War Powers: The True History of James Madison, the Constitution and the War of 1812
By: Mike Maharrey
In the early years of the United States under the Constitution, James Madison made one of the most compelling constitutional arguments against unilateral presidential war powers. Through their actions, the first three presidential administrations of Washington, Adams, and Jefferson notably upheld this position. And once in office himself, Madison unsurprisingly followed the same approach.
Their statements and, more importantly, their actions further undercut the modern assertion that while the Constitution delegates to Congress the power to “declare war,” the president also has expansive authority to make unilateral decisions about war and peace.
CONSTITUTIONAL STRUCTURE
The Constitution expressly delegates the power to “declare war” to Congress and not the executive branch.
In the fourth of his Letters of Helvidius, Madison called this the wisest part of the Constitution.
“In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture of heterogeneous powers: the trust and the temptation would be too great for any one man”
Madison astutely pointed out that war is “the true nurse of executive aggrandizement.”
He drove this point home in his Political Observations, writing, “The separation of the power of declaring war, from that of conducting it, is wisely contrived, to exclude the danger of its being declared for the sake of its being conducted.”
In Helvidius I, Madison emphasized that from a constitutional standpoint, all legislative authority is vested in Congress, and this logically included the power to change the state of things from peace to war.
“In the general distribution of powers, we find that of declaring war expressly vested in the congress, where every other legislative power is declared to be vested.”
It follows that “the constitutional idea of this power would seem then clearly to be, that it is of a legislative and not an executive nature.”
Madison argued that there is no presidential authority to declare war because it is fundamentally a legislative function. The president’s role is to “execute” laws, and as he explained, “A declaration that there shall be war, is not an execution of laws: it does not suppose pre-existing laws to be executed: it is not, in any respect, an act merely executive.”
Madison further noted that a declaration of war “has the effect of repealing all the laws operating in a state of peace, so far as they are inconsistent with a state of war.”
Madison summed it up in Helvidius II by writing, “The declaring of war is expressly made a legislative function.” [Emphasis added.]
“Whenever, then, a question occurs, whether war shall be declared, or whether public stipulations require it, the question necessarily belongs to the department to which those functions belong–and no other department can be in the execution of its proper functions, if it should undertake to decide such a question.”
In other words, when the president decides any question of war and peace, except for authorizing purely defensive actions, he acts outside his constitutional authority. The president only has the power to act after Congress provides explicit instructions in the form of a formal declaration of war, or authorization to take some kind of offensive military action. Once Congress acts, the president is limited to its instructions, whether it grants an open-ended authorization to wage war, or a more limited offensive response.
In Helvidius III, Madison called this principle “one of the most express and explicit parts of the Constitution,” and he insisted, “To endeavor to abridge or affect it by strained inferences, and by hypothetical or singular occurrences, naturally warns the reader of some lurking fallacy.”
He emphatically declared in Helvidius IV, “Every just view that can be taken of this subject, admonishes the public of the necessity of a rigid adherence to the simple, the received, and the fundamental doctrine of the Constitution.” [Emphasis added]
TO DECLARE WAR
At the time the Constitution was ratified, the power to “declare” war was widely understood to mean changing the state of things from peace to war.
Today, most people think only an all-out war against another country counts as “war” under the Constitution. In their view, smaller-scale military operations fall short of the war threshold and therefore don’t need congressional authorization.
But as Constitutional scholar Rob Natelson has noted, the founders didn’t make this distinction.
“Founding-Era dictionaries and other sources, both legal and lay, tell us that when the Constitution was approved, ‘war’ consisted of any hostilities initiated by a sovereign over opposition. A very typical dictionary definition was, “the exercise of violence under sovereign command against such as oppose.” (Barlow, 1772-73). [Emphasis added]
When placed within the definition, all offensive U.S. military actions qualify as “violence under sovereign command.” Furthermore, military operations, whether for strategic, political, or humanitarian purposes, are always “over opposition.”
It’s also important to note a country can change the state of things from peace to war with a formal declaration, but it can also happen with the execution of military actions, however limited.
The president doesn’t have the constitutional authority to do either.
Thomas Jefferson summed it up succinctly writing, “Congress alone is constitutionally invested with the power of changing our condition from peace to war.”
Many people today argue that if another country attacks the United States, its action changes the state of things from peace to war, and therefore, the president can then act without congressional approval. But as evidenced by their actions, that’s not how the Washington, Jefferson, Adams, or Madison administrations understood it.
For instance, Thomas Jefferson consistently deferred to Congress before taking offensive action against the Barbary pirates despite repeated attacks on American shipping and even an official declaration of war by the Pasha of Tripoli.
