David M. Kennedy: Founders' Fuzziness (Congress Vs. President on warmaking)





[Mr. Kennedy, winner of the Pulitzer Prize in 2000, is a professor of history at Stanford.]

... War gave birth to the U.S., but when the men who made the American Revolution went on to make a Constitution, they agonized over the rules for the new Republic's warmaking powers. They had no doubt that the state's very existence depended on its ability to field an armed force swiftly and effectively. Yet they also read history as a sorry record of warlords, monarchs and tyrants who exercised power arbitrarily. The founders meant to create a new political order in which sovereignty would reside not with the rulers but with the people, especially when it came to the fearsome sanction of military power.

Thus they invested in Congress--the most broadly representative and directly accountable branch of government--the authority to "declare War," to raise and support armies (while specifying that "no Appropriation of Money for that use shall be for a longer term than two years"), to "provide and maintain a Navy" and to summon into federal service, organize, arm and discipline the state militias. But they also anointed the President--theoretically, at least, somewhat insulated from popular whim by the Electoral College--as the "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several states" when called into national employ....

Nowhere has the fabled system of checks and balances proved more contentious. Because so much is at stake in questions of war and peace, the founders in effect crafted an invitation to perpetual conflict between Congress and the President. On no occasion has Congress compelled the President to undertake a military action against his will (although it came close to forcing John Adams to make war against France in the 1790s)--providing at least some support for the notion that the processes of democratic deliberation can help keep the peace. On some occasions Congress has served as a kind of sheet anchor, restraining or even extinguishing the martial urge. In the isolationist 1930s, for example, Congress passed several neutrality statutes, aimed at keeping Franklin D. Roosevelt from intervening in the brewing international crisis that finally erupted as World War II. And on only five occasions has Congress formally declared war--each time in response to a presidential request: the War of 1812, the war against Mexico in 1846, the Spanish-American War in 1898 and World Wars I and II.

But Presidents have consistently dominated this long-running political contest--conspicuously including F.D.R., who eventually wore down isolationist sentiment and took the country into World War II. And while there have been only five formally declared wars, the U.S. has deployed its armed forces abroad more than 200 times, usually with some kind of congressional assent or at least acquiescence--from Thomas Jefferson's naval expedition against the Barbary pirates of North Africa to numerous interventions in Central America and the Caribbean, as well as Vietnam, Afghanistan and Iraq....

Congress continues to wield the power of the purse, but if history is any guide, the legislators will have little stomach for withholding resources from troops already in the field. Once again the President will have the upper hand. Despite the founders' best intentions, the world's oldest democracy still has a chronically deficient mechanism for bringing democratic practices meaningfully to bear on the waging of war.

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William R. Everdell - 1/31/2007

The Framers were fuzzy because they had to find a way to bring delegates like James Wilson, who wanted a one-person executive elected separately from the Congress, together with the likes of Roger Sherman, who wanted the Congress to elect a new ad hoc executive every time it passed a law creating a program that needed execution.

The fight between legislatures and executives—assemblies and kings—is very old. Among former legislative (a.k.a republican) champions who still move me are Sherman of Connecticut, Representative Thaddeus Stevens of Pennsylvania (who managed the impeachment of President Johnson and restored legislative supremacy after the Civil War) and Senator Thomas Corwin of Ohio, who stood against the "egregious, palpable misrepresentation of fact—this bold falsification of history," as he called president Polk's excuse for legislative funding of the Mexican War. A paragraph of Corwin's 160-year-old speech is appended here.

"While the American President can command the army, thank Heaven I can command, the purse. While the President, under the penalty of death, can command your officers to proceed, I can tell them to come back, or the President can supply them as he may, He shall have no funds from me in the prosecution of a war which I cannot approve, That I conceive to be the duty of a Senator, I am not mistaken in that. If it be my duty to grant whatever the President demands, for what am I here? Have I no will upon the subject? Is it not placed at my discretion, understanding, judgement? Have an American Senate and House of Representatives nothing to do but obey the bidding of the President, as the army he commands is compelled to obey under penalty of death? No! The representatives of the sovereign people and sovereign States were never elected for such purposes as that."

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