he could conduct it as the commander-in-chief of the nation’s armed forces.

Congress found itself in a quandary that threatened to provoke a Constitutional crisis—there was certainly no support for a declaration of war against North Vietnam, but there were a number of questions about whether a president could conduct military operations without such a declaration, or some other form of permission from Congress. To resolve the crisis, Congress passed the War Powers Resolution in October, 1973. President Nixon vetoed the resolution, but his veto was overridden on November 7, making the War Powers Resolution law. According to that statute, the president must notify Congress of any commitment of military forces within 48 hours, and must withdraw all forces within 60 days if Congress does not specifically authorize their use. Since the passage of the Resolution, Congress has authorized force in a number of locations, including the 1990-1991 Persian Gulf War, the 2002 invasion of Afghanistan, and the 2003 invasion of Iraq. But, the question remains whether the War Powers Resolution, which effectively functions as a constitutional amendment (but was not passed as such, and thus did not require the acquiescence of the states), is actually constitutional.

To understand why the War Powers Resolution was a necessary measure, it helps to imagine a scenario that, at least so far, has not come to pass. Consider the possibility that Congress declares war upon a foreign state, thus handing the power to the president to conduct that war. During periods of declared war, there are few limits upon presidential power, although past wartime presidents have chosen to restrict their own behaviors (to include conducting presidential elections during wartime). Our imaginary war can only end when the president negotiates a treaty to end it—but what if the president in this scenario refused to negotiate? In that case, the Congress would have effectively handed over dictatorial power to the president, with no effective mechanism to offer constraints. Should the president decide not to hold elections, it might be impossible to force the issue—Congress might have inadvertently created a dictator-for-life, through the act of declaring war. That is not something that particularly worried the founders—the office of the presidency was much weaker and less coveted at that time, and there was little expectation that the republic would grow enamored with engaging in foreign wars. But, in the modern era, the presidency is the most powerful position in the world—constrained only by the consent of the governed and the inherent term limits imposed by the need to hold elections every four years. The War Powers Resolution recognized the changes that had occurred, both in the American standing in the world, and in the relative power between the legislature and the executive, and served to restore at least some balance to the relationship. It is not a perfect solution—a constitutional amendment, however unlikely, would offer a substantial degree of permanence to what currently exists. But, when compared to the dangers of offering unfettered power to any American president, coupled with the most powerful military the world has ever seen—the War Powers Resolution seems a very wise and effective compromise.


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