The Founders’ Declaration of War: The Declare War Clause and the Constitutionality of Undeclared War

The Founders’ Declaration of War: The Declare

War Clause and the Constitutionality of

Undeclared War

REUBEN W. BLUM*

BSTRACT

The Constitution grants Congress the power to declare war. Although a plain

reading of the Declare War Clause suggests that Congress has the exclusive

power to initiate armed conﬂict, historical practice indicates otherwise. Congress

has only declared war ﬁve times in American history and every American armed

conﬂict since World War II was waged without a declaration of war. Opposition to

the Vietnam War and the 2003 Iraq War raised concerns about unconstitutional

wars.

This Note examines whether the Founders would have considered it constitu

tional for the President to

initiate military action absent a congressional declara-

tion of war. Analyzing the theoretical and political foundations of the declaration

of war reveals that the Founders believed war powers are shared between the ex-

ecutive and legislature. Yet, the geopolitical reality of the early United States

inﬂuenced how the President exercised war power in practice. The Quasi-War

with France set a precedent that the First Barbary War reinforced: the President

can initiate armed conﬂict without a formal congressional declaration of war if

force is used defensively, the conﬂict is limited, and Congress provides partial

authorization.

ABLE OF CONTENTS

I. INTRODUCTION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280

II. T

HE THEORY AND POLITICS BEHIND THE DECLARATION OF WAR . . 281

A. The British Backdrop .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281

B. The Articles of Confederation . . . . . . . . . . . . . . . . . . . . . . . . 284

C. The Constitutional Convention . . . . . . . . . . . . . . . . . . . . . . . 285

D. The Proclamation of Neutrality Debate . . . . . . . . . . . . . . . . . 287

III. P

RESIDENTIAL WAR POWERS IN PRACTICE . . . . . . . . . . . . . . . . . . . 293

* Reuben Blum is a third-year law student at The University of Texas School of Law. Before law

school, Reuben worked in the ﬁnancial services industry. Reuben holds a Master of Science from the

Georgetown University Walsh School of Foreign Service and a Bachelor of Arts from Columbia

279

A. The Quasi-War with France . . . . . . . . . . . . . . . . . . . . . . . . . 293

B. The Quasi-War Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296

C. Jefferson’s Barbary War . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300

IV. C

ONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303

I. I

NTRODUCTION

Every American armed conﬂict since World War II was waged without

Congress declaring war. Throughout the second half of the twentieth century,

presidential critics began to worry that each administration was growing more

comfortable with unilaterally initiating military operations. In that time, much of

the American public began to perceive the declaration of war as an anachronism.

Popular opposition to the Vietnam War from the late 1960s to the mid 1970s per

petuated the view that the President could arbitrarily mobilize the country’s

armed forces.

See Arthur Schlesinger, Jr., Congress and the Making of American Foreign Policy, FOREIGN AFFS.

(Oct. 1 1972), https://www.foreignaffairs.com/united-states/congress-and-making-american-foreign-

policy [https://perma.cc/4NGC-HA2U] (

“[Concerns about] foreign policy becom[ing] the property of

the executive [have] acquired special urgency . . . because of the Indochina War, with its aimless

persistence and savagery.”).

The public echoed those concerns after the 2003 invasion of Iraq,

during the U.S. Military’s protracted engagement in the Second Iraq War.

Critics of American involvement in conﬂicts such as Vietnam and Iraq accuse

the executive branch of waging “unconstitutional” wars.

According to that

theory, the President may not initiate armed conﬂict unless Congress formally

declares war because the U.S. Constitution gives only Congress the power to

declare war. This criticism is reasonable at ﬁrst glance. The Declare War Clause,

art. I, § 8, cl. 11, is one of the best known passages of the Constitution among the

general public. The text reads: “The Congress shall have Power . . . To declare

War, grant Letters of Marque and Reprisal, and make Rules concerning Captures

on Land and Water.”

Indeed, a plain reading of the text suggests that Congress has the exclusive

power to initiate armed conﬂict. However, historical practice ﬂies in the face of

that reading. Congress has only declared war ﬁve times throughout history: in the

War of 1812, the Mexican-American War in 1848, the Spanish-American War in

2. See S

ARAH BURNS, THE POLITICS OF WAR POWERS: THE THEORY AND HISTORY OF PRESIDENTIAL

UNILATERALISM 18 (2019) (“Presidents George W. Bush, Obama, and Trump asserted breathtaking

interpretations of what the executive can do unilaterally.”).

3. See John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of

War Powers, 84 C

ALIF. L. REV. 167, 171 (1996) (“Critics of the current war powers landscape accuse

Presidents from Harry Truman to George Bush of waging ‘unconstitutional’ wars.”).

4. U.S. C

ONST. art. I, § 8, cl. 11.

280 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 21:279

1898, World War I in 1914, and World War II in 1941.

An investigation into the

Founders reveals that the original understanding of the Declare War Clause is

more consistent with historical practice than with modern criticism.

This Note addresses the question of whether the Founders would have consid

ered it constitutional for the President to initiate military action without a declara-

tion of war. The paper is divided into two sections.

Part 1 traces the theoretical and political foundations of the declaration of war,

from the British model in the eighteenth-century, through the Articles of

Confederation and the Constitutional Convention, and to the period during the

Proclamation of Neutrality and Paciﬁcus-Helvidius debate.

Part 2 illustrates how the President’s ability to initiate armed conﬂict unfolded

practice in the Adams and Jefferson administrations. First, the section analyzes

the Quasi-War with France from 1798

–1800. This paper argues that the Quasi-

War set a political and legal precedent that gives the President the power to com

mence armed conﬂict absent a Congressional declaration of war under three con-

ditions: for limited wars, for defensive wars, and when Congress provides some

degree of authorization short of a declaration of war. The Supreme Court con-

ﬁrmed this in three cases arising out of the Quasi-War: Bas v. Tingy, Little v.

Barreme, and Talbot v. Seeman.

Second, the section analyzes the First Barbary

War during Thomas Jefferson’s presidency, in which Jefferson largely adhered to

the Quasi-War precedent.

The conclusion proposes an answer to the question guiding this inquiry and

imagines how the Founders would have thought about the constitutionality of the

Vietnam War and the Second Iraq War. The prevailing consensus among the

Founders was that the President could initiate military action without a declara

tion of war under the conditions that the Quasi-War established and the First

Barbary War reinforced.

II. T

HE THEORY AND POLITICS BEHIND THE DECLARATION OF WAR

A. The British Backdrop

First, it is useful to understand how the eighteenth-century British government

treated war powers to understand the context in which the American Founders

designed and implemented the power to declare war in the U.S. Constitution. The

king had the exclusive power to declare and wage war in eighteenth-century

Britain. This power inﬂuenced the Founders in three ways. First, the Founders

understood the political theory supporting the British system: under the British

social contract, the people surrendered their individual capability to wage war to

the king as their sovereign. Consequently, this social contract restricted the

British subjects’ liberty regarding matters of war. Second, the fact that war

5. Yoo, supra note 3, at 177.

6. Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800); Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801); Little v.

Barreme, 6 U.S. (2 Cranch) 170 (1804).

2023] THE FOUNDERS’ DECLARATION OF WAR 281

powers were a royal prerogative meant that the power to declare war was an exec-

utive, rather than parliamentary function, in Great Britain. Therefore, by shifting

the power to declare war to Congress in the United States, the Founders needed to

determine whether they considered war powers an inherently legislative function

or merely an executive function that the Constitution granted to Congress as an

exception. Third, the Founders recognized that a monarch could easily abuse the

power to make war and sought to mitigate the ability of the American President

to exploit his authority as Commander in Chief.

The consensus among eighteenth-century political theorists was that war

powers properly belonged to the king as the agent of the people.

According to

John Locke, men voluntarily give up their absolute, but unsecure, freedom in the

state of nature and unite in a Commonwealth for mutual protection and preserva-

tion of property.

Once the Commonwealth is formed, the whole community

operates as “one Body in the State of Nature, in respect of all other States or

Persons out of its Community.”

In other words, the people are subsumed into the

state internally, but the state still operates in an anarchic international system

externally. Thus, Locke further explains that the king had the power to conduct

foreign relations. Locke called the foreign relations powers “federative” powers,

which “contain[] the Power of War and Peace, Leagues and Alliances, and all the

Transactions, with all Persons and Communities without the Commonwealth.”

In short, the king has absolute power to act on behalf of the people within the

international system. Locke’s theory of government is also consistent with

Blackstone’s analysis of the king’s constitutional powers.

In his Commentaries on the Laws of England, Blackstone stated that the king

“has the sole prerogative of making war and peace.”

