Hamilton Makes a Point About Declaring War

The New York Sun ^ | 9/3/2002 | Seth Lipsky

[Utah Girl]

The Incomparable Founder Reminds Us, Writes Seth Lipsky, That War Can Come Without a Declaration

If you go back and read about the crafting of the United States Constitution - something I felt the urge to do over the weekend, as the debate was roiling on whether or when President Bush should go back to the Congress before going to Iraq - you find that the founders of America gave a lot of thought about where to delegate the power to declare war. Back in England and Europe, after all, it had resided with the King.

"The Founders' Constitution," a compendium of documents illuminating America's basic law that was assembled by Professors Kurland and Lerner of the University of Chicago, includes one of William Blackstone's commentaries from 1765. He observes that the King has "the sole prerogative of making war and peace." "It is held," he says, "by all the writers on the law of nature and nations, that the right of making war, which by nature subsisted in every individual, is given up by all private persons that enter into society, and is vested in the sovereign power."

In America, the writers of the original Articles of Confederation gave the power to the united states in Congress and specified that the states in Congress would have the "sole and exclusive right and power of determining on peace and war." They excepted only the power of making treaties and alliances and sending and receiving ambassadors. But like a lot of elements of the Articles of Confederation, the war-making issue wasn't thought through, and it generated a lively discussion at the Federal Convention at Philadelphia.

James Madison's records, for example, quote Edmund Randolph as enumerating the defects. The Confederation produced, he said, no security against foreign invasion. Congress was "not permitted to prevent a war nor to support it by its own authority." Madison reported that Charles Pinkney opposed the vesting of this power in the Legislature. "Its proceedings were too slow," Madison quoted him as saying. The House of Representatives was too numerous. He thought more of the Senate.

Pierce Butler, however, thought the Senate would have the same problems as the House. He wanted the power vested in the president, who, as Madison sketched the argument, "will have all the requisite qualities, and will not make war but when the Nation will support it." It was Madison and Elbridge Gerry who proposed to insert the word "declare" in place of the word "make," a shrewd distinction that annoyed Roger Sherman, who felt it narrowed the powers of Congress too much.

Oliver Elseworth argued that things should be arranged so that it was easier to get out of war than into it. Mason was against giving the power of war to the Executive, because the president could not be trusted with it, and was also against giving the war power to the Senate, because it was not so constructed as to be entitled to it. He was for "clogging rather than facilitating war," as Madison phrased it. He was for facilitating peace. Madison's suggestion to use the word "declare" instead of "make" was approved. Rufus King remarked that the word "make" might be understood to "conduct," which was an executive function.

Pinkney tried to get the convention to strike out the whole war power clause absent a call to the states. Presumably, this meant the state legislatures would have to declare war, much like they now have to ratify a change in the Constitution. This idea failed. Butler moved to give the legislature the "power of peace," since they were going to have the power of war. Gerry remarked that the senate was more liable to be corrupted by an enemy than the whole legislature.

So the founders gave the power of declaration to the Congress. But they didn't entirely resolve the matter, as the incomparable Alexander Hamilton underscored some years later, at the time of the Barbary pirates. He was furious at Jefferson for suggesting that "though Tripoli had declared war in form against the United States, and had enforced it by actual hostility, yet that there was not power, for want of the sanction of Congress, to capture and detain her cruisers with their crews."

Hamilton went on make the essential point that when one nation attacks another, it is automatic that a state of war comes into being. "This state between two nations," as he put it, "is completely produced by the act of one - it requires no concurrent act of the other. It is impossible to conceive the idea, that one nation can be in full war with another, and this other not in the same state with respect to its adversary."

Hamilton also went on to debunk, at least to a degree, what he called "the distinction between offensive and defensive war." The distinction, he said, "is only material to discriminate the aggressing nation from that which defends itself against attack. The war is offensive on the part of the state which makes it; on the opposite side it is defensive; but the rights of both, as to the measure of hostility, are equal."

This is something to think about in the wake of the attack on the United States that took place a year ago - and, for that matter, in the wake of the wider war that has been waged, through the proxy of terrorism, by Middle Eastern nations hostile to America, Israel, and the West. No doubt Congress has the power to declare war. It is where the Founders came out and the logic of the decision is clear in the record. But the fact remains that the founders understood that there were times when America could find itself in a war whether it declared the war or not.

[Ernest_at_the_Beach]

Very interesting!

[Texasforever]

It was just that opinion that held sway when Congress decided a declaration of war against the Barbary Pirates was not required. They instead issued a "Joint Resolution" authorizing Jefferson to assume his CIC war time powers. Sound familiar?

[meenie]

The thing that makes so much difference in the terrorism war is the inability to determine who is behind the perpetrators. With these type of small scale organizations, so many people can be giving financial support in the background. The Saudis and Sadaam have been openly involved in financing terrorism through the Palestinians. We buy oil from the Saudis.

Then does the US use the Saudis as a middle man to finance Al Qaeda and the Palestinians? A trail of the money would probably find that some of our money does indeed find its way to the terrorists. How do you solve this problem? A third party going through an investigation and following the money can come up with several conclusions.

[Political Junkie Too]

Gerry remarked that the senate was more liable to be corrupted by an enemy than the whole legislature.

Isn't THAT the truth!?!

-PJ