Book Reviews

What's So Great About the Declare War Clause? Noah Feldman's Madison & War Powers: Part I

By Matthew Waxman
Wednesday, January 24, 2018, 7:00 AM

I have long believed two things about constitutional war powers, which my reading of Noah Feldman’s “The Three Lives of James Madison” largely confirmed. First, James Madison was brilliant and prescient about many things, but the strategy and politics of war were not among them. Second, modern constitutional critics of an imperial presidency place too much weight on the declare war clause—and especially Madison’s statements about it.

Madison, indeed, worried deeply about unchecked presidential war powers. But Feldman’s book shows that Madison did not emphasize the same risks and checks so often ascribed to him today, especially by congressionalists who invoke Madison’s statements about war-initiation.

This is the first of three essays about Feldman’s book and war powers. It addresses Madison’s views of those powers in theory. The next essays will discuss those views in practice and what they mean for contemporary debates about war powers.

Feldman’s Madisons

Let me start with a preliminary note about the book, which I really enjoyed. Discussions of constitutional war power issues make up only a very small part of the book, but they are important moments. I also interpret some of the relative silence about war powers as itself revealing.

Feldman divides the book into three “lives” of Madison: genius, partisan, and president. Those descriptors largely correspond to three periods of Madison’s tremendous constitutional influence. The first focuses on Madison as constitutional architect, in which he devoted his potent intellect to solving, through structural divisions and overlapping powers, a core dilemma: how to centralize certain powers needed for the new republic to survive and thrive, while at the same time preserving broad distribution of power, including among the states. The second describes Madison as a political partisan in Congress—one who originally feared the rise of “factions” but comes to lead one with Jefferson, “the Republicans,” against Alexander Hamilton and “the Federalists.” The third covers Madison as a foreign policy executive, including eight years as President Jefferson’s secretary of state and eight years as president. Much of that decade and a half is spent wrestling with how to protect U.S. interests against stronger foreign powers, ultimately including waging a Second Revolutionary War against Britain (the War of 1812) that Madison had tried unsuccessfully to avoid.

Feldman’s book traces several evolutions in Madison’s thinking, including his thinking about war. Overall it is a story of grand theory and idealism yielding some ground to experience and pragmatism. I came away from it unimpressed by Madison’s early thinking about war powers but respecting his willingness to revisit and even reverse some of his prior assumptions while also holding firm to certain key principles.

Madison and War Powers in Theory

Tellingly, the declare war clause doesn’t feature heavily in the book. It doesn’t really come up at all in Feldman’s story of Madison’s first “life” as constitutional inventor. That is because Madison expected other, more important structural checks to operate before war declaration even became an option. It’s Congress’s control of spending on military preparedness and the preservation of state militias that appear many times, that loom much larger in Madison’s thinking about checks, and that were nearly his own undoing as commander in chief.

Pretty much every student of the U.S. Constitution knows that the declare war clause (Article I, Section 8, Clause 11) grants Congress the power to declare war. Less remembered and certainly less discussed these days is that the militia clauses then provide that Congress shall have power to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” (Clause 15) and to “provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress” (Clause 16).

The militia clauses should be read in tandem with the Army and Navy clauses, which give Congress the powers to “raise and support Armies” (Clause 12) and to “provide and maintain a Navy” (Clause 13). The Army clause contains an important restriction—a restriction applicable to only one power—that “no Appropriation of Money to that Use shall be for a longer Term than two Years.”

Article II Section 2 later familiarly states that, in addition to holding “the Executive power,” the President “shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”

Though Part I of Feldman’s book hardly mentions the declare war clause—and with it, the broader issue of war initiation—I suspect this is not because Madison the constitutional architect thought it unimportant. Quite the contrary, he and many other drafters thought it so clearly necessary that it didn’t generate as much debate or require as much defense as some other provisions related to war and defense—even though it was quite a radical departure from the British system and predominant thinking. True, there was some disagreement (a small minority of delegates proposed vesting the power to declare war in the president or the Senate, and there is a famous moment when a proposal that Congress be given power to “make war” was changed to “declare” it). But Madison and most other constitutional architects who thought it much safer to place the war declaration power in Congress’s hands met with little resistance, and therefore didn’t need to devote much energy to defending that allocation or its precise boundaries. In fact, from the framing and ratification periods we have very little hard evidence of what Madison said about the declare war clause’s meaning, let alone what he really thought.

