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The Constitution, Congress and the Power to Declare War

by Joyce Appleby on Sep 23, 2002

Joyce Appleby

In the midst of talk of war, it’s hard to focus on the U.S. Constitution. But President Bush’s proposed “regime change” in Iraq has raised a constitutional issue that will affect the United States long after the present crisis with Iraq has passed.

At no point in the long run-up to a possible strike at Iraq has the president ever indicated that he was dependent upon Congress for a declaration of war. Yet that is exactly what the Constitution requires. Bush’s announcement after Labor Day that he would consult with Congress only exacerbates the problem; seeking congressional approval is not a presidential choice, but a constitutional imperative.

The Founding Fathers balanced the power of the president as commander-in-chief with that of Congress, the people’s representatives — the one to command the nation’s armed forces, the other to decide when the United States goes to war. They juxtaposed the will of the executive against the deliberative function of members of Congress, whose constituents would bear the costs of war.

Not since 1941, when Franklin Delano Roosevelt addressed a joint session of Congress the day after Pearl Harbor, has Congress voted to declare war. During the protracted struggle with the Soviet Union following World War II, the very concept of war became muddled. The United States fought proxy wars, approved covert operations and engaged in United Nations actions. Such Cold War conflicts nurtured an imperial presidency in which Congress became less and less involved, and less and less informed about the conduct of foreign policy because so much of it was conducted in secret.

Clandestine operations and alliances made a mockery of Woodrow Wilson’s “open covenants, openly arrived at” and Roosevelt’s fight for Four Freedoms — freedom of speech and expression, freedom of worship, freedom from want and freedom from fear. The stark choice between a world of democratic governments and totalitarian regimes was said to justify the deviation from earlier American ways. Cold War practices were anomalous, but anomalies that last forty years create a collective amnesia. Most people in government — indeed most Americans — have been born since 1941.

To recall American leaders to the Constitution’s provision of congressional authority for declaring war, more than 1,200 American historians turned to one of those old ways — that of citizens petitioning Congress for a redress of grievances.

On Constitution Day, Sept. 17, they presented Congress with a petition urging it to assume its constitutional responsibility to determine whether to go to war with Iraq. To leave the president solely in control of war powers, the petition said, worked to the “detriment of our democracy and was in clear violation of the Constitution.”

This provision about war goes directly to the balancing of powers that dominated the thinking of the delegates who wrote the U.S. Constitution during the summer of 1787. They anticipated that the president would seek to extend his powers, but relied upon an equally alert Congress to oppose him.

“The greatest security against the gradual concentration of several powers in the same department,” James Madison wrote in Federalist Paper No. 51, “consists in giving those who administer each department the necessary constitutional means and personal motives to resist the encroachments of the others.” And then in one of the most memorable passages of these famous papers, Madison added: “Ambition must be made to counteract ambition.Ý The interest of the man must be connected with the constitutional rights of the place.”

What the Founding Fathers did not imagine was a supine Congress that failed to claim its rightful authority in deciding when the nation would go to war. Yet that is one of the most solemn tasks of representatives in a constitutional democracy like ours.

If the present situation persists the distinction between presidential and congressional war powers, blurred during the Cold War, will remain befogged, and presidential powers will continue to expand at the expense of Congress. We will have silently amended the Constitution through collective neglect.

Joyce Appleby, UCLA emerita professor, is author of "The Relentless Revolution: A History of Capitalism" (2010).