"Declaring War" In Light of Article VI of the Articles of Confederation
After looking at the text of the Constitution, for me the next most important places to look for an understanding of war powers -- or any other constitutional provision -- are the other authoritative American legal documents of the Framing period. I have in mind the Articles of Confederation, which acted as the existing national constitution at the time of the Constitution's drafting and ratification, and the state constitutions, which were the next most important constitutional documents that created state governments that were in many ways more powerful than the national government at the time.
I think careful consideration of these provisions will show that the power to "declare war" could not mean the power to authorize, commence, or start military hostilities. Here is the provision on warmaking from Article IX of the Articles of Confederation:
The united States in congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article . . .
Again, as with my earlier argument on Article I, Section 10 of the Constitution, Article IX is revealing because it does not use the phrase "declare war" to mean start or begin military hostilities. If the Framers had wanted to grant Congress all of the power to decide on war, they would have used the same phrase as Article IX: "Congress shall have the sole and exclusive right and power of determining on peace and war." Also notice that Article IX uses the words "sole and exclusive," meaning to me that no other institution has any say in making war. Again, our Constitution of 1787 does not use that language -- as it does, for example, with the trial of impeachment by the Senate, which the Supreme Court has indeed read to exclude any other branch from participating.
Instead, the Framers of the Constitution of 1787 gave Congress the power to "declare war," which is a narrower power. Again, reading the document as a whole, the Articles of Confederation show that declaring war is thought of as a different power than making war. Article VI of the Articles of Confederation, which Article IX cites, further declares:
No State shall engage in any war without the consent of the united States in congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the united States in congress assembled can be consulted; nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the united States in congress assembled, and then only against the kingdom or State and the subjects thereof, against which war has been so declared, and under such regulations as shall be established by the united States in congress assembled, unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the united States in congress assembled shall determine otherwise.
Article VI here shows that declaring war is about changing a legal status between nations, one necessary so that certain other steps, such as issuing a letter of marque and reprisal, could occur. But notice that Article VI does not limit states in responding to hostilities with other types of military force until after declaration of war.
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Jan '11
Re: "Declaring War" In Light of Article VI of the Articles of Confederation
Professor Yoo is ignoring the difference in the nature of state sovereignty as promulgated in the AofC and Art. I Sec. 10. The Confederation could not prohibit the states from engaging in war because of the Article II of the AofC, which stated that "each state retains it's sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States in Congress assembled." Hence, a stark limiation on the States' war-making power could not be achived because of this part of the Confederation, let alone the rest of what Professor Yoo states.
Also: at the Confederal level, there was only the Congress. The powers granted the Confederation were the Executive powers of the Monarch as exercised by the collective sovereignty of the states. States could possibly engage in war because only they contained any elements of popular sovereignty; the Confederation Congress could not act upon indiviudals. The Constitution altered this relationship by creating separate branches which contained the sovereignty of both branches. Sovereignty was purposely stripped from the Executive and placed in Congress where, as I stated in the previous post, it represented people and states.
Jan '11
Re: "Declaring War" In Light of Article VI of the Articles of Confederation
When accepting the Articles, the States, and not the people of those states, surrendered elements of their sovereignty, parts of which Professor Yoo's mentioned. Most of what was surrendered was the executive, or federative powers. Yet, they did not surrender all aspects of this, and, in fact, they accepted Article II which guaranteed their sovereignty. Part of that sovereignty was making war, but not to the degree as it interfered with other state powers of the Articles. .
The Constitution alters this relationship by taking more of the states' sovereignty. It now explicitly denied the states the authority to engage in war in only the most extreme circumstances. The new Congress wielded powers beyond the federative, making it less an "executive legislature." Possessing both federative and legislative powers, and trying to represent both popular and state sovereignty, as well as having a sperate executive branch made the war issue even more problematic. The Executive could only retailite in emergencies because he lacked soverign power. Since Congress did possess elements of soverginty, only it could exercise that authority and declare war.
Sovereignty was a key arguments of the founding; remembering this cast these arguments in different, and clearer, relief.
