Pro-Congress Side of War Powers Debate Relies Upon Legislative Intent
If you agree with me after the last few posts, that the better reading of the constitutional text is that the Constitution gives the President some powers over war, and Congress others, and that the process to decide on war is political, then what does the pro-Congress view rely on? It really relies upon legislative intent, that there are indications of what the Framers believed the text meant.
The pro-Congress side believes that the Framers had a substantive goal -- reduce warmaking overall -- and used a certain process -- Congress's control over making war -- to achieve it. Let me quote from the most prominent constitutional law scholar, John Hart Ely, for this position. If the President and Congress had to agree on war, Ely believed, then the United States would enter fewer wars and those conflicts would arise only after reason and deliberation. As Ely put it,
the point was not to exclude the executive from the decision—if the president’s not on board we’re not going to have much of a war—but rather to ‘clog’ the road to combat by requiring the concurrence of a number of people of various points of view.
Ely relied on three pieces of evidence from the Framing to support this conclusion. First, during the Federal Convention James Madison moved, and the delegates agreed, to change Congress’s power from “make” to “declare” war, leaving to the President the power to repel sudden attacks. Second, James Wilson defended the Constitution in the Pennsylvania ratifying convention by declaring that “[t]his system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress” because the “important power of declaring war” is vested in Congress. Third, Joseph Story observed in his Commentaries that “the power of declaring war . . . is in its own nature and effects so critical and calamitous, that it requires the utmost deliberation, and the successive review of all the councils of the nation."
Ely and others also rely on a variety of quotes, some from Jefferson (on how the Constitution's vesting of power in Congress would tie up the "dogs of war,"), and from Madison about how the Constitution intentionally gave Congress the power to start wars with the vesting of the declare war power. The problem with these types of quotes is that they are historically anachronistic. Jefferson, for example, was not a Framer -- he was in Paris at the time of the writing and ratification of the Constitution. Madison's claim about Congress's power to declare war was on point, but it came in 1793, in the midst of the Helvidius-Pacificus debates over the Neutrality Proclamation. It could not have expressed the understanding of those who ratified the Constitution because it came well after the fact in the midst of a partisan fight over foreign policy. Same goes for Story -- his Commentaries on the Constitution comes decades after the ratification, and Story was too young himself to have participated (he would have been eight at the time).