Why Do Presidents Now Declare War Instead of Congress? ... Case Study ... War of 1812

The bicentennial of the War of 1812 is creeping up on us. Big deal. If remembered at all, the War of 1812 is too often incorrectly thought of as a sideshow of military ineptitude squeezed between the earlier glories of the American Revolution and the later traumas of the Civil War. But the war boasts what was by far the closest declaration of war in U. S. history and recalls a time when that war power was firmly entrenched in the legislative branch of our government.

In 1812, with scholarly James Madison occupying what was still called “the President’s House,” the fledgling United States had many grievances with Great Britain. Impressment of American sailors on the high seas, a lust for Canada by Henry Clay and his fellow war hawks, and the seizure of American ships over trade restrictions all rankled but had fallen short—both in Congress and the country at large—in producing one clarion summons to war.

Architect of the Constitution that he was, James Madison knew full well that the power to declare war was firmly lodged in Congress by Article 1, Section 8. Throughout the spring of 1812, Congress vacillated on exercising this power, at several points coming close to adjourning until fall to delay confronting the issue. President Madison vacillated as well, time and again delaying sending a war message to Congress. Some contend that Madison finally did so only to appease Clay and war hawks in the western states whose electoral votes he would need in the fall election and in the hope that the declaration of war itself—without ensuing hostilities—might loosen the jaw of the British lion.

On June 1, 1812, Madison’s war message was finally submitted to both houses of Congress. Given the custom of the day, it was read by clerks who droned on without inflection or emotion for about half an hour. Not only was there no television coverage, but both houses met in secret executive session. The decision before Congress, Madison asserted was whether the country would “continue passive under these progressive usurpations,” or respond with force and “commit a just cause into the hands of the Almighty Disposer of events….”

In Henry Clay’s House of Representatives, the answer came quickly, if less than decisively. Many congressmen, it seems, had recently returned from spring visits home having found no groundswell of support for war. Thus, after vigorous debate, the House of Representatives passed Madison’s declaration of war on June 4 by a less than resounding vote of 79 to 49. “I think,” bemoaned New Hampshire’s Josiah Bartlett, “the business was too hasty.”

Over in the Senate, things moved more slowly but also more contentiously. During the next two weeks, the Senate narrowly voted down a variety of amendments—one of which would have stopped short of full-scale war but authorized the issuance of letters of marque and reprisal against British shipping. Showing the young nation’s audacity, another offered amendment would have issued such letters against both British and French ships.

Finally, on June 17, 1812, the United States Senate voted 19 to 13 for Madison’s original declaration of war. Almost two centuries later, this first such declaration of war by Congress remains the closest war vote in American history. Upon learning of it, President James Madison was said by one observer to be “white as a sheet.”

Subsequent to 1812, Congress exercised its war powers five times: against Mexico in 1846; Spain in 1898; Germany in 1917; and, within three days of each other, against Germany and Japan in 1941. On each occasion, Congress acted in response to a president’s war message and all votes were close to unanimous, save the House of Representatives’ 373 to 50 vote to enter World War I. But Congress still took its power to declare war seriously. “By God,” one senator scolded McKinley’s war supporters in 1898, “don’t your President know where the war-declaring power is lodged?”

After World War II, came Korea, Vietnam, Desert Storm, and of course, now Iraq. Arthur Schlesinger, Jr. chronicled the escalation of presidential power in the first two conflicts in The Imperial Presidency. In all four, Congress was neither asked by the respective presidents to issue a declaration of war nor did it initiate one on its own. In each instance, Congress essentially surrendered its war powers to the executive branch.

Doubtless few congressmen would have questioned James Madison’s armed response in 1812 if the British fleet had suddenly appeared off Baltimore and started lobbing shells as it did two years later. But even Clay’s House of Representatives would have most certainly raised hue and cry, if Madison had acted unilaterally—say, to invade Canada.

The contrast between James Madison reluctantly sending a war message to a divided Congress and modern-day presidents committing troops to combat operations without a congressional declaration of war is quite startling. Why after 1812 has Congress either overwhelmingly supported a president’s request for a declaration of war or given him a bye when faced with his unilateral military action? The political fall-out from the War of 1812 may provide at least part of the answer.

While the war issue in 1812 was not rigidly defined along party lines, generally the Federalists opposed the war, while the Jeffersonian Republicans (forerunners of Andrew Jackson’s Democrats) favored it. Two years later, the most anti-war of the Federalists went so far as to convene at Hartford, Connecticut, and debate constitutional amendments designed to weaken the central government. There are some who insist that they debated outright secession.

As they did so, things looked pretty bleak for James Madison—his capital was in ruins, the British fleet had a stranglehold on American commerce, and a good third of the country was still ambivalent, if not outright hostile, to what they called Mr. Madison’s War. Within a few months, however, Madison’s peace commissioners had managed to win a draw at the negotiating table, and even more incredulously, Andy Jackson had dealt British regulars a smashing defeat at New Orleans.

It hadn’t been pretty, but by gosh, the Americans had survived. Madison donned the cloak of victor and two years later hand-picked his successor. Those who had opposed the war, particularly the Federalists who had gathered in Hartford, were relegated to history’s footnotes. In fact, the Federalist Party sputtered its last gasps and soon ceased to exist. History, it seems, is indeed the record of the winners.

Congressional involvement in declaring war is, of course, no guarantee of military success. One need look no farther than the War of 1812 for proof of that. Three attempts to invade Canada failed and many of the vaunted naval victories Americans came to celebrate had little or no strategic value. Only a major naval victory on Lake Champlain and Jackson’s legendary stand before New Orleans held the contest to a military stalemate.

But politically, the War of 1812 was in fact a big deal. Not only did the war coalesce eighteen, loosely confederated states into a truly national union, but also it marked the beginnings of a national psyche that would carry the country across the continent. The War of 1812 also marked the end of one of the most short-lived, but rudimentary of the constitutional checks and balances between the executive and legislative branches— the power to declare war.

After the War of 1812, never again would Congress debate so vigorously and vote so narrowly to declare war. The political risks of doing so and ending up on the losing side had proven too high. Still, those who question unilateral presidential decisions to wage war today might do well to encourage their elected representatives in Congress to remember “where the war-declaring power is lodged.” It’s gotten a little dusty since 1812, but it’s still there.