Making Article I, Section 8, Clause 11 Great Again

[The Congress shall have Power…] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water…
– The Constitution of the United States of America (Article I, Section 8, Clause 11)


Some Members of Congress Just Decided to Follow the Constitution

On Friday, April 28th, 2017, some members of Congress did something that they are not exactly known for doing nowadays – they asked that the Constitution be followed and that their status as a co-equal branch of government be recognized. And they did so in bipartisan fashion in a statement directed to Speaker of the House Paul Ryan. They were specifically asserting the constitutional role given to Congress in deciding whether & how America is to go to war. Although the principles outlined in the letter can & should likely be applied broadly to threats posed by North Korea & Iran as well, two issues in particular were addressed in the letter: the civil war in Syria and the ongoing battle against the Islamic State. In regards to Syria, the representatives stated unequivocally that constitutionally-speaking the President cannot strike at Syria again without congressional approval. And in regards to the Islamic State, the representatives stated that it’s time that we stop relying only on the 2001 Authorization for the Use of Military Force (AUMF) passed over a decade & a half ago in the wake of the 9/11 attacks, and instead craft a new authorization that singles out the threat now posed by the Islamic State’s global network as well. The full letter is below:


Dear Speaker Ryan:

We write to you with a sense of urgency and ask that the U.S. House of Representatives immediately begin a serious debate on the use of military force (AUMF) against the Islamic State and express that the President must seek approval from Congress before taking any further military action against the Syrian regime of Bashar al-Assad. As you know, we represent a diverse group of political views, but on this matter we are united. We believe that Congress has an important role to play, and based on current events, such a debate should occur as soon as possible.

For too long, the United States has conducted military operations against the Islamic State under the justification of the outdated 2001 Authorization for the Use of Military Force (AUMF). The U.S. has steadily escalated its role and military presence against the Islamic State forces in Syria and Iraq, including additional deployments over the past two months. It is past time for the House to debate and vote on an AUMF that defines the purpose, nature and limits of U.S. military engagement against the Islamic State.

Furthermore, the U.S. has now carried out its first direct military action against the Syrian regime since the country’s civil war began six years ago, again without any authorization by Congress. We believe the President must present a strategy and seek the approval of Congress before any additional military action is taken against the Syrian regime.

We know that you share our respect for the prerogatives, rights and obligations of the Congress as defined under Article I of the Constitution. Congress cannot continue to remain silent and ignore its responsibilities under the Constitution. Engaging in these debates is the minimum we owe the American people and our brave men and women in uniform.

[Signed by 46 Members of the House of Representatives]

Syria & ISIS

The strategic case that is made by these representatives is strong. The situation in Syria has become a six-year proxy war between outside powers: Syrian dictator Bashar al-Assad is backed by the Shiite theocracy in Iran, by Hezbollah, and by Putin’s Russia; various rebel forces are backed by a wide range of actors like the Gulf States & Jordan; a variety of jihadist groups hold significant territory, including al-Qaeda and its offshoots al-Nusra & ISIS; the Kurds battle ISIS while establishing semi-autonomous regions for themselves; and Turkey nominally battles ISIS while also doing everything it can to thwart Kurdish desires for independence. If the United States is to get involved further it should not be done on a whim, but based on a clear strategy backed by both the President & Congress. Likewise the threat posed by the Islamic State globally is significant – despite losing territory in Iraq & Syria, they are actually expanding their influence in places like Libya & Afghanistan while carrying out brutal attacks all across the West. The United States needs to establish a red line against ISIS by declaring war against them. ISIS engages in global jihad, in bombings & beheadings, in crucifixion, in attempted genocide, & in slavery – and just like the use of chemical weapons is a red line, each of those terrible acts should be a red line too. The Islamic State’s crimes are worthy of a declaration of war. And declaring war through Congress his is not only the smart strategic play, but – as leaders like Congressman Justin Amash, Senator Mike Lee, Senator Rand Paul, and others have made clear – it is also likely a constitutional obligation. At least the Founding Fathers thought so.

