Founders' Fuzziness

By David M. Kennedy

The President proposes, and the Congress disposes," the old saying goes, and it suggests that while Presidents take the initiative, the Legislative Branch has the ultimate say. But when it comes to warmaking, that homely aphorism is dead wrong. President Bush has proposed sending more troops to Iraq. In theory, it is now up to Congress to ratify or reject his request. But neither the Constitution's genius nor more than two centuries of experience have managed to make this a contest between equals. As has happened so often in the past, Congress will once again be struggling to punch above its weight.

War gave birth to the U.S., but when the men who made the American Revolution went on to make a Constitution, they agonized over the rules for the new Republic's warmaking powers. They had no doubt that the state's very existence depended on its ability to field an armed force swiftly and effectively. Yet they also read history as a sorry record of warlords, monarchs and tyrants who exercised power arbitrarily. The founders meant to create a new political order in which sovereignty would reside not with the rulers but with the people, especially when it came to the fearsome sanction of military power.

Thus they invested in Congress--the most broadly representative and directly accountable branch of government--the authority to "declare War," to raise and support armies (while specifying that "no Appropriation of Money for that use shall be for a longer term than two years"), to "provide and maintain a Navy" and to summon into federal service, organize, arm and discipline the state militias. But they also anointed the President--theoretically, at least, somewhat insulated from popular whim by the Electoral College--as the "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several states" when called into national employ.

Nowhere has the fabled system of checks and balances proved more contentious. Because so much is at stake in questions of war and peace, the founders in effect crafted an invitation to perpetual conflict between Congress and the President. On no occasion has Congress compelled the President to undertake a military action against his will (although it came close to forcing John Adams to make war against France in the 1790s)--providing at least some support for the notion that the processes of democratic deliberation can help keep the peace. On some occasions Congress has served as a kind of sheet anchor, restraining or even extinguishing the martial urge. In the isolationist 1930s, for example, Congress passed several neutrality statutes, aimed at keeping Franklin D. Roosevelt from intervening in the brewing international crisis that finally erupted as World War II. And on only five occasions has Congress formally declared war--each time in response to a presidential request: the War of 1812, the war against Mexico in 1846, the Spanish-American War in 1898 and World Wars I and II.

But Presidents have consistently dominated this long-running political contest--conspicuously including F.D.R., who eventually wore down isolationist sentiment and took the country into World War II. And while there have been only five formally declared wars, the U.S. has deployed its armed forces abroad more than 200 times, usually with some kind of congressional assent or at least acquiescence--from Thomas Jefferson's naval expedition against the Barbary pirates of North Africa to numerous interventions in Central America and the Caribbean, as well as Vietnam, Afghanistan and Iraq.

Vietnam marked a notable chapter in this vexed history. Reflecting widespread disillusionment with that failed war, the War Powers Act of 1973 sought to severely limit the President's capacity to send troops abroad without explicit authority from Congress. It passed into law only over Richard Nixon's veto. All subsequent Presidents have refused to recognize its constitutionality. It has not yet been subjected to a full constitutional test before the Supreme Court.

Congress continues to wield the power of the purse, but if history is any guide, the legislators will have little stomach for withholding resources from troops already in the field. Once again the President will have the upper hand. Despite the founders' best intentions, the world's oldest democracy still has a chronically deficient mechanism for bringing democratic practices meaningfully to bear on the waging of war.

Kennedy is a history professor at Stanford University and a 2000 Pulitzer prizewinner