Article 1, Section 8, Clause 11

Document 17

William Rawle, A View of the Constitution of the United States 109--11 1829 (2d ed.)

The power of declaring war, with all its train of consequences, direct and indirect, forms the next branch of powers exclusively confided to congress.

The right of using force, or of making war, belongs to nations, so far as it is necessary for their defence and the support of their rights. But the evils of war are certain, and the event doubtful, and therefore both wisdom and humanity require, that every possible precaution should be used before a nation is plunged into it. In monarchies, the king generally possesses this power, and it is as often exercised for his own aggrandizement as for the good of the nation. Republics, though they cannot be wholly exonerated from the imputation of ambition, jealousies, causeless irritations, and other personal passions, enter into war more deliberately and reluctantly.

It is not easy to perceive where this power could, with us, be more prudently placed. But it must be remembered, that we may be involved in a war without a formal declaration of it. In the year 1800, we were engaged in a qualified, but public, war with France; qualified, because it was only waged on the high seas--public, because the whole nation was involved in it. It was founded on the hostile measures authorized by congress against France, by reason of her unjust aggressions on our commerce--yet there was no declaration of war. In such a war we may also be involved by the conduct of the executive, without the participation of the legislature. The intercourse with foreign nations, the direction of the military and naval power, being confided to the president, his errors or misconduct may draw hostilities upon us. No other restraint appears to exist, than that of withholding the supplies to carry it on, which indeed congress can in no case grant beyond the term of two years. But in England, the king is, in this respect, equally dependent on the parliament, and its history shows that this dependence is not always adequate to prevent unpopular wars.

The several states are, by another clause, prohibited from engaging in war, unless actually invaded, or in such imminent danger as will not admit of delay.

But although congress alone can subject us to the dubious results of formal war, a smaller portion of the government can restore us to peace. Hostilities may be terminated by a truce, which the president alone (it is conceived) may make. The duration of a truce is indefinite. It suspends all hostilities while it continues in force; but it does not revive treaties which were broken by the commencement of the war, or restore rights of any sort, which were suspended by it. It may be general or partial--it may extend to all places and to all the mutual forces of the belligerents, or it may be confined to particular places or particular armaments. When it ceases, it is unnecessary to repeat the declaration of war. But before its conventual termination, unless some fresh cause of complaint should have arisen, it would be inconsistent with good faith to renew hostilities.

Treaties, by which peace is completely restored, may, as already shown, be made by the president and senate alone, without the concurrence, and against the will of the house of representatives.

It has been made a subject of doubt, whether the power to make war and peace, should not be the same, and why a smaller part of the government should be entrusted with the latter, than the former. Sufficient reasons may certainly be assigned for the distinction. Peace is seldom effected without preparatory discussions, often of length and difficulty, the conduct of which, of course, belongs only to the president and senate. War is always an evil; peace is the cure of that evil. War should always be avoided as long as possible, and although it may happen to be brought on us as before observed, without the previous assent of congress, yet a regular and formal war should never be entered into, without the united approbation of the whole legislature. But although a peace is seldom obnoxious and unacceptable to the public, yet its necessity or propriety may not always be apparent, and a public disclosure of the urgent motives that really exist in favour of it, may be prejudicial. The people have, in such case, a stronger motive for relying on the wisdom and justice of the president and senate, than in the case of ordinary treaties. They are less likely than a larger body to be influenced by partial views or occasional inflammation, and the very circumstance of the smallness of their numbers increase their responsibility to public opinion.

The Founders' Constitution
Volume 3, Article 1, Section 8, Clause 11, Document 17
The University of Chicago Press

Rawle, William. A View of the Constitution of the United States of America. 2d ed. Philadelphia, 1829. Reprint. New York: Da Capo Press, 1970.

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