Far more than the declare war clause, Feldman’s account of Madison’s thinking and influence focuses on Congress’s other powers over military resources as well as the Militia Clauses. Madison and many fellow Republicans saw peacetime demobilization of military forces—much of them remaining in the form of local, part-time citizen-soldiers organized primarily at the state level—as the more significant check on war-making. Today we are used to thinking about congressional control over military purse-strings as, if anything, mostly a back-end check, or a tool that Congress might try to wield to terminate military adventures. Madison saw it as a front-end check, too, denying the president much actual military power without Congress’s considered support.

That is, rather than seeing the declare war clause as the key brake on aggressive or unnecessary presidential war-making, Madison saw it as one among layers of checks. At least as important, and probably more important, were structural checks on the very instrument of war-making: namely, an army.

Madison did not expect Congress to raise and support much of an army in peacetime. He and fellow Republicans expected state-level militias to provide much of the defense forces necessary to supplement a small national force. And militias were—in both practical and legal senses—necessarily defense forces: In accordance with ancient British tradition, the militia clauses restricted their national role to executing law, suppression insurrections, and repelling invasions. Madison never went as far as some Republicans who wanted the Constitution to forbid a peacetime standing army altogether (see his debate with fellow Virginian Patrick Henry at page 235 of Feldman’s book). But the Army clause contains a two-year appropriation rule to make sure that, even if an army was created and the president was provided by Congress—or assumed authority—to use it, funding for those troops would run out quickly if Congress did not replenish it.

Although Feldman doesn’t discuss this part of Madison’s Federalist 41, it is in that essay that Madison describes these interlocking checks. Madison starts by quickly dismissing any question of whether the national government must have the power to declare war—“No man will answer this question in the negative”—but he doesn’t bother here addressing which branch holds that power, because his primary concern here is the instruments of war. Madison’s main point is that the Constitution was designed to make a large standing army unnecessary and unlikely.

For starters, Madison argues in Federalist 41, “[t]he distance of the United States from the powerful nations of the world”—the Atlantic oceanic moat—would provide a first line of defense. Next, “[t]he Union itself which [the Constitution] cements and secures, destroys every pretext for a military establishment which could be dangerous. America, united with a handful of troops, or even without a single soldier, exhibits a more forbidding posture to foreign ambition than America disunited, with one hundred thousand veterans ready for combat.” This last point is a Madisonian assumption that Feldman points out throughout his book: A single, united republic would be such an economic powerhouse and trading partner that extensive national-level military institutions could remain small. “Next to the effectual establishment of the Union” itself as a check, Madison continues, “the best possible precaution against danger from standing armies, is a limitation of the term for which revenue may be appropriated to their support.” The Army clause was carefully designed so that no appropriations for it could last longer than any House of Representatives term.

I’ve wondered in the past how seriously to take these arguments in the Federalist: was this truly Madison’s thinking or political salesmanship? I find convincing the account in Richard H. Kohn’s Eagle and Sword: The Federalists and the Creation of the Military Establishments in America, 1783-1802 that most of the Framers, and especially those who experienced the Revolutionary War first-hand, regarded a national army as necessary and the militia system as no substitute (see Kohn’s chapter 5). But Feldman’s book suggests throughout that Madison’s own concern about standing military establishment and his faith in militias were actually quite strong and genuine—even if not to the same extent as more hardcore Republicans.

In sum, Madison’s thinking about war powers—perhaps better termed “defense powers”— reflected two basic policies. One was opposition to offensive or aggressive war. The other was aversion to a large standing army. These were closely related, because Madison, like other Republicans, saw standing armies as tools of aggressive war, and both wars and standing armies threatened balances and limitations of domestic governance. Madison and many Republicans were concerned about aggressive war and standing armies not just because they opposed costly, militarily hawkish foreign policy but because they feared resulting tyranny at home.

As Feldman puts it:

To Madison, the message for Americans was to avoid war, which not only destroyed lives, wasted treasure, and corrupted morals, but destroyed “the equilibrium of the departments of power.” This was a typically Madisonian argument: War was hell—especially because it broke down the separation of powers. Even the mere threat of war could produce the same results: “An alarm is proclaimed—Troops are raised—Taxes are imposed—officers military and civil are created.” Then, even after “the danger is repelled or disappears,” the standing army, the taxes, and the government offices ripe for political corruption would all persist. [423]

With these internal dangers of war—and even preparedness for war—in mind, Madison envisioned a set of overlapping checks that operated prior to any war declaration process (and afterwards if necessary).

This vision sets up one of the great Madison-Hamilton divides over grand strategy and the Constitution that continues throughout American history. For Madison, some limited, standing military establishment was necessary, but too much of it would result in unwarranted militarism. His rival Alexander Hamilton feared too little of it would undermine deterrence and invite aggression by others.

The next essay in this three-part series will look at how Madison’s theory stands up to reality in the first four presidential administrations.