In Blackstone’s view, this

power was based in natural rights that the people granted to the king:

“[T]he right of making war, which by nature subsisted in every individual, is

given up by all private persons that enter society, and is vested in the sovereign

power: and this right is given up not only by individuals, but even by the intire

[sic] body of people, that are under the dominion of a sovereign.”

In other words, although every individual has the right to make war in a state

of nature, individuals must give up that right to the king as a precondition for

entering society. Locke described how the people relinquish their freedom in

7. See 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, 245 (University of

Chicago Press ed., 1979) (1765) (explaining that the King served as the “delegate or representative of

his people.”).

8. J

OHN LOCKE, TWO TREATISES OF GOVERNMENT 411 (Peter Laslett ed., Mentor Books 1963)

(1689).

9. Id.

10. Id. § 146.

11. B

LACKSTONE, supra note 7, at 249–51.

12. Id.

282 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 21:279

exchange for the king’s protection and Blackstone speciﬁed that this included the

freedom to decide whether or not to engage in war at all.

Furthermore, Blackstone believed that the declaration of war was necessary

because

citizens forgo the right to make war without the sovereign’s authoriza

tion.

Private citizens who use violence without authorization are considered

robbers or pirates.

In contrast, a declaration of war functions to distinguish mili-

tary hostilities from private, violent crime. Here, Blackstone draws on the seven-

teenth-century Dutch writer Hugo Grotius, known as the founder of modern

international law,

to establish how the declaration of war ﬁt within the prevail-

ing norms of international law: “[A]ccording to the law of nations, a denunciation

of war ought always to precede the actual commencement of hostilities . . . that it

may be certainly clear that the war is not undertaken by private persons, but by

the will of the whole community.”

Blackstone’s reference to Grotius has two important implications. One,

Blackstone’s citation of international law seems to indicate that the concept of

declaring war was important to the practice of warfare at the time and somewhat

limited the king’s power. Although the king possessed the sole power to initiate

armed conﬂict, the phrase “ought always to precede” suggests that under interna

tional law, the king was obligated to issue a declaration of war as a precondition

to the lawful exercise of his war power. Two, the declaration channeled the will

of the people. Since the declaration made clear that war invokes the will of the

whole community

, it functioned as a way for the king to implement the natural

right to make war that the people sacriﬁced to him.

Taken together, Blackstone’s and Locke’s views of British war powers help

illuminate the political theory that inﬂuenced how the Founders allocated war

powers in the Constitution. On a practical level, both Locke and Blackstone agree

that the king had broad authority over foreign relations, including the exclusive

power to declare and wage war. On a theoretical level, both authors also admit

that the king’s war powers derived from natural rights the people sacriﬁced to the

sovereign. The Founders were keenly aware of both points. For example, in his

Letters of Helvidius, James Madison criticizes Locke’s view that the king should

have full control of foreign affairs.

Madison suggests that Locke would have

changed his opinion had he lived through the events exposing the king’s avarice

leading up to the American Revolution.

However, the Founders didn’t uniformly share Madison’s critique. Instead, the

Founders argued over how much to adhere to the British model. Political scientist

13. Id.

14. Id.

15. See Michael D. Ramsey, Textualism and War Powers, 69 U. C

HI. L. REV. 1543, 1570 (2002)

(referring to Grotius as “the founder of modern international law”).

16. B

LACKSTONE, supra note 7, at 248.

17. James Madison, Letters of Helvidius, nos. 1–4, in 6 T

HE WRITINGS OF JAMES MADISON 138–77

(Gaillard Hunt ed., 1910) [hereinafter 6 M

ADISON].

18. Id.

2023] THE FOUNDERS’ DECLARATION OF WAR 283

Harvey Mansﬁeld explains the situation succinctly in his claim that the Constitution

reﬂected a “struggle between two conceptions of executive power that are identiﬁed

with two points of view: a weak executive resulting from the notion that the people

are represented in the legislature and a strong executive from the notion that the

people are embodied in the executive.”

Ultimately, although the Founders gener-

ally agreed that it was dangerous to give the executive the sole power to declare

war, they were still divided about whether war was an inherently executive or leg-

islative function because of the inﬂuence of the British model. Analyzing the

Articles of Confederation and the Constitutional Convention helps shed light on

the debate.

B. The Articles of Confederation

The Articles of Confederation are instructive because they demonstrated the

colonies’ reaction to the British system and because they set the backdrop for the

reforms implemented in the Constitution. Under the Articles, the Continental

Congress was the sole branch of government.

Therefore, the legislature had the

full power over matters of war and peace: “The united states in congress

assembled, shall have the sole and exclusive right and power of determining on

peace and war . . . .”

By limiting questions of war to Congress, the Articles also

prohibited any one of the individual states from going to war unilaterally.

one hand, that was a signiﬁcant centralization of power compared to the colonial

era. And since there was only one branch of government, it is unlikely that the

Founders considered war powers to be a legislative—rather than executive—

function merely because the power was granted to Congress. Former Deputy

Assistant Attorney General and law professor John Yoo even suggests that under

the Articles, “when the Congress exercised its war powers, it acted as an execu

tive branch, rather than as a legislature.”

Yet on the other hand, the decision to engage in war had the most legislative

protections that the Articles provided to any power. Speciﬁcally, Congress could

appoint a “Committee of the States” that consisted of one delegate from each

state and that could make certain decisions during recess.

However, the

Committee of the States did not have the power to make decisions related to

war.

Instead, war required the vote of nine states and could only be initiated

when Congress was assembled.

In fact, the provision that set these strict

19. HARVEY MANSFIELD, TAMING THE PRINCE 5–6 (1989).

20. See Yoo, supra note 3, at 236 (“[T]he Articles vested all national powers in the Continental

Congress . . . .”).

21. A

RTICLES OF CONFDERATION of 1781, art. IX, para. 1.

22. See id. art. VI (“No State shall engage in any war without the consent of the United States in

Congress assembled, unless such State be actually invaded by enemies. . .”).

23. Yoo, supra note 3, at 238.

24. A

RTICLES OF CONFEDERATION of 1781, art. IX, para. 5.

25. Id.

26. See id. (“The United States in Congress assembled shall never engage in a war . . . unless by the

votes of a majority of the United States in Congress assembled.”). Additionally, Article X reiterated that

284 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 21:279

requirements for engaging in war was in ﬁrst sentence of the paragraph immedi-

ately following the provision that established the Committee of the States.

This

textual proximity suggests that the drafters of the Articles prioritized the preser-

vation of full legislative input regarding matters of war.

In practice, the Articles of Confederation kept decisions about war as close to

the people as possible by requiring the input of all representatives and minimizing

the potential for a small group to usurp the process. This was a 180-degree shift

from the unilateral power of the British king. Nonetheless, the weak national gov

ernment under the Articles proved problematic and the states ultimately decided

to reform the government by way of the Constitutional Convention in 1787. The

Constitution created the executive branch and reallocated war powers by making

the President Commander in Chief with the power to make treaties under Article 2,

Section II.

This represented a pendulum swing regarding how war power was

allocated during the transition from British monarchy to the American people

under the Articles of Confederation, and ﬁnally under the U.S. Constitution. The

pendulum swung away from total executive control of war powers in the British

system on one end, to total legislative control of war powers under the Articles

of Confederation, and ﬁnally came to rest in between, with the President and

Congress sharing war powers under the Constitution.

C. The Constitutional Convention

The debate during the Constitutional Convention indicates that there was a

loose consensus among the Founders recognizing the risk that the President

would abuse his position if the executive branch were given the power to declare

war. Ironically, this belief was brought to light in 1787 when the delegates in

Philadelphia brieﬂy considered empowering the President with the ability to

declare war.

Given their frustration with the Articles of Confederation, the dele-

gates initially focused on the defects of allocating all war powers to the legisla-

ture. South Carolina’s Charles Pinckney noted that the full Congress would

proceed too slowly, and instead suggested giving the power only to the

Senate.

South Carolina’s Pierce Butler ﬁrst suggested vesting the power in

the President, because he thought the Senate would be just as problematic as the

The Committee of States was prohibited from any powers that required the vote of nine state assembled

in Congress. See id., art. X (“The committee of the States, or any nine of them, shall be authorized to

execute in the recess of Congress, such of the powers of Congress as the United States in Congress

assembled, by the consent of nine States, shall from time to time think expedient to vest them with;

provided that no power be delegated to the said committee, for the exercise of which, by the articles of

confederation, the voice of nine States in the Congress of the United States assembled is requisite.”).

27. A

RTICLES OF CONFEDERATION of 1781, art. IX, paras. 5–6.

28. U.S. C

ONST. art. II, § 2, cl. 1–2.

