The Philadelphia Convention & James Wilson's Defense
In the last post of my series on the war powers debate, I explained that the pro-Congress side of the debate hinges on the shaky notion of legislative intent. The two most important pieces of evidence on the pro-Congress side are the change in language in the Philadelphia Convention and James Wilson's defense of the Constitution.
As to the amendment of the draft of the Constitution, it is important to recognize that the journals of the federal convention were kept secret until Madison's death in 1836. They could not have influenced the bodies that gave the Constitution its legal authority -- the state ratifying conventions. All the ratifying conventions could go on was the fact that the draft Constitution gave Congress the power to declare war, where the Articles had used a much broader phrase. But even if the secret proceedings at Philadelphia are to be given precedence, it seems clear that the debate on amending Congress's war powers clause was confused -- it took place late in the afternoon on a Friday in a hot, muggy Philadelphia summer -- and its result was to narrow Congress's power over war. Some argue that this should be understood as expressing an intent to recognize the President's authority to repel sudden attacks, as one delegate said. But this would have been already understood, it seems to me, even if the language had gone unamended.
As for Wilson, it is again worthwhile to look at the larger context of his claim. Looking at the larger discussion, Wilson is discussing the power to make peace, rather than war. He is arguing that the Constitution has a built in bias against war. Again, I think it depends on what "declare war" means. In my view, Wilson is talking about bringing the country into a state of full, total -- or what the Framers called "perfect" -- war. That would bring the greatest risk of calamity, and that is what is vested in Congress. But this does not directly address the question of hostilities. I do admit that the Wilson quote is the best piece of evidence on the other side, though it is not as compelling to me as the evidence from the constitutional text and other bits of history.
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Jan '11
Re: The Philadelphia Convention & James Wilson's Defense
Although the records were kept secret until 1836, occassional references to what occured in the Convention were noted. Wilson himself does so at the PA ratification convention - on, I might add, the struggle of 13 sovereign states to agree to anything!
Records were sealed, and Wilson may have been discussing peace, but it was obvious that something had changed regarding war by simply comparing the war languages of the Articles: that Congress could "make" war, to Congress to "declare" war. As I have said in every post, this is about sovereignty. The "make" was an executive function - to do it (warring) only the Confederation Congress wielded this form of power because it was granted the executive power. When a separate Executive emerged from the Constitution, this royal power had to be placed in the body where sovereignty was represented at the federal level, the Congress.
Of course a narrowing of the Congressional war-making occurred: there was an actual executive actively fight the war. Again, sovereignty as exercised through Congress empowers the Executive to fight and take war to the enemy. At the same time, having a single executive with dispatch can help fight an immediate and surprise attack/invasion.
Re: The Philadelphia Convention & James Wilson's Defense
Professor, let me speak on behalf of those that need you to dumb it down, because I'm the leader of the pack of those who need you to do that.
Is your assertion that the Constitutional language on congressional declaration of war is our national appendix, a vestigial organ no longer of any usefulness to us?
If not, what then are the conditions which must appear in the world for the President to need it before acting? Or does he never need it?
Excuse my ignorance, but I was born in 1963. In my lifetime I've had soldiers die for me all over the globe, but never have I seen a Congressional declaration of war.
Sincerely,
Confused in Asbury Park, NJ