Book Reviews

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

By Matthew Waxman
Thursday, January 25, 2018, 7:00 AM

The first essay in this three-part series about Noah Feldman’s “The Three Lives of James Madison” discussed how Madison’s theory of war powers was focused heavily on internal dangers to liberty and republican governance from war or standing armies. The allocation of the declare war power to Congress played only a small role in his theory. More important were structural checks on national-level military establishments, especially constitutional provisions that preserved state militias as the primary source of military manpower and that required Congress to fund—and then keep funding—a national army. Without an army, the president couldn’t fight a war regardless of where the declare war power lay.

Drawing on Feldman’s history, this essay shows how despite some important continuities, many of parts of Madison’s theory failed in practice during the early republic, including his own presidency.

Madison and War Powers in Practice

Even in an 18th-century world in which the international legal distinction between war and peace was sharper than it is today, Madison seemed caught off guard during the Washington and Adams administrations by the degree to which presidents could make major decisions for the nation about war absent any declaration by Congress. Upon his own rise to the presidency, the state militia system in which he placed much faith betrayed him.

Neutrality Controversy

The first major war episode that Feldman details is the 1793 Neutrality Controversy, in which President Washington unilaterally announced a policy of impartiality in the European war, rejecting the view of Jefferson and substantial public opinion that the United States should align with France. To Washington and his chief adviser Hamilton, this exercise of presidential executive and diplomatic powers was, in effect, declaring “not war”—but to opponents like Madison it was a usurpation of power over war/peace decisions, nonetheless.

This was Madison’s first big practical lesson that the movement from baseline peace to exceptional war can take many non-linear paths. The express provisions of the Constitution—in particular the Declare War Clause—would cover only some of them.

In my view Hamilton bested Madison in their dueling constitutional commentary during this incident under the pseudonyms Pacificus and Helvidius. Feldman also points out, however, that the embryonic executive branch was already nimble enough to exercise foreign policy leadership, and to fill in constitutional gaps through its actions. Arguments were important, but deeds were establishing precedents for expanded presidential diplomacy regarding war and peace. This was especially true during the so-called “Genêt affair,” when the French minister to the United States tried to undermine American neutrality by commissioning privateers and threatening to take his case directly to the public. “The theoretical nature of Madison’s constitutional critique of Pacificus was particularly ill-timed,” writes Feldman. “As Madison was ruminating about obscure details of the separation of powers, Hamilton was turning the Genêt affair into concrete political gain.” (Page 381).

Quasi-War With France

During the first Adams administration, the United States and France waged an undeclared military conflict mostly at sea (1798-1800). French attacks on American shipping, especially in the West Indies, combined with other factors leading to armed hostilities. Congress provided the executive branch with naval and other military resources and authorized, in an escalating series of legislative acts, more and more forceful measures.

Note that this was primarily a naval conflict, which itself posed some challenges for Madison’s war powers ideas (which were mostly about armies). President Adams had to convince Congress to continue funding a Navy, and he was cautious to get specific authorization for using it. But that was probably an easier political lift than supporting ground hostilities, because armies were generally seen as a greater risk to liberty (a feature that, besides the need for longer-term capital investment, is probably one reason why the Navy Clause does not contain the Army’s two-year limitation).

During that episode, Madison penned a letter to Jefferson in which he famously wrote his strongest statement about the declare war clause:

The Constitution supposes what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the legislature. (Page 424, citing a 1798 letter to Jefferson).

In some ways it is no surprise that Madison emphasized Congress’s war power here: Having realized what presidents could do without formally declaring war, he emphasized more than before that Congress should be in charge.

Modern-day lawyers who oppose unilateral resort to armed force by the president often cite this statement about the war declaration power in support of their views. But Feldman’s book places it in context. The legislature was, in fact, already quite involved in decision-making, having fulfilled requests for armaments and authorized limited military actions. Moreover, Adams was actually struggling to avoid open conflict with France, not baiting the nation into one.

Madison seems blinded to these factors because he wanted war to be a binary condition—we were either at (declared) war or not. He thought that approach would make war easier to control. “Madison reviled the idea of undeclared war,” explains Feldman (Page 414). That’s why Madison says the framers “vested the question of war in the legislature” (my emphasis). It is also why he goes on the say that “the doctrines lately advanced,” by which he means congressional authorization of limited military actions without declaring war, “strike at the root of all these provisions, and will deposit the peace of the country in that department which the Constitution distrusts as most ready without cause to renounce it.”