29. 1 R

ECORDS OF THE FEDERAL CONVENTION 19 (Max Farrand ed., 1937); 2 RECORDS OF THE

FEDERAL CONVENTION 318 (Max Farrand ed., 1937).

30. See supra note 29.

2023] THE FOUNDERS’ DECLARATION OF WAR 285

whole Congress and the President had all “the requisite qualities” for war.

Elbridge Gerry of Massachusetts and George Mason of Virginia opposed the pro-

posal.

Gerry believed that empowering the executive with the power to declare

war was contrary to the principle of a republic and Mason thought the President

could “not safely be trusted” with the power.

When Butler returned to South Carolina to recommend ratifying the proposed

Constitution, he recounted the debate in a different light: “Some gentlemen were

inclined to give this power to the President; but it was objected to, as throwing

into his hands the inﬂuence of a monarch, having an opportunity of involving his

country in a war whenever he wished to promote her destruction.”

Butler’s use

of the phrase “throwing into his hands the inﬂuence of a monarch” conveyed that

the Founders—due to their experience with the British monarchy—were appre-

hensive about empowering the executive branch to declare war. Moreover, the

fact that Buter so quickly reversed his position and embraced Gerry’s and

Mason’s skepticism suggests that there was likely overwhelming aversion to ex

ecutive authority among the delegates in Philadelphia.

The works of legal scholars who analyzed the Constitution in the decades

immediately following ratiﬁcation also conﬁrm that the Founders’ decision to

grant the war-declaring power to Congress was largely due to a fear of execu

tive overreach. For example, the early-nineteenth-century jurist St. George

Tucker reﬂected on the king’s unchecked war power in his revised edition of

Blackstone’s Commentaries.

In his analysis of the Declare War Clause, Tucker

described the history of war as the people suffering at the whim of those in

power:

The personal claims of the sovereign are confounded with the interests of the

nation over which he presides, and his private grievances or complaints are

transferred to the people; who are thus made the victims of a quarrel in which

they have no part, until they become principals in it, by their sufferings.

31. Id.

32. Id.

33. Id.

34. J

ONATHAN ELLIOT, 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF

THE FEDERAL CONSTITUTION AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN

1787, at 263 (Burt Franklin 1888).

35. See 1 S

T. GEORGE TUCKER, BLACKSTONE’S COMMENTARIES 269–72 (Rothman Reprints 1969)

(1803) (“The power of declaring war, with all its train of consequences, direct and indirect, forms the

next branch of the powers conﬁded to congress; and happy it is for the people of America that it is so

vested.”). Tucker was a law professor at The College of William and Mary and supplemented his

teaching of Blackstone with lectures analyzing how American law departed from English law. See also

Davison M. Douglas, Foreword: The Legacy of St. George Tucker, 47 W

M. & MARY L. REV. 1111, 1113

(2006). He published his lectures in an edited volume of Blackstone’s Commentaries, known as

“America’s Blackstone” in 1803. Id. at 1114.

36. T

UCKER, supra note 35, at 269–72.

286 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 21:279

Coupled with the two concepts Blackstone described above—that the sover-

eign derives his power to engage in war from the people’s natural right to conduct

violence and the declaration of war channels the will of the whole nation

—

Tucker’s

commentary reveals the disadvantage of the British system. That is,

when the people sacriﬁce their liberty to declare war, the king is apt to use mili

tary force without considering the people’s well-being. William Rawle, another

prominent nineteenth-century jurist, seemed to agree with this view.

In 1825, Rawle published an early analysis of American law, A View of the

Constitution of the United States of America

Rawle echoed Tucker’s perspec-

tive that kings use war to pursue personal interests: “

monarchies, the king

generally possesses this power, and it is as often exercised for his own aggrandize

ment as for the good of the nation.”

Rawle published A View of the Constitution

more than two decades after Tucker published America’s Blackstone, which indi-

cates that Tucker’s ideas withstood the test of time in the early independence

period.

Additionally, both jurists agreed that, by granting the war-declaring power to

Congress, the Constitution created a safeguard against the executive’s impulse to

wage war for personal beneﬁt. Tucker celebrated how the Constitution restored

the people’s right to decide on matters of war by announcing, “

[h]appy the nation

where the people are the arbiters of their own interest and their own conduct!”

Similarly, Rawle made the practical point that the country is less likely to go to

war when voters contribute to the decision-making process: “Republics, though

they cannot be wholly exonerated from the imputation of ambition, jealousies,

causeless irritations, and other personal passions, enter into war more deliberately

and reluctantly.”

D. The Proclamation of Neutrality Debate

Despite the broad consensus that the executive might abuse the power to

declare war, the Founders disagreed about how far constitutional protections

should extend. This debate played out after France and England went to war in

1793 and President George Washington issued a Proclamation of Neutrality that

generated a polarized response from his contemporaries. Whereas Washington

and Hamilton believed that all war powers inherently belonged to the executive

and the Constitution merely made a practical exception for the role of declaring

war, Madison and Jefferson believed that war powers inherently belonged to the

legislature. At ﬁrst, this disagreement may seem semantic, since both sides con

cluded that it was the right decision to grant the declaration power to Congress.

Yet, the difference in the two beliefs had larger implications on whether the

37. Charles E. Shields III, Chancellor Kent’s Abridgment of Emerigon’s Maritime Insurance, 108

ENN ST. L. REV. 1123, 1152 n.222 (2004). Rawle’s analysis was “one of the most discussed works” on

the Constitution; both George Washington and Alexander Hamilton were acquainted with the book. Id.

38. W

ILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES 109–11 (2d ed. 1970).

39. T

UCKER, supra note 35, at 269–72.

40. R

AWLE, supra note 38, at 109–11.

2023] THE FOUNDERS’ DECLARATION OF WAR 287

President would be allowed to initiate hostilities at all without a Congressional

declaration—as discussed further in the next section.

When France declared war on Great Britain in early 1793, the United States

was

a formal ally of France under the 1778 Treaty of Alliance.

According to the

Treaty, in the event of war between France and Great Britain, the United States

would be obligated to defend the French West Indies from Great Britain, France

would have the right to use American ports to transport seized property, and

France’s enemies could not use American ports for wartime activity.

If the

United States were to take an active role in the conﬂict under these provisions,

Britain may have waged war against the United States in response. But a formal

declaration of neutrality would constitute a breach of the Treaty. Washington

conferred with his cabinet, which unanimously decided to proclaim neutrality

and not to call Congress into session.

Washington issued the Proclamation of

Neutrality on April 22, 1793.

And the Proclamation sparked an intense debate

about the nature of war powers.

Washington’s views about the President’s war powers set the foundation for

this debate. Overall, Washington favored a strong executive. He believed that the

President had some ability to make decisions about initiating armed hostilities

within the conﬁnes of constitutional limitations.

For example, many Americans

were averse to a powerful executive branch in the years before the Constitution

was drafted, but Washington demonstrated that he welcomed executive power by

advocating for a standing army with mandatory conscription: “It may be laid

down as a primary position, and the basis of our system, that every Citizen who

enjoys the protection of a free Government, owes not only a proportion of his

property, but even of his personal services to the defence of it.”

In contrast,

Brutus epitomized the anti-Federalist view that “[k]eeping up a standing army,

would be in the highest degree dangerous to the liberty and happiness of the com

munity[.]”

Washington’s conclusion that citizens owe the government—in spite

of the widespread concern that a standing army inhibits liberty—evokes the

British model of a strong executive that embodies the people.

Given Washington’s preference for a strong executive role in military affairs,

the Proclamation of Neutrality caused the other Founders to debate whether the

Constitution granted the President the power to declare neutrality. If the President

41. Treaty of Alliance between the United States and France (Feb. 6, 1778), in TREATIES AND OTHER

INTERNATIONAL ACTS OF THE UNITED STATES OF AMERICA 1–40 (Hunter Miller ed., 1931).

42. B

URNS, supra note 2, at 258 n.9.

43. Id. at 82–83.

44. The Proclamation of Neutrality 1793, in A C

OMPILATION OF THE MESSAGES AND PAPERS OF THE

PRESIDENTS (1897).

45. B

URNS, supra note 2, at 80.

46. George Washington, Sentiments on a Peace Establishment, in 26 T

HE WRITINGS OF GEORGE

WASHINGTON FROM THE ORIGINAL MANUSCRIPT SOURCES, 1745–1799, at 374–76, 388–91 (John C.

Fitzpatrick ed., 1944).

47. Brutus, no. 8, in 2.9 T

HE COMPLETE ANTI-FEDERALIST 96–101 (Herbert J. Storing ed., 1981).

48. See M

ANSFIELD, supra note 19, at 6.