The Founding Fathers & War Powers

James Madison was by far & away the most influential framer of the Constitution. As delegates gathered in 1787 for a Constitutional Convention to discuss replacing the Articles of Confederation with a new Constitution, James Madison took notes on the wide-ranging debates that took place. One of the more interesting debates that was held concerned war powers and their proper placement under either executive or legislative purview. James Madison’s notes at the convention outlined the discussion in detail:


Mr. Madison and Mr Gerry moved to insert “declare,” striking out “make” war; leaving to the Executive the power to repel sudden attacks.
Mr Sharman thought it stood very well. The Executive shd. be able to repel and not to commence war. “Make” better than “declare” the latter narrowing the power too much.
Mr Gerry never expected to hear in a republic a motion to empower the Executive alone to declare war.
Mr. Elseworth. there is a material difference between the cases of making war, and making peace. It shd. be more easy to get out of war, than into it. War also is a simple and overt declaration. peace attended with intricate & secret negotiations.
Mr. Mason was agst 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”.
On the Motion to insert declare – in place of Make, it was agreed to.
[On the remark by Mr. King that “make” war might be understood to “conduct” it which was an Executive function, Mr. Elseworth gave up his objection and the vote of Cont was changed to – ay.]


In this brief exchange between a number of the Founders, a few of our modern debates seem to be resolved in just a few short lines – it is decided that it is up to the legislative branch to begin a war and that it is up to the executive branch to carry out a war or to defend against invasion, with these war powers being divided between the two branches with the specific intention of making it harder to go to war. The idea that the President might be able to go to war on his own is roundly rejected as un-republican and the role of the Congress in making these decisions was made clear. This was the position held broadly by all of the Founding Fathers, as the following selections from their writings clearly show.


Alexander Hamilton Federalist No. 69 in 1788:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. 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 REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the Legislature.


Alexander HamiltonPersonal Papers in 1801:

“That instrument has only provided affirmatively, that, ‘The Congress shall have power to declare War;’ the plain meaning of which is that, it is the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war; whether from calculations of policy or from provocations or injuries received: in other words, it belongs to Congress only, to go to War.”


Chief Justice John MarshallTalbot vs. Seeman in 1801:
“The whole powers of war being by the Constitution of the United States vested in Congress, the acts of that body can alone be resorted to as our guides in this inquiry.”


George Washington Letter to William Moultrie in 1793:

“The Constitution vests the power of declaring War with Congress, therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorised such a measure.”


Thomas Jefferson First Annual Message in 1801:

“Unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense, the vessel, being disabled from committing further hostilities, was liberated with its crew. The Legislature will doubtless consider whether, by authorizing measures of offense also, they will place our force on an equal footing with that of its adversaries. I communicate all material information on this subject, that in the exercise of this important function confided by the Constitution to the Legislature exclusively their judgment may form itself on a knowledge and consideration of every circumstances of weight.”


James Madison Letter to Thomas Jefferson in 1798:

“The Constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war & most prone to it. It has accordingly, with studied care, vested the question of war in the Legislature.”


James MadisonLetters from the Pacificus-Helvidius Debates in 1793-1794:

“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 …

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 …

The power of the legislature to declare war, and judge of the causes for declaring it, is one of the most express and explicit parts of the constitution. To endeavour to abridge or affect it by strained inferences, and by hypothetical or singular occurrences, naturally warns the reader of some lurking fallacy …

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 to heterogeneous powers, the trust and the temptation would be too great for any one man; not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasures are to be unlocked; and it is the executive hand which is to dispense them. In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered; and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace …

Hence it has grown into an axiom that the executive is the department of power most distinguished by its propensity to war: hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence.”

So, Let’s Follow the Constitution:
Declare War on the Islamic State & Don’t Attack Syria Again without Congressional Approval

This basic concept – that the Constitution makes clear that it is up to the Congress to decide if a war was to be conducted or not and that it is then up to the President to conduct said war – was never in dispute during the time of the Constitution’s ratification process. The Founding Fathers could not have been more clear. Aside from repelling invasions & responding to direct attacks, the President was reliant upon Congress to go to war. This was the understanding of the ratifiers of the Constitution and it should remain our working understanding today. So the bipartisan group of representatives calling for direct congressional authorization should be praised for assertion of their Article One constitutional powers, and Speaker Ryan & President Trump should take their request seriously. After all, it was (then-candidate & now-President) Trump himself who made the case for declaring war on ISIS. A nation whose elected officials are actually united behind a smart policy to deal with the disaster in Syria and further united by a new commitment to defeating the Islamic State would be a nation that is safer from terrorism and more loyal to our foundational & constitutional principles. The security of our nation and a fealty to the Constitution are not mutually exclusive – and it’s time our leaders acknowledged that.

About the author

Jerry Dunleavy

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