Oct '10
Re: "Declaring War" In Light of Article VI of the Articles of Confederation
Aaron,
You make a good argument. However, the Constitution establishes a limited dual form of sovereignty; the sovereignty of the States and the sovereignty of the People, united under the Constitution as the supreme law of the land. The disagreement over this dual sovereignty is what led up to the civil war. The Secessionist States believed that, with the Declaration of Independence, royal sovereignty passed to the States, with "States Rights" trumping the sovereignty of the res publica: This was the Whig (anti-federalist) position. The Federalist position (and Lincoln's as well) was that, with the Declaration of Independence, sovereignty passed to the People (the res publica); which was why Lincoln often referred to the Union as a "regular marriage".
As I stated in my post here, the President is the Chief Executive Officer of the United States.
It is the Congress who represents the People. Granted, the Senate has an aspect of representation of the States as well, but especially since the 17th Amendment, it too, along with the House, act as the Board of Directors, representing the Members (the People).
Edited on Mar 26, 2011 at 5:31pmJan '11
Re: "Declaring War" In Light of Article VI of the Articles of Confederation
G.B., Federalists in the ratification struggle, and rarely before it, did not make the Declartion argument. That is a development of the Jacksonian era. During the founding period, the consensus was that royal power fell to the states and was partially surrendered under the Articles. The argument for a popular sovereignty was a key Federalist argument during ratification but this was not at the expense of state sovereignty. Their argument was the partly federal, partly national. Of course, Antis didn't like this believing that state soverignty would fall victim to this popular sov. All of this is to say, that in 1776-1787, few seriously argued what would becomethe mainstay of 1830s, 1850s Whig and Republican arguments. Without trying to be provocative, Lincoln's argument was bad constitutionalism and even worse history.
Oct '10
Re: "Declaring War" In Light of Article VI of the Articles of Confederation
Maybe so, but that point of view did prevail.
Jan '11
Re: "Declaring War" In Light of Article VI of the Articles of Confederation
It did indeed, but it still doesn't make it right!
But,really, what I am trying to do is explain the argument at the time of the founding and demonstrate, with respect, what I see to be serious problems in Professor Yoo's overly expansive ideas on executive power. He is mistaken to tie his notions to the founding period.
I also find that when discussing issues of state sovereignty during the founding period, it inevitably becomes tied to the Civil Wr. This is understandable, I suppose, but it does a disservice to the context of the founding. I always enjoy our talks, G.B.!
Edited on Mar 26, 2011 at 7:15pmOct '10
Re: "Declaring War" In Light of Article VI of the Articles of Confederation
Aaron N. Coleman: It did indeed, but it still doesn't make it right!
But,really, what I am trying to do is explain the argument at the time of the founding and demonstrate, with respect, what I see to be serious problems in Professor Yoo's overly expansive ideas on executive power. He is mistaken to tie his notions to the founding period.
I also find that when discussing issues of state sovereignty during the founding period, it inevitably becomes tied to the Civil Wr. This is understandable, I suppose, but it does a disservice to the context of the founding. I always enjoy our talks, G.B.! · Mar 26 at 7:13pm
Edited on Mar 26 at 07:15 pm
What would you consider the most reliable sources supporting your perspective on the issues of sovereignty and the powers of the Executive at the time of the founding?
Jan '11
Re: "Declaring War" In Light of Article VI of the Articles of Confederation
G.B.,
Without sounding dodgy, it is more an embarrassment of riches than limited citations when it comes to both issues. I honestly couldn't point to just a few to prove my point. Of course, there is the radical Whiggery of the 17th C - Sydney, Harrington, etc. Cato's Letters and James Burgh are wonderful and important influences upon the founders on the issues of limited executive (there's more there of course). Their own ideas of executive power as demonstrated in the initial state constitutions. Of course, once we move into the 1780s, the Convention and ratification struggle are replete with discussions on executive power.
On State Soverignty, the few major arguments and controversies from 1777-1788 don't have this issue at their core. The Debates on the Burke Amendment, adoption the Articles, the Treaty of Peaces (which acknowledges the independence of the States and not the Congress!), the debate on the Treaty (there was one, trust me), and then the Constitution.
I hope you don't think I'm dodging, but there really is a wealth of information on these topics. If you list as list of my favorites, I'd be happy to supply it.
Jan '11
Re: "Declaring War" In Light of Article VI of the Articles of Confederation
But for a few particulars:
Cato's Letters, esp. after the first few.