288 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 21:279

could declare neutrality, did this imply that he believed he could also declare

war? And by declaring neutrality, was the President preventing Congress from

exercising its right to declare war?

Alexander Hamilton defended Washington’s view by arguing that the

Constitution granted

the President broad authority over war and peace. Writing

under the title Paciﬁcus, Hamilton was the leading proponent of the position

that war powers were inherently executive in nature. Accordingly, Hamilton’s

position aligned with Locke’s and Blackstone’s understanding of government.

In Hamilton’s outlook, the Constitution was part of this tradition regardless of

the formal distribution of powers:

It deserves to be remarked, that as the participation of the senate in the making

of Treaties and the power of the Legislature to declare war are exceptions out

of the general “Executive Power” vested in the President, they are to be con-

strued strictly—and ought to be extended no further than is essential to their

execution.

Thus, Hamilton considered the Declare War Clause to be an exception to what

would otherwise be the President’s executive prerogative. In Paciﬁcus no. 1,

Hamilton argued that the President had constitutional authority to issue a neutral-

ity proclamation because the executive branch was empowered to perform any

foreign affairs function that was not explicitly delegated to Congress.

But this

argument also has implications for the President’s war powers beyond the

Proclamation of Neutrality.

Hamilton believed the Vesting Clause, art. II,

§ 1, cl. 1, gave the President a

“general grant” of power because he interpreted the Constitution with a Lockean

conception of executive power—which includes “federative” power over foreign

affairs.

Under this view, the President has free reign over foreign affairs short of

the powers enumerated to Congress. But this raises the question of how to deﬁne

the speciﬁc powers retained by the President when the text enumerating

Congress’s powers is ambiguous. By claiming that the Declare War Clause

means that “the Legislature can alone declare war, can alone actually transfer the

nation from a state of Peace to a state of War,”

Hamilton leaves open the possi-

bility that defensive military operations fall outside the scope of the declaration.

As explained in the next section, Hamilton will later reach for that possibility to

49. Alexander Hamilton, Paciﬁcus, no. 1, in 15 THE PAPERS OF ALEXANDER HAMILTON 33–43

(Harold C. Syrett ed., 1793) [hereinafter 15 H

AMILTON].

50. See id. at 42 (“[I]t belongs to the ‘Executive Power,’ to do whatever else the laws of Nations

cooperating with the Treaties of the Country enjoin, in the intercourse of the UStates [sic] with foreign

Powers.”).

51. See id. at 39. (Explaining that after the President’s enumerated powers, the Constitution leaves

“the rest to ﬂow from the general grant of that power, interpreted in conformity to other parts of the

constitution and to the principles of free government.”); see also U.S. C

ONST. art. II, § 1, cl. 1 (“The

executive Power shall be vested in a President of the United States of America.”).

52. See Hamilton, Paciﬁcus, in 15 H

AMILTON, supra note 49, at 52.

2023] THE FOUNDERS’ DECLARATION OF WAR 289

explain the President’s unilateral right to decide to engage in armed conﬂict in

retaliation to an attack. In any case, Paciﬁcus was inﬂuential because it used the

Proclamation of Neutrality debate to assert that the President at least has a place

at the table in the decision to initiate hostilities.

James Madison entered the debate largely to refute Hamilton. In his Letters of

Helvidius,

Madison championed the position that the power to declare war is leg

islative by nature.

In that respect, Madison criticized the Lockean model of a

powerful executive as distorted by the experience of living under monarchical

governments. Finally, Madison argued that the Constitution’s delegation of the

power exclusively to Congress was a virtuous and practical innovation.

Unlike Hamilton, Madison was less focused on persuading the reader about

whether Washington had the constitutional authority to issue a neutrality procla

mation. Instead, the primary purpose of the Letters of Helvidius was to refute

Hamilton’s Paciﬁcus argument for broad executive powers. In fact, Madison only

drafted the letters after Jefferson implored him to rebut Hamilton’s argument.

Madison accepted Jefferson’s request and seized the opportunity to explain how

the Paciﬁcus argument had implications beyond the Proclamation of Neutrality

“[that] strike[d] at the vitals of its constitution, as well as at its honor and true

interest.”

Madison begins by explaining why the power to declare war is a legislative

function by nature.

Since the executive branch executes laws and the legisla-

ture makes laws, Madison asserted that the President’s powers “must presup-

pose the existence of the laws to be executed.”

Yet, a declaration of war does

not involve executing preexisting laws.

Instead, Madison considered that

declaring war more accurately resembled making new laws because it “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: and of enacting, as a rule for the executive, a new

code adapted to the relation between the society and its foreign enemy.”

Consequently, Madison believed that the Constitution represented a break with

the traditional British view of executive prerogative over war power.

This was

the fundamental disagreement between Hamilton and Madison. Where Hamilton

thought the Declare War clause was an exception to executive prerogative,

Madison thought it was a repudiation of the underlying theory. As explained

53. MADISON, supra note 17, at 148.

54. Letter from Thomas Jefferson to James Madison (July 7, 1793), in 26 T

HE PAPERS OF THOMAS

JEFFERSON 443–44 (John Catanzariti ed., Princeton Univ. Press 1995) [hereinafter 26 JEFFERSON] (“For

god’s sake, my dear Sir, take up your pen, select the most striking heresies, and cut him to peices [sic] in

the face of the public.”).

55. Madison, Letters of Helvidius, in 6 M

ADISON, supra note 17, at 142.

56. Id. at 148 (describing the power to make war and the treaty-making power as “being substantially

of a legislative, not an executive nature”).

57. Id. at 145.

58. Id.

59. Id.

60. B

URNS, supra note 2, at 87.

290 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 21:279

above, Madison criticized Locke’s conception of “federative” powers.

On this

point, Madison claimed that Locke was “warped by a regard to the particular gov-

ernment of England” and his “chapter on prerogative shows, how much the rea-

son of the philosopher was clouded by the royalism of the Englishman.”

Put

differently, it took secession from the British monarchy to reveal the ﬂaws in the

traditional approach to war powers under the British system.

Moreover, Madison disputed Hamilton’s complicated legal arguments in favor

of a simple reading of the constitutional text. Hamilton pointed to the President’s

“general grant” of power under the Vesting Clause to infer that the executive

branch had a role in declaring war. But Madison attacked this logic as unnecessa

rily complex, when the text of Article 1 squarely gave the declare war power to

Congress:

The power of the legislature to declare war and judge of the causes for declar-

ing 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 short, Madison preferred a textualist interpretive approach. As the principal

author of the Constitution, Madison arguably had more authority to determine

which mode of construction was more suitable to the document.

Finally, Madison defended the Declare War Clause as virtuous and practical

because it facilitated peace. Like a modern lawyer making a policy argument to

support his legal analysis, Madison warned that the executive branch is more

inclined to wage war than are the people. “[I]t 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.”

This appeal to history aligns with how Tucker and

Rawle criticized the British king for abusing the power to make war. Likewise,

Madison also agreed with Tucker’s and Rawle’s assessment that the Constitution

created a safeguard against unnecessary wars by shifting the power to declare

war to Congress.

Thomas Jefferson was not a public participant in the Proclamation of

Neutrality debate, but he supported Madison’s position from the background.

Jefferson was Washington’s Secretary of State at the time and took a deferential

stance in the matter out of political prudence.

On one hand, Jefferson privately

61. Madison, Letters of Helvidius, in 6 MADISON, supra note 17, at 144.

62. Id.

63. Id. at 161.

64. Id. at 174.

65. See id.

66. Letter from Thomas Jefferson to James Madison (July 7, 1793), in 26 J

EFFERSON, supra note 54,

at 403 (“My objections to the impolicy of a premature declaration were answered by such arguments as

timidity would readily suggest.”).

2023] THE FOUNDERS’ DECLARATION OF WAR 291

doubted the President’s power to declare neutrality and suggested replacing “neu-

trality” with “disposition.”

On the other hand, Jefferson never went as far as

requesting that President Washington call Congress into session.

Regarding the declaration of war, Jefferson only went as far as to tell

Washington that the President “was bound to preserve” a state of peace until

Congress returned to session.

This suggests that Jefferson agreed with Madison’s

legislative conception of the Declare War Clause in theory, but that Jefferson

had minimal conviction to defend that position in the context of a debate over

neutrality. Nonetheless, we know from his comments several years earlier that

Jefferson agreed with the Hamilton–Tucker–Wilson view that the executive was

the branch most likely to wage war and that transferring the power to Congress

was a useful safeguard. In a 1789 letter to Madison, Jefferson remarked, “[w]e have

already given in example one effectual check to the Dog of war, by transferring the

power of letting him loose from the Executive to the Legislative body.”

