Arguments in Favor of Congressional War Powers

The argument for Congressional War Powers (Congressionalists):

Nothing in the Constitution expressly empowers the president to start an offensive war. The framers explicitly gave the power “to declare war; grant letters of Marque and Reprisal, and make Rules concerning Captures on land and Water” (Article I, Section 8).

The latter clauses refer to lower-level hostilities that do not account for an all out war. The Letters of Marque and Reprisal clause–marque being the French equivalent of reprisal–can be best understood as a single phrase. At the time of the Founding, the people, through Congress, authorized holders of letters of marque and reprisal to engage in hostile actions against enemies of the state. Essentially, only the people and the states through their representation can authorize any military adventure. Period.

In Federalist No. 69 Hamilton writes that the president’s war powers are inferior to that of the British king, “It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulation of fleets and armies; all which, by the constitution would appertain to the legislature.”

In the Madison’s Convention notes, him and Elbridge Gerry “moved to insert “make” war, leaving to the executive the power to REPEL sudden attacks.”

It doesn’t say anything about starting an offensive war.

Moreover, in his notes, Madison records Mr. Gerry’s rebuttal to Pierce Butler’s assertion that war making powers should be vested in the executive’s hands alone. Gerry states that he “never expected to hear in a republic a motion to empower the executive alone to declare war.”

George Mason was against “giving the power of war to the executive, because not safely to be trusted with it, or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war, but for facilitating peace. He preferred “declare” to “make.”

Admittedly, the notes on this debate are sparse to say the least.

Next will be the arguments of the Presidentialist camp. Also extremely interesting.


– Will Ricciardella



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Filed under Foreign Policy, Political Philosophy

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