As Jefferson was considering how to respond, he convened his cabinet to discuss available options under the Constitution. All of the cabinet members agreed that ships should be sent out – and if the Pasha of Tripoli declared war on the U.S., they could still use only defensive measures without further authorization from Congress.
Attorney General Levi Lincoln wrote, “Our men of war may repel an attack on individual vessels, but after the repulse, may not proceed to destroy the enemy’s vessels generally.”
There was even debate about how far “defensive” actions could continue.
At the time, Madison was serving as the Secretary of State, he took the most restrained view. In his notes, Jefferson wrote “Whether the captains may be authorized, if war exists, to search for & destroy the enemy’s vessels wherever they can find them?—all except mr L—agree they should; M[adison]. G. & S. think they may pursue into the harbours, but M. that they may not enter but in pursuit.” [Emphasis in original]
Even after Jefferson was informed that the Pasha of Tripoli had declared war against the United States, he still held the Constitutional line and insisted that he needed to go to Congress for permission to take offensive action because he was “unauthorized by the constitution – to go beyond the line of defense.”
Jefferson, Madison and the rest were following precedents set years before.
During the Quasi-War with France, Pres. Adams expressly stated that he believed the U.S. was at “war” with France, not just a mere “quasi” war or a limited military action, or a police action, or whatever Orwellian term somebody might come up with today.
And yet, like Jefferson, Adams consistently sought the approval of Congress before taking any offensive military actions. He also stayed within the parameters Congress established.
And while Congress never expressly said, “We are at war with France,” Adams saw it that way. In a letter to John Marshall in early 1800, he wrote, “Congress has already in my judgment, as well as in the opinion of the judges at Philadelphia, declared war within the meaning of the constitution against [France], under certain restrictions & limitations.” [Emphasis added]
George Washington set the precedent of executive restraint. Even after the Cherokee Nations declared war on the United States, Washington deferred to Congress and consistently refused to authorize offensive expeditions without approval. At one point, Congress even declined to give Washington the authorization he sought, and rather than acting anyway under a more modern view of unitary executive power, the president took no action.
In a letter to Gov. Henry Lee in Virginia, Washington let him know that he could not take any offensive actions – even when under attack.
“It gives me inexpressible pain to receive such frequent, and distressing accounts from the Western frontiers of this Union (occasioned by Indian hostilities)—more especially as our hands are tied to defensive measures.” [Emphasis added]
Washington held this line throughout the conflict with various tribes, deferring to Congress and taking no action beyond what it authorized.
Their actions underscore the fact that Washington, Adams, Jefferson, Madison (and many other founders) believed that such important decisions about war should be made by the representatives of the people and of the states – and not left to the whim of a single individual..
If left to his sole discretion, a president might not respond to aggression when the people want to, and vice versa. But in the Constitutional system, it’s simply not his call.. After all, ultimately government is merely the agent of the people of the several states
James Madison later found himself in the position to conduct war when he became president in 1809, and it didn’t take long for his principles to be put to the test.
MADISON’S EXECUTION OF WAR POWERS
Madison was president when Congress made a formal declaration of war for the first time.
Given the belligerence of the British, most modern scholars would assume Madison had every authority to respond with full-scale, offensive military action with or without such a declaration, but the “Father of the Constitution” disagreed, not only in word but in deed.
Tensions between Great Britain and the United States were already growing during the last years of Jefferson’s presidency. There were several factors involved.
British impressment of American sailors was an ongoing issue. Thousands of American sailors were forced into the service of the British Navy.
As its war with France raged, Britain also interfered with trade between the U.S. and France. This interference bled over into trade relationships with other European nations. The United States asserted this violated its rights as a neutral nation.
In 1807, the HMS Leopard attacked the USS Chesapeake off the coast of Virginia and boarded the vessel looking for Royal Navy Deserters. The attack sparked outrage in the states. Jefferson pushed the British government to settle the matter, but Congress backed away from armed conflict. The British showed no remorse and issued a proclamation affirming their right to impress American sailors.
This led Jefferson to initiate the Embargo of 1807, effectively prohibiting American ships from trading with foreign nations. It was intended to put pressure on both France and Britain.
The British also actively armed Native Americans resisting westward expansion in North America. Many Americans believed the British were intentionally inciting Native attacks on frontier settlements.
Finally, there were factions in the U.S. eager to expand U.S. territory into Canada. Henry Clay and John C. Calhoun were two prominent figures pushing for war.
After Madison took office, diplomatic efforts to resolve these issues broke down and put the U.S. on the path to war.
In a special message to Congress in 1812, Madison enumerated U.S. grievances against Britain. He asserted that impressments, blockades, and other aggressive measures amounted to a declaration of war against the United States.