Jefferson

adhered to this view in his written communication to Madison during the Paciﬁcus–

Helvidius debate by adamantly objecting to Hamilton’s Paciﬁcus arguments.

Taken together, it is likely that Jefferson was more opposed to the implications

of Hamilton’s interpretation of broad Presidential war powers than to the immediate

issue of neutrality.

This interpretation seems plausible given that Jefferson had also disagreed

with Hamilton’s interpretation of the Treaty Power. For example, when Hamilton

suggested at a cabinet meeting that the President and Senate could use a treaty to

circumvent Congress’s power to declare war, Jefferson objected with a plain-

meaning argument. Jefferson recalled that “[i]n every event I would rather con

strue so narrowly as to oblige the nation to amend and thus declare what powers

they would agree to yield, than too broadly & indeed so broadly as to enable the

Executive and Senate to do things which the constn [

sic] forbids.”

This state-

ment gives way to two inferences. First, Jefferson agreed with Madison’s plain

meaning approach to analyzing the Constitution. Second, Jefferson was also

wary of interpreting the Constitution in a way that would favor the executive

branch over the legislative branch.

67. Id.

68. B

URNS, supra note 2, at 83.

69. Thomas Jefferson, The Anas, in 1 T

HE WORKS OF THOMAS JEFFERSON 325–30 (Leicester Ford

ed., 1905) [hereinafter 1 J

EFFERSON].

70. Letter from Thomas Jefferson to James Madison (Sept. 6, 1793), in 12 T

HE PAPERS OF JAMES

MADISON 382–88 (Charles F. Hobson & Robert A. Rutland eds., 1979).

71. 26 J

EFFERSON, supra note 54.

72. B

URNS, supra note 2, at 83.

73. Thomas Jefferson, The Anas, in 1 J

EFFERSON, supra note 69, at 330.

292 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 21:279

III. PRESIDENTIAL WAR POWERS IN PRACTICE

A. The Quasi-War with France

The Founders ﬁnally tested their interpretations of the Declare War Clause dur-

ing John

Adams’ presidency in an armed conﬂict with France now known as the

Quasi-War.

France escalated its naval activity in the war with Britain after the

American Proclamation of Neutrality. When the French navy began targeting

American merchant ships, the United States responded with naval warfare even

though Congress never declared war.

In this context, the constitutional theories

that the Founders had developed in the years between the Articles of Confederation

and the Paciﬁcus–Helvidius debate confronted the geopolitical reality of the

late eighteenth century. The result did not neatly ﬁt within either Hamilton’s,

Madison’s, or Jefferson’s preferred model. Rather, Adams seemed to imple-

ment aspects of each interpretation to balance the country’s national-security

interests with the separation of executive and legislative war powers. In the

process, the Quasi-War established a political and legal precedent for the

President’s ability to commence military operations in the absence of a

Congressional declaration of war.

The Quasi-War deﬁned the conditions under which the President may initiate

armed conﬂict without a formal declaration of war. Speciﬁcally, three attributes

of the Quasi-War justiﬁed the use of force: ﬁrst, the war was fought for defensive

purposes; second, the war was a “

limited war” in its scale and objective; and

third, Congress authorized hostilities even though it never went as far as to

declare war. Contemporaneous legal analysis determined that, because of these

three attributes, the conﬂict did not require a full-scale declaration of war.

Moreover, the Supreme Court conﬁrmed this position in a series of cases arising

out of the conﬂict.

Nonetheless, Madison and Jefferson disputed the legality of

the Quasi-War. Overall, the Quasi-War transformed the founding conceptions of

war powers into the ﬁrst judicial interpretation of the Declare War Clause.

The Quasi-War unfolded during the French Revolutionary wars. As explained

above, France and the United States had signed a peace treaty in 1778.

But bilat-

eral relations changed in 1793, when the French people overthrew the monarchy.

Although France was a decisive American ally when the United States achieved in-

dependence from Great Britain, the French government had adopted a different

74. Historians adopted the name “Quasi-War” because the 1798–1800 naval conﬂict with France

was undeclared, defensive, and limited in scope. This designation itself indicates the ambiguity of

whether the conﬂict was an ofﬁcial or unofﬁcial war. This paper uses the title “Quasi-War” to be

consistent with the approach of most historians, not to qualify whether the word “war” is constitutionally

appropriate.

75. Gregory Fehlings, America’s First Limited War, 53 N

AVAL WAR C. REV. 101, 110 (2000).

76. Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800); Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801); Little v.

Barreme, 6 U.S. (2 Cranch) 170 (1804).

77. Treaty of Alliance between the United States and France, in T

REATIES AND OTHER

INTERNATIONAL ACTS, supra note 41.

78. Fehlings, supra note 75, at 106.

2023] THE FOUNDERS’ DECLARATION OF WAR 293

posture by the time President Washington issued the Proclamation of Neutrality in

1793. France had declared war against Great Britain, Austria, Prussia, and the

Netherlands, and Washington did not want to be drawn into a war with Britain

resulting from the 1778 alliance.

Accordingly, the United States refused to perform

its treaty obligation to defend French possessions in the Caribbean from British cap-

ture.

Then, in 1794, Washington signed a commercial treaty with Britain known as

the Jay Treaty.

Under the Jay Treaty, the United States agreed not to ship the prop-

erty of Britain’s enemies and granted Britain the exclusive use of American ports.

France believed the Jay Treaty was a British–American military alliance opposed to

France and the French navy retaliated by attacking American merchant ships in a

campaign that lasted until John Adams was elected in 1797.

By July 1797, France had captured over 300 American merchant ships.

Despite the losses, the United States was unable to defend its commercial ship-

ping because it had no warships.

A full-scale war with France would devastate

the United States. So, in October 1797, Adams sent a diplomatic delegation to

Paris—including future Supreme Court Chief Justice John Marshall—to negoti

ate an agreement that would safeguard American trade routes.

French Foreign

Minister Tallyrand refused to deal with the delegation in an infamous episode

now known as the XYZ Affair.

Adams proceeded to initiate naval operations against France to protect

American merchant ships. In March 1798, Adams requested that Congress

enact naval defense measures and unilaterally announced that merchant ships

could arm themselves.

Id. at 110; Letter

from John Adams, President of the U.S., to the U.S. Cong. (Mar. 19, 1798)),

available at https://Founders.archives.gov/documents/Adams/99-02-02-2382 [https://perma.cc/RW88-

A2QF] (urging Congress

to adopt measures “for the protection of our Seafaring and commercial Citizens”).

However, Adams did not request an all-out declaration of

war. In July of 1798, Congress ﬁnally assented to Adams’ requests with two pieces

of legislation. First, Congress passed an act that voided all American treaties with

France.

Second, Congress passed an act authorizing the President to “instruct the

commanders of the public armed vessels which are, or which shall be

employed in the service of the United States, to subdue, seize and take any

armed French vessel . . . .”

Between April and July of 1798, Congress also estab-

lished the Department of the Navy and the Marine Corps at Adams’ request.

79. Id. at 107.

80. Id.

81. Yoo, supra note 3, at 292.

82. Fehlings, supra note 75, at 108.

83. This ﬁgure increased to over 2,000 American merchant ships seized by the French navy by the

end of 1800. Id.

84. Id.

85. Id. at 109.

86. See id. The name “X, Y, Z Affair” was based on the code names of Talleyrand’s three agents.

87.

88. An

Act to Declare the Treaties Heretofore Concluded with France, no Longer Obligatory on the

United States, ch. 67, 1 Stat. 578 (1798).

89. An Act Further to Protect the Commerce of the United States, ch. 68, 1 Stat. 578 (1798).

90. Fehlings, supra note 75, at 111.

294 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 21:279

Over the course of these events, Adams set a political precedent for the legiti-

macy of an undeclared war. This paper argues that an undeclared war is constitu-

tional when it meets the following three conditions that describe Adams’ conduct

during the Quasi-War: ﬁrst, the naval conﬂict with France was a defensive action

because France had attacked American civilians at sea and then refused to con-

sider American attempts to negotiate a diplomatic resolution during the XYZ

Affair; second, Adams proposed a limited war in its objective (protecting

American merchant ships), forces (just the Navy), and target (armed French ves-

sels); third, Congress authorized the conﬂict by nearly all means possible short of

declaring war. Congress voided the alliance with France, established naval forces,

and authorized the President to direct the naval forces against French ships.

American legal experts writing during the Quasi-War and shortly afterward

agreed that the conﬂict amounted to a genuine and lawful war. Adams’ Attorney

General, Charles Lee, determined that the United States and France were legally in a

state of war shortly after the conﬂict began. Lee referenced both the defensive nature

of the conﬂict and Congressional authorization in a 1798 Attorney General opinion:

Having taken into consideration the acts of the French republic relative to the

United States, and the laws of Congress passed at the last session, it is my opin-

ion that there exists not only an actual maritime war between France and the

United States, but a maritime war authorized by both nations.

