Declaring War – Constitution Article 1 §8.11

Article 1 §8.11 of the Constitution is about Congress’ power to, among other things, declare war. That’s kind of a big deal.

Democracy is a big deal. That’s why I’m studying the Constitution, one clause at a time. I’m up to Article 1 §8.11.

Article 1 §8.11

Congress shall have the power

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Power to Declare War

A quick thought experiment shows that allowing states to wage war individually is impractical. Of course war must be a federal power, but it still has to be spelled out in the Constitution to answer the question of which branch of federal government will manage it. That question is interesting and thorny; we are still worrying the edges of existing definitions.

The framers liked to divide tasks among the branches, and that shared authority makes even more sense when it comes to something like starting a war. According to the Annotated Constitution (starting around p. 345), the conflicting concerns were not trusting human lives to the decision of a single individual and not giving up the advantages of executive efficiency. At first, the general idea seemed to be that Congress could declare war, but the President, would be empowered to repel attacks without awaiting congressional approval. Many of the framers were veterans themselves, so they didn’t seem to have much of an issue with the President being in charge of the actual waging of war – nobody wanted that done by committee.

History of War Powers

The history of war powers has a – perhaps troubling – trend toward presidential power. Although it is commonly called the Barbary War, Jefferson was very careful in maintaining a strictly defensive action when no war had been declared. Lincoln’s blockade of Southern ports when Congress was not in session was a necessary response to a de facto state of war, and Congress subsequently ratified his decision.

From the Library of Congress:

Over time, questions arose as to the extent of the President’s authority to deploy U.S. armed forces into hostile situations abroad without a declaration of war or some other form of Congressional approval. Congress passed the War Powers Resolution in the aftermath of the Vietnam War to address these concerns and provide a set of procedures for both the President and Congress to follow in situations where the introduction of U.S. forces abroad could lead to their involvement in armed conflict.

Passed over presidential veto in 1973, the War Powers Resolution is actually a law. It requires the President to exercise powers as Commander in Chief only pursuant to a declaration of war, specific statutory authorization from Congress, or a national emergency created by an attack upon the United States (per framers’ intent). Nevertheless, six presidents have been sued by Congress for overstepping Executive authority under the Resolution. None of the lawsuits were successful.

The last time Congress declared war was against Bulgaria, Hungary and Rumania in 1942. They did not declare war in Korea, Vietnam, Iraq, or Afghanistan. Yet it would be impossible to describe the activities of the U.S. military during the last 16 years as anything other than war. I find that distressing, although this article from the Constitution Center takes a different view, pointing out that a declaration of war gives the president additional domestic powers while “authorization for the use of force” does not.

Letters of Marque and Reprisal

The Annotated Constitution says nothing about this phrase, which I had to look up on Wikipedia:

 In the Age of Sail, a letter of marque and reprisal, or, simply a letter of marque … was a government license that authorized a person, known as a privateer or corsair, to attack and capture enemy vessels.… A letter of marque and reprisal … was authorized by an issuing jurisdiction to conduct reprisal operations outside its borders.

The last time the U.S. commissioned privateers was during the War of 1812, although in typical fashion, we never signed on to the 1856 Paris Declaration forbidding the practice. Although it’s generally considered an archaic clause, the idea of using letters of marque again has been raised as a possibility in the war against terrorism. Because reviving legitimized piracy in defiance of international law is a great way to win friends and influence people. I can’t even.

Rules Concerning Captures

Neither Schmoop or the Annotated Constitution has anything to say about the Captures Clause, but I did find this really long article that looks at it in detail. TLDR; It’s about the spoils of war. This was probably a bigger deal in the eighteenth century than it is nowadays. Unless it applies to the way many police forces are funded by the contraband confiscated in the war on drugs. It’s probably good that the clause is both arcane and archaic, because nobody seems to be sure what it means.

via GIPHY

A Clause Mystery

When I first started this project, I thought that the correct way to reference the Constitution was:

Article 1 §8.11

Where Article 1 referred to the seven numbered articles; §8 referred to the numbered sections within each article, and; .11 referred to the numbered paragraphs in each section, which I thought were called clauses. But recently I’ve noticed phrases within these numbered sections called “clauses” in references. For example, within what I thought was Clause 11, I’ve seen references to the Declare War Clause, the Marque and Reprisal Clause, and the Captures Clause.

I’m not sure what the correct nomenclature is. Should the numbered bits I’ve been calling clauses be  “Paragraphs,” and the several topics in each paragraph be “Clauses?” Or have I been doing it right and just found some weird references? Until I find a definitive (no pun intended) answer, I’ll stick with the ambiguity of using “clause” in both cases. If you have an opinion or a reliable source, please share in the comments.