Even though the British had made no official pronouncement of war against the U.S., much less issued a formal declaration, Madison believed their actions spoke louder than words.
Summarizing British aggressions, Madison wrote, “Such is the spectacle of injuries and indignities which have been heaped on our country, and such the crisis which its unexampled forbearance and conciliatory efforts have not been able to avert.”
He then concluded, “We behold, in fine, on the side of Great Britain, a state of war against the United States, and on the side of the United States a state of peace toward Great Britain.”
It’s important to note that Madison had taken no offensive military action, despite his assertion that Britain was already at war with the U.S. Instead, he insisted, “Whether the United States shall continue passive under these progressive usurpations and these accumulating wrongs, or, opposing force to force in defense of their national rights, shall commit a just cause into the hands of the Almighty Disposer of Events … is a solemn question which the Constitution wisely confides to the legislative department of the government.” [Emphasis added]
Madison emphatically placed the decision exclusively in the hands of Congress and made it clear he would abide by its decision.
“In recommending it to their early deliberations I am happy in the assurance that the decision will be worthy the enlightened and patriotic councils of a virtuous, a free, and a powerful nation.”
Legal scholar Saikrishna Prakash summed it up this way.
“Clearly, Madison believed that it was for Congress to decide whether to declare war against the English even in a situation where Great Britain was waging war (albeit a limited one) against the United States.”
Congress apparently agreed. It didn’t send Madison a memo saying, “No worries James, just do what you want,” because the British had already informally declared war. Instead, Congress passed the first formal declaration of war in U.S. history, as requested.
The declaration proclaimed, “That war be and the same is hereby declared to exist between the United Kingdom of Great Britain and Ireland and the dependencies thereof, and the United States of America and their territories.”
The act also outlined the scope of Madison’s authority, authorizing him to “use the whole land and naval force of the United States to carry the same into effect.”
As Prakash noted, “Such a declaration would have been wholly unnecessary had the informal British declaration of war been sufficient for the President to take America into a war.”
He went on to point out, “Clearly, Madison did not believe that because the aggressor nation was in a state of war it followed that the victim was in the same state. The victim had to decide whether to wage war in response.”
And under the Constitution, that’s for the Congress to decide.
As Madison put it in Helvidius I, “Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws.”
Madison emphatically spelled out this doctrine in Helvidius IV, writing, “The executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.” [Emphasis added]
MADISON’S OTHER WAR
The British weren’t the only aggressors Madison had to confront while in office.
Despite the best efforts of the U.S. under the Jefferson administration, conflicts with pirates in North Africa continued into the Madison administration.
In a 1795 treaty, the United States had agreed to pay tribute and provide military supplies to Algiers in exchange for the protection of American shipping.
In 1812, a new Dey came to power in Algiers. He rejected the American tribute negotiated in the treaty. Deeming it insufficient, the Dey declared war on the United States on July 25, 1812. Working with British diplomats, the Dey timed the declaration to coincide with the beginning of the War of 1812.
Within weeks, Algerian corsairs captured an American ship.
Occupied with the British, the U.S. didn’t initially respond to the Algerian declaration and subsequent aggression. After the Treaty of Ghent ended the war with the British in December 1814, Madison turned his attention to Algiers.
Even though Algiers had declared war on the U.S. two years earlier, Madison still felt constitutionally obligated to ask Congress for authorization to take offensive military action in response.
Madison took a similar approach as Jefferson had years earlier when he still asked Congress for permission to take offensive action against the Barbary states months after the Bey of Tripoli declared war on the U.S.
Madison went to Congress asserting that Algiers had committed “overt and direct warfare against the citizens of the United States,” and asked Congress to declare the “existence of a state of war between the United States and the Dey and Regency of Algiers.”
Congress responded, noting that Algiers had “commenced a predatory warfare against the United States,” it authorized the president to wage a limited naval war by equipping, manning, and employing “such of the armed vessels of the United States as may be judged requisite by the President of the United States for protecting effectually the commerce and seamen thereof on the Atlantic Ocean, the Mediterranean and adjoining seas.”
As he had during the War of 1812, Madison deferred to Congress even though from Algiers’ perspective there was already a state of war between her and the United States. Nevertheless, Madison believed that it was up to Congress to decide whether or not the U.S. would respond.
It’s important to emphasize again that Madison didn’t authorize any offensive operations against Algiers until he received authorization from Congress, despite the declaration of war against the United States being in existence for two years.
Madison’s words and actions underscore the original understanding of presidential war powers – that the executive has “no right, in any case, to decide the question” of war and peace.
It’s a far cry from the nearly unlimited blanket authority to wage war presidents claim today.