The purpose of the opinion was to announce that a French national, who was in

the United States acting on behalf of France, was liable for treason under the law

of war. That determination showed that classifying the conﬂict as a war was not a

formality but had important legal implications.

Additionally, William Rawle cited the Quasi-War in the section of his 1825

Constitutional analysis that addressed the war powers.

Recall that Rawle’s per-

spective was that the Constitution sought to check the executive’s proclivity to

unilaterally wage war.

Still, Rawle conceded that the Quasi-War demonstrated

that in the United States, “we may be involved in a war without a formal declara-

tion of it.”

Reﬂecting on the conﬂict three decades later, Rawle emphasized the

fact that the conﬂict was defensive and limited. It was defensive because “[i]t was

founded on the hostile measures authorized by congress [sic] against France, by

reason of her unjust aggressions on our commerce—yet there was no declaration

of war.”

And it was limited “because it was only waged on the high seas.”

On the other hand, James Madison and Thomas Jefferson evaluated the Quasi-

War from the perspective they had articulated during the Proclamation of

91. Treason, 1 Op. Att’y Gen. 84 (1798) (emphasis in original).

92. R

AWLE, supra note 38, at 109.

93. Id.

94. Id.

95. Id.

96. Id.

2023] THE FOUNDERS’ DECLARATION OF WAR 295

Neutrality debate. In an April 1798 letter to then-Vice President Jefferson,

Madison criticized the steps President Adams was taking that eventually led to

the war.

Madison believed that Adams’s announcement permitting merchant

vessels to arm themselves was “a virtual change of the law, & consequently a

usurpation by the Ex. of a legislative power.”

In this way, Madison adhered to

the position he developed in Helvidius No. I, that the power to declare war is leg-

islative in nature because it involves making laws rather than executing laws.

Jefferson seemed to agree with Madison in principle. However, the Vice

President also acknowledged that President Adams had enough political support

to commence hostilities even if Congress did not declare war. In his reply to

Madison’s April letter, Jefferson expressed agreement by admitting that, “[i]t is a

pretty strong declaration that a neutral & paciﬁc conduct on our part is no longer

the existing state of things.”

100

Nonetheless, Jefferson conceded that after Adams

made the announcement, “[t]he vibraters [sic] in the H. of R. have chieﬂy gone

over to the war party.”

101

Again, Jefferson characteristically prioritized political considerations over

constitutional theory. Just as Jefferson privately agreed with Madison regarding

the Proclamation of Neutrality but refused to criticize President Washington pub-

licly, Jefferson also agreed with Madison ahead of the Quasi-War but refused to

criticize President Adams publicly. Once more, Jefferson calculated wisely.

Although Madison remained committed to a strict textual reading of the

Constitution, Adams won the political battle when Congress acquiesced by

authorizing naval operations in July 1798. In effect, geopolitical reality got in the

way of Madison’s principled constitutional interpretation.

B. The Quasi-War Cases

The Quasi-War also gave rise to the Supreme Court’s ﬁrst judicial interpreta

tion of the Declare War Clause. Three cases arose from property disputes by

American commanders who had seized ships during the conﬂict: Bas v. Tingy,

Talbot v. Seeman, and Little v. Barreme (the Quasi-War Cases).

102

Where Bas

and Talbot established that the Quasi-War was an actual war because Congress

could authorize a limited war, Little restricted the President’s discretion during

limited wars.

103

97. Letter from James Madison to Thomas Jefferson (Apr. 2, 1798), in 6 THE WRITINGS OF JAMES

MADISON, 312–14 (Gaillard Hunt ed., 1910) (1798).

98. Id. at 313; see also Letter from John Adams to the U.S. Cong., supra note 87 (rescinding

instructions that merchant vessels were prohibited from “[s]ailing in an armed condition”).

99. Madison, Letters of Helvidius, in 6 M

ADISON, supra note 17, at 146.

100. Letter from Thomas Jefferson to James Madison (Apr. 19, 1798), in 8 T

HE WORKS OF THOMAS

JEFFERSON 409 (1905).

101. Id.

102. Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800); Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801); Little v.

Barreme, 6 U.S. (2 Cranch) 170 (1804).

103. See Bas, 4 U.S. (4 Dall.) at 37; Talbot, 5 U.S. (1 Cranch) at 1; Little, 6 U.S. (2 Cranch) at 170.

296 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 21:279

In the progression of the Quasi-War Cases, the Supreme Court conﬁrmed that

it considered the naval conﬂict with France to be a lawful war even though

Congress never formally declared war. In doing so, the Court expounded on the

Declare War Clause. The Court’s analysis of Congressional war powers suggests

that the Court approved the three conditions that President Adams set at the outset

of the Quasi-War. Speciﬁcally, an undeclared war may be constitutional if it is

defensive, limited, and nominally authorized by Congress. In the Quasi-War

Cases, the Court explicitly acknowledged that the latter two conditions—limited

war and Congressional authorization—inﬂuenced the conclusions of the cases.

Further, although the Court did not assert that the defensive nature of the conﬂict

inﬂuenced the holdings, the context of the cases indicates that it was an implicit

consideration in the Court’s analysis.

In Bas v. Tingy, the owner of an American merchant ship seized by a French

privateer disputed

the salvage value with the commander of an American warship

that had recaptured the merchant vessel.

104

Commanders who recaptured seized

ships were entitled to compensation from the original owner, but two statutes

assigned different salvage values based on the circumstances. A 1798 statute

assigned a salvage value of one-eighth the value of the ship whenever a ship was

recaptured “by any public armed vessel of the United States.”

105

But a 1799 stat-

ute assigned a more generous one-half salvage value when a ship was speciﬁcally

recaptured “from the enemy.”

106

The case turned on whether France was ofﬁcially

an “enemy” of the United States during the Quasi-War. The owner argued that

the term “enemy” only applies when Congress declares war.

107

The commander

argued that France and the United States were enemies because they were law-

fully at war.

108

Id. at 38. The

defendant, Commander Tingy, was represented by counsel “Rawle, and W.

Tilghman.” Id. It is possible that Tingy’s counsel Rawle was the same William Rawle discussed above,

author of A View of the Constitution of the United States of America. Rawle served as U.S. District

Attorney for Pennsylvania under President George Washington until 1799, in which capacity Rawle

prosecuted the Whiskey Rebellion trial. Univ. of Pa. Archives & Records Ctr., William Rawle 1759–

1836, https://archives.upenn.edu/exhibits/penn-people/biography/william-rawle [https://perma.cc/

KB9X-AKQK]. Nonetheless, the

identity of Tingy’s counsel Rawle remains unclear after a review of

the public historical record.

The Court ultimately sided with the commander.

109

The justices

unanimously agreed that the United States and France had been in a state of

war.

110

Bas established two points that impact the meaning of the Declare War Clause.

First, the Court considered the Quasi-War to be an actual war—even though

Congress had not declared war.

111

This implies that a declaration is not a neces-

sary precondition of a state of war. Second, Congress has the power to authorize

104. Bas, 4 U.S. (4 Dall.) at 37.

105. Id.

106. Id.

107. Id. at 38.

108.

109. Bas,

4 U.S. (4 Dall.) at 43.

110. Id.

111. Id.

2023] THE FOUNDERS’ DECLARATION OF WAR 297

either a general war or a limited war.

112

A Congressional declaration of war estab-

lishes a general war while lesser forms of Congressional authorization establish a

limited war, such as the Quasi-War.

The justices highlighted the distinction between general and limited war in se

riatim opinions. Justice Washington deﬁned the two categories:

If it be declared in form, it is called solemn, and is of the perfect kind; because

one whole nation is at war with another whole nation . . . . But hostilities may

subsist between two nations more conﬁned in its nature and extent; being lim

ited as to places, persons, and things; and this is more properly termed imper-

fect war; because not solemn, and because those who are authorised to commit

hostilities, act under special authority, and can go no farther than to the extent

of their commission.

113

Thus, in a general war every member of the nation is authorized to commit hos-

tilities against the enemy nation “

every place, and under every circum

stance.”

114

In contrast, combatants in a limited war cannot exceed the narrow

scope of the conﬂict.

115

This distinction makes sense in light of Blackstone’s

assertion that a declaration of war invokes the will of the whole community.

116

seems that Justice Washington understood the traditional purpose of a declaration

but still acknowledged that the Constitution did not prohibit military action on a

smaller scale.

Justice Chase concurred more concisely: “Congress is empowered to declare a

general war, or [C]ongress may wage a limited war; limited in place, in objects,

and in time.”