Paul Smith, ed. Letters of Delegates to Congress, 1774-1789 24vols (Washington, D.C.: Library of Congress, 1976-2000), esp. vols. 4 and 6 which discuss the debates on the drafting of the Confederation and (in vol. 6), the Burke Amendment.
Richard Bland, "An Inquiry into the Rights of British Colonies," 1766
Alexander Hamilton, "The Farmer Refuted," 1775
Thomas Jefferson, "Summary View . . ." 1775
Theophilius Parson, "The Essex Result," 1778
John Adams, "Novanglus" and "Thoughts on Government," 1774 and 1776
Merriweather Smith. “Observations on the Fourth and Fifth Articles of the Preliminaries for a Peace with Great Britain designed for the Information and Consideration the People of Virginia.” Richmond: Dixon and Holt, 1783.
Federalist Papers
Nearly all the suggestions for Amendments from the Ratification (many actually use the languge of Article 2 of the Confederation)
Anti-Fed Papers, esp. Brutus, and Federal Farmer
All is good stuff!
Re: "Declaring War" In Light of Article VI of the Articles of Confederation
I hope I haven't missed it, and I pray I'm not being simplistic, but has Prof Yoo or any of our members addressed in comments what exactly the Constitutional Declaration of War is for, if the President is permitted to run a war without it? What purpose does it then serve?
May I have an example from Prof Yoo or anyone who side with him when exactly the Declaration of War by Congress is a requirement (if they think so at all)?
It appears to me that a great deal of work went into drafting the Constitution, and I don't imagine the founders took such pains to draft a meaningless clause.
Oct '10
Re: "Declaring War" In Light of Article VI of the Articles of Confederation
Tommy De Seno: I hope I haven't missed it, and I pray I'm not being simplistic, but has Prof Yoo or any of our members addressed in comments what exactly the Constitutional Declaration of War is for, if the President is permitted to run a war without it? What purpose does it then serve?
. · Mar 27 at 2:08pm
"In contrast to an authorization, a declaration of war in itself creates a state of war under international law and legitimates the killing of enemy combatants, the seizure of its property, and the apprehension of enemy aliens...With respect to domestic law, a declaration of war automatically triggers many standby statutory authorities conferring special powers on the President with respect to the military, foreign trade, transportation, communications, manufacturing, alien enemies, etc".
From: Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications , by the Congressional Research Service.
Oct '10
Re: "Declaring War" In Light of Article VI of the Articles of Confederation
Aaron,
As I have re-read all of your posts and considered your arguments, I find myself in agreement with most of what you say, with this exception: You seem to argue that, subsequent to the Constitution, sovereignty passed to the Congress. This is where you and I disagree and why I am supportive, at least in theory, of a stronger Executive than you seem to be. It is my argument that subsequent to the Constitution sovereignty passed to the Constitution.
I hope that we will agree that sovereignty is defined as: supreme authority within a territory. If this is the case, then the Constitution, as clearly stated in "the supremacy clause (Article VI, para 2) is the 'supreme law of the land"; the supreme law being the supreme authority.
Therefore, I repeat my previous argument that the dual sovereignty of the States and the People is reflected in the Executive and Legislative branches of government. And that, regarding war, as in all of the other aspects of the separation of powers under the Constitution, there is a political dynamic that is played out differently under varying circumstances. IMHO, this flexibility is what the founders intended.
Edited on Mar 27, 2011 at 7:31pmJan '11
Re: "Declaring War" In Light of Article VI of the Articles of Confederation
I appreciate the remarks Good Berean! In all my readings of the founding, I can't recall an argument that claimed a sovereignty in the President. I could be wrong, but I dont remember it. There might be an outlying argument, but it would be just that, an outlier. The dual sovereignty that existed want between Congress and President. It was between the federal government and the States. the Constitution is supreme in only those granted powers, of course, and only congress represents the people and states. The only Executive power the Presidents wields without any check whatsoever is the Pardon power, all else has to have at least on branch's acquiesce, which, as you know, is the Senate. That is not a coincidence, as it originally represented the States. I agree with you, there is great degree of flexibility in the system, but I think the founders would be stunned by the President-centered government we have. Of course, Congress has allowed this to happen. If we could only have them resort their constitutional powers! Thanks again for you careful readings of my posts. I have enjoyed this back and forth!