But the Constitution needed to better fit the realities and strategy of conflict, not the other way around. And those realities included that interstate conflict entails a set of moves and countermoves, threats and counter-threats, only sometimes resulting in full-scale conflict for which a legal declaration would be advantageous.

Madison’s First Term as President

Madison served as secretary of state throughout the Jefferson administration, during which the United States was pushed around by Britain on many fronts, including in maritime commerce. Feldman describes in detail how Madison and Jefferson sought and failed to negotiate British concessions through economic coercion, and Madison inherits the challenge when elected president.

Notwithstanding these and other security challenges, in his 1809 inaugural address, Madison clings to his republican concerns about centralized military establishment, warning that a standing army was a danger to liberty and must therefore be kept “within the requisite limits” while “remembering that an armed and trained militia is the firmest bulwark of republics” (504).

As Feldman notes, of course, “[w]ar was not a viable option for a republic without a standing army” (504). That may not have seemed so problematic to Madison, who had no intention of going to war. But coercive diplomacy or deterrence backed up by the threat of force were not possible without a standing army, either. Nor was an aggressive foreign economic policy that risked escalating to or provoking war.

So by 1811 Madison had learned a key strategic lesson that cuts at his republican theory of war powers: that a standing military may be necessary for strategies—like deterrence, or threatening an escalation of economic measures—that could prevent war.  “With every avenue of economic sanctions apparently exhausted, all that remained to alter British policy was war.” Feldman continues, “Ideally, Madison would not actually have to use force, just threaten it. To threaten credibly, however, Madison would need to motivate Congress to create a functional military” (529)—something he had stood against.

War of 1812

Having exhausted every form of economic coercion he could muster, Madison turned in 1812 to Congress for a war declaration, which passed narrowly in both houses. Although United States ultimately emerges victorious, it suffered major setbacks throughout the war, including the burning of Washington, D.C. Feldman notes that “Congress had refused to give Madison the troops he needed. Most of the public had refused any sacrifice and avoided military service. The militia had frequently fled the field. The regular army had performed doubtfully at best” (606-07).

The biggest military blunders involved reliance on state militias, which Madison’s republican theory of war powers placed at the center of national defense. His military strategy entailed invasion of Canada, but New York militiamen refused to cross the border, arguing that constitutionally they could not be sent abroad on offensive campaigns (recall that the militia clauses restrict the purposes for which Congress can call them forth: “to execute the Laws of the Union, suppress Insurrections and repel Invasions”). Those militias that were willing to cross the Canadian border fought poorly—as one might expect of forces designed for local defense. Madison “was beginning to recognize that the federal government might not be able to rely on militia as he expected” (552).

Eventually the United States repulsed British forces and scored enough victories to force a negotiated settlement. Feldman describes how, in an important concession to his experience over prior assumptions, Madison acknowledged in a post-war speech to Congress that: “Experience has taught us” … that the “pacific dispositions of the American people” and “their political institutions” would not exempt the United States from the need to fight wars. “A certain degree of preparation” was “indispensable to avert disaster” and would also give “the best security for the continuance of peace” (607).

Madison’s proposals, ultimately adopted by Congress, called for a modest standing army (on the order of ten thousand troops) and a small standing Navy. “The recommendations were altogether logical in the light of the experience of the previous decade” (607)—not only the military setbacks during the war but the efforts to avoid war to begin with.

This concession to standing national forces struck a balance in the decades that followed between defense needs (and even some territorial expansions through force) and concerns about domestic centralization of power. But it also laid the seeds for greater and greater presidential discretion in foreign policy as those standing forces grew larger.

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Reality was tough on Madison’s theory of war powers. Madison never proposed a wholesale departure from reliance on structural mechanisms to ensure that defensive measures would not encroach on American liberties, but he realized the limits of his assumption that opening up trade would prevent war. He came to accept that significant adjustments in how those structural checks operated were inevitable. The executive branch was filling gaps in clear constitutional allocations of war-related powers. Clear delineations between war and peace were poorly matched with the realities of conflict. Heavy reliance on state militias had to give way to standing national forces.

The next and final essay will address what these early experiences and tests of Madisonian theory should tell us today about constitutional war powers debates.