117

He concluded that the Quasi-War was a limited war because

Congress only sanctioned naval hostilities and only permitted soldiers or citizens

acting in self-defense to ﬁght.

118

This suggests that the exclusively defensive na-

ture of the conﬂict was part of what made the Quasi-War limited.

Talbot v. Seeman reafﬁrmed the two Bas conclusions.

119

In Talbot, an

American warship recaptured a neutral Hamburg ship that had been seized and

armed by the French navy.

120

The American captain sued the Hamburg owner for

salvage, arguing that Congress had authorized the capture of any armed vessel

under French control, not merely French naval warships or seized American

112. Id.

113. Id. at 40.

114. Id.

115. Id.

116. B

LACKSTONE, supra note 7, at 249–51.

117. Bas, 4 U.S. (4 Dall.) at 43.

118. See id. (“There is no authority given to commit hostilities on land; to capture unarmed French

vessels, nor even to capture French armed vessels lying in a French port; and the authority is not given,

indiscriminately, to every citizen of America, against every citizen of France; but only to citizens

appointed by commissions, or exposed to immediate outrage and violence.”).

119. See Talbot, 5 U.S. (1 Cranch) at 28 (explaining that Congress may authorize general or partial

hostilities).

120. Id. at 2.

298 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 21:279

ships.

121

The ship’s owner argued that the Acts of Congress did not apply to neu-

tral vessels and that therefore salvage was not warranted.

122

As in Bas, the Court

again sided with the American captain.

123

Chief Justice John Marshall wrote the Talbot opinion.

124

Marshall based his

analysis on the precedent the Court set in Bas by explaining, “Congress have the

power of declaring war. They may declare a general war, or a partial war . . . .

This court, in the case of Bass and Tingey, have decided that the situation of this

country with regard to France, was that of a partial and limited war.”

125

Once

Marshall established that the conﬂict was a lawful war, he then addressed the

recapture question.

Even though the statutes authorizing the Quasi-War did not address neutral

vessels,

126

the Chief Justice determined that recapture was lawful since the

Hamburg ship “was an armed vessel under French authority, and in a condition to

annoy the American commerce.”

127

Marshall even suggested that recapture was a

necessary defensive measure, adding that “it was [the captain’s] duty to render

her incapable of mischief.”

128

Recall that Marshall participated in the events that encouraged President

Adams to launch the Quasi-War because Marshall was part of the American dele-

gation that French Foreign Minister Talleyrand scorned during the XYZ Affair in

1797.

129

Consequently, it would be reasonable to infer that Marshall had a strong

sense of the defensive importance of the Quasi-War and was biased towards ﬁnd-

ing it constitutional for defensive purposes.

Finally, Little v. Barreme closed out the Quasi-War cases by conﬁning the

President’s power to direct military operations during a limited war to only those

operations that Congress had expressly authorized.

130

In Little, the commander of

an American warship captured a Danish ship, which he suspected was actually

American, when it was returning from a French port.

131

Congress passed a statute

in February 1799 that authorized the President to instruct naval commanders to

search American ships suspected to be “engaged in any trafﬁc or commerce”

with France and to seize those “bound or sailing to any port or place within the

territory of the French republic.”

132

The Secretary of the Navy then implemented

the act by ordering commanders to prevent trade with France “where the vessels

are apparently as well as really American . . . and bound to or from French

121. Id. at 7–8.

122. Id. at 11.

123. Id. at 32.

124. Id. at 26.

125. Id. at 8–9.

126. Id. at 31.

127. Id. at 32.

128. Id.

129. Fehlings, supra note 75 at 109.

130. Little, 6 U.S. (2 Cranch) at 170.

131. Id. at 178–79.

132. Id. at 176–77.

2023] THE FOUNDERS’ DECLARATION OF WAR 299

ports.”

133

The question was whether the American commander was liable for

complying with an executive order that conﬂicted with the statute. This time, the

Court ruled against the commander.

Chief Justice Marshall again wrote the opinion in Little.

134

Marshall acknowl-

edged that “[i]t is by no means clear” that the President’s authority as

Commander in Chief does not contain the power to order more effective means to

achieve a military objective.

135

However, in this case “the legislature seem to

have prescribed that the manner in which this law shall be carried into execution,

was to exclude a seizure of any vessel not bound to a French port.”

136

Thus,

the Supreme Court afﬁrmed the circuit court’s holding that the commander was

liable for damages.

137

Overall, Little established that the President may not super-

sede the restrictions that Congress sets on a limited war. Nonetheless, Justice

Marshall’s opinion left the door open to the possibility that the President retains

the authority to take unilateral action absent unambiguous Congressional

parameters.

138

C. Jefferson’s Barbary War

President Thomas Jefferson led the United States into its second undeclared

war in a naval conﬂict in the Mediterranean known as the First Barbary War.

Like the Quasi-War, the First Barbary War was fought for defensive purposes,

was limited in scale and objective, and was authorized by Congress to a lesser

degree than a full-scale declaration of war. In that respect, President Jefferson

afﬁrmed that the Quasi-War set sufﬁcient political and legal precedent for the

President to initiate armed hostilities without a Congressional declaration of war.

But the First Barbary War differed from the Quasi-War because Tripoli unilater

ally declared war on the United States.

139

U.S. Dep’t of

State, Ofﬁce of the Historian, Barbary Wars, 1801–1805 and 1815–1816, https://

history.state.gov/milestones/1801-1829/barbary-wars [https://perma.cc/5SP3-BL76]

The Mediterranean conﬂict, therefore,

paints a more comprehensive picture of the Founders’ debate over the President’s

power to commence hostilities when another country declares war ﬁrst.

The Barbary States—comprised of present-day Morocco, Algeria, Tunisia, and

Libya—practiced state-supported piracy.

140

Britain and France paid tribute to

the Barbary States in exchange for free passage of merchant vessels in the

Mediterranean.

141

After the United States declared independence, Barbary ships

133. Id. at 178.

134. Id. at 170.

135. Id. at 177.

136. Id. at 177–78.

137. Id. at 179.

138. See Stephen I. Vladeck, Congress, the Commander-in-Chief, and the Separation of Powers

After Hamdan, 16 T

RANSNAT’L L. & CONTEMP. PROBS. 933, 943 (2007) (“Marshall plainly suggested

that the issue might be different had Congress not interposed any limits on the Navy’s authority to

capture suspected French ships.”).

139.

140. Id.

141. Id.

300 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 21:279

began attacking American vessels, which were no longer under British protec-

tion.

142

Three months into Jefferson’s presidency, the President ordered a small

naval squadron to defend American commerce in the Mediterranean.

143

The expe-

dition’s initial instruction was to only use defensive force.

144

But then President

Jefferson ordered the expedition to respond to aggression “by sinking, burning

or destroying their ships & Vessels wherever you shall ﬁnd them” if one of the

Barbary states declared war ﬁrst.

145

The order was prescient because Tripoli

soon declared war against the United States on May 14, 1801.

146

An instructive debate ensued among Jefferson’s cabinet when the President

learned about Tripoli’s declaration of war. In the President’s ﬁrst annual message

to Congress on December 8, 1801, Jefferson stated that he was “unauthorised by

the [C]onstitution, without the sanction of Congress, to go beyond the line of

defence.”

147

This view is consistent with Jefferson’s positions during the

Proclamation of Neutrality and Quasi-War when the future President favored lim-

ited executive power.

148

However, this was at odds with his cabinet’s consensus,

that the President did not need any statutory authority to ﬁght in a war initiated by

another state.

149

In fact, University of Virginia Law Professor Robert Turner sur-

mises that Jefferson intentionally misrepresented the Declare War Clause as a po-

litical maneuver to accelerate Congressional action.

150

In his notes from a May 15, 1801, cabinet meeting, Jefferson recorded that, “if

war exists,” can the squadron constitutionally “search for [and] destroy the

enemy’s vessels wherever they can ﬁnd them?—all except L[incoln]—agree

they should; M[adison], G[allatin], [and] S[mith] think they may pursue into

the harbours, but M[adison] that they may not enter but in pursuit.”

151

Jefferson’s

Treasury Secretary, Albert Gallatin, took the position that the President has equal

power to direct military forces, whether Congress declares war on another state or

another state declares war on the United States.

152

142. Id.

143. B

URNS, supra note 2 at 96.

144. B

URNS, supra note 2 at 95.

145. Robert F. Turner, War and the Forgotten Executive Power Clause of the Constitution: A Review

Essay of John Hart Ely’s War and Responsibility, 34 V

A. J. INT’L. L. 903, 911 (1994) (emphasis

omitted).

146. B

URNS, supra note 2 at 95.

147. Thomas Jefferson, First Annual Message to Congress, in 36 T

HE PAPERS OF THOMAS JEFFERSON

58, 59 (Barbara B. Oberg. ed., 2009).

148. See supra notes 73, 100.

149. Robert F. Turner, State Responsibility and the War on Terror: The Legacy of Thomas Jefferson

and the Barbary Pirates, 4 C

HI. J. INT’L. L. 121, 130 (2003).

150. Turner, supra note 145, at 912.

151. Thomas Jefferson, Notes on a Cabinet Meeting, in 34 T

HE PAPERS OF THOMAS JEFFERSON 114,

115 (Barbara B. Oberg. ed., 2007) [hereinafter 34 J

EFFERSON]; see also Turner, supra note 145, at 911

(naming the cabinet members based on the initials in Jefferson’s notes).

152. Thomas Jefferson, Notes on a Cabinet Meeting, in 34 J

EFFERSON, supra note 151, at 114–15.

2023] THE FOUNDERS’ DECLARATION OF WAR 301

Alexander Hamilton, then Jefferson’s Secretary of War, disagreed with

Jefferson’s statement to Congress and used the opportunity to interpret the

Declare War Clause in a public paper titled The Examination, no. 1:

[T]he plain meaning of [the Declare War Clause] 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 . . . in other words, it belongs to Congress only, to go to

War. But when a foreign nation declares, or openly and avowedly makes war

upon the United States, they are then by the very fact, already at war, and any

declaration on the part of Congress is nugatory: it is at least unnecessary.

153

Alexander Hamilton, The Examination No. 1 (Dec. 7 1801), available at https://founders.

archives.gov/documents/Hamilton/01-25-02-0264-0002 [https://perma.cc/2W45-RUSV].

Hamilton concluded that the United States can be brought into a state of war

against its will if another country commences hostilities ﬁrst. That helps to

explain why the rest of the cabinet was not apprehensive about the constitutional

ity of the President’s power to direct the military when attacked by a foreign ad-

versary. Under this view, once Tripoli declared war, the United States was at war

and a Congressional declaration would have been a redundant formality.

Examination, no. 1 also completes the argument Hamilton began in Paciﬁcus

no. 1

. In Paciﬁcus, Hamilton opened the door to the possibility that the President

has the power to initiate defensive military action absent a declaration of war

because the Vesting Clause gives the executive broad authority over powers not

granted to Congress.

154

In Examination, no. 1, Hamilton made that point in

explicit terms. The Founders were divided over how far the President’s executive

authority extends into decisions to make war or peace during the Proclamation of

Neutrality debate. But by the First Barbary War, the Founders coalesced behind

Hamilton. As Jefferson’s notes indicate, even Madison—the chief defender of

limited executive war power—agreed that the President could order commanders

to pursue Tripolitan ships “in pursuit” of an enemy that struck ﬁrst.

155

Whether Jefferson’s address to Congress was a sincere interpretation of the

Constitution or just political posturing, his plea to Congress succeeded. In

February 1802, Congress gave Jefferson statutory authority to seize all Tripolitan

ships.

156

Jefferson continued to send additional frigates to the Mediterranean until

the two parties concluded a peace treaty in 1805, which did not require the United

States to pay Tripoli tribute.

157

Overall, the First Barbary War adhered to the

153.

154. See

supra text accompanying notes 4–51.

155. See Thomas Jefferson, Notes on a Cabinet Meeting, in 34 J

EFFERSON, supra note 151 (“M

[adison] [thinks] that they may not enter but in pursuit.”) (emphasis omitted).

156. Thomas Jefferson, Circular to Naval Commanders, in 36 T

HE PAPERS OF THOMAS JEFFERSON

605 (Barbara B. Oberg ed., 2009).

157. U.S. Dep’t of State, Barbary Wars, supra note 139.

302 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 21:279

Quasi-War precedent. The Mediterranean conﬂict was limited to naval actions

directed to prevent piracy; it was defensive because the pirates had attacked

American ships before Tripoli even declared war; and Jefferson insisted on get

ting Congressional authorization

in the face of resistance from his cabinet.

IV. C

ONCLUSION

The theoretical and political foundations of the Declare War Clause are rooted

in the eighteenth-century British model, where the king had absolute power to

make war. Blackstone and Locke illuminated how a powerful executive embod-

ied the

will of the people in matters of war and peace. The American Founders

designed the Articles of Confederation to reallocate the war-making power to the

people by vesting it in Congress. Yet, the Constitutional Convention debates indi

cated that experience had convinced the Founders to adopt a system where war

powers were shared between the executive and legislature. In this way, the alloca-

tion of war powers followed a pendulum-like development: absolute executive

control under the British model, to total Congressional control under the Articles

of Confederation, and ﬁnally a shared model under the Constitution.

The Paciﬁcus-Helvidius debate that unfolded after President Washington

issued the Proclamation of Neutrality revealed the Founders’ impression of

the Declare War Clause in the early years of American independence.

Washington and Hamilton favored a traditional system with a powerful exec

utive, while Madison and Jefferson believed that the declare war power more

naturally belonged to the legislature, so they favored a plain meaning inter-

pretation of the text.

As the United States began to operate as an independent entity within com-

mercial and foreign affairs, geopolitical reality inﬂuenced how the President

exercised war power in practice. The Quasi-War with France was America’s

ﬁrst undeclared war and it set a precedent that the President can initiate armed

conﬂict without a Congressional declaration of war if three conditions are met:

force is used defensively, the conﬂict is limited, and Congress provides a modi

cum of authorization. The Supreme Court conﬁrmed that war fought under

these conditions is constitutional, which set the ﬁrst legal precedent for unde-

clared war.

Finally, the First Barbary War demonstrated that the ﬂuid perceptions of unde-

clared war were beginning to solidify under sustained geopolitical pressure for

the President to act pragmatically on the world stage because Jefferson adhered

to the Quasi-War precedent. Despite this growing consensus, during the First

Barbary War, the Founders did not unanimously agree on the scope of the

President’s power to commence military operations for defensive purposes.

With the Quasi-War criteria in mind, the Founders likely would not be sur

prised by the American interventions in Vietnam and Iraq. Both conﬂicts loosely

qualify as defensive, limited, and congressionally authorized. In Vietnam,

American military action was limited in scope because the War was essentially

2023] T

HE FOUNDERS’ DECLARATION OF WAR 303

contained to the territory of Vietnam

158

and the objective was to prevent the

Communist Vietcong from controlling the country. Foreign policy merits aside,

there is a reasonable argument that Vietnam was a limited engagement. Congress

also authorized military intervention by passing the Tonkin Gulf Resolution,

which approved of “all necessary steps, including the use of armed force, to assist

any member or protocol state of the Southeast Asia Treaty Organization.”

159

The

most controversial element is whether preventing the spread of communism was

sufﬁcient to consider intervention in Vietnam defensive in nature. Madison and

Jefferson would almost certainly not accept this argument, although Hamilton

may have been amenable to it.

This analysis is similar for the Second Iraq War. American military action was

initially limited to toppling the Saddam Hussein regime and was intended to be

contained to Iraq. Congress authorized the President “to use the Armed Forces of

the United States as he determines to be necessary and appropriate” in the 2002

Authorization for the Use of Military Force.

160

Again, the defensive purpose of

the Second Iraq War is more controversial. The initial invasion was predicated on

eliminating the threat of Saddam Hussein’s weapons of mass destruction,

although the U.S. military never uncovered any such weapons. But given the

scope of Congressional authorization, the Founders probably would have consid-

ered the conﬂict to be a legitimate limited war.

In any case, the Founders of the Constitution interpreted the Declare War

Clause in a way that would surprise most modern critics of unilateral Presidential

military action. As the Quasi-War and First Barbary War demonstrate, the Founders

were not categorically opposed to military action absent a Congressional declaration

of war. Rather, they would have considered it constitutional for the President to initi-

ate military action without a declaration of war under the conditions that President

Adams exempliﬁed in the Quasi-War. If military action is defensive, limited in

scope and purpose, and authorized by Congress in some form, then it remains con-

sistent with the original understanding of art. I, § 8, cl. 11.

158. Admittedly, this argument does not reﬂect the full history of the Vietnam War. American

military force spilled over into Cambodia and Laos during the Vietnam War, although those incursions

purportedly targeted only Vietcong operations across the border. Still, the war was at least limited to the

region surrounding Vietnam. This analysis is a rhetorical exercise meant to put the Quasi-War in a

modern context, not to make historical judgments.

159. Pub. L. No. 88–408, §2, 78 Stat. 384 (1964).

160. Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107–243,

§3(a) 116 Stat. 1498 (2002).

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