Article I, Section 8, Clause 11:

[The Congress shall have Power . . . ] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; . . .

In addition to debating which branch of government should be empowered to bring the United States into war, the delegates to the Constitutional Convention considered which branch should have the power to end wars and make peace. The same day that the Constitutional Convention voted to grant Congress the power to “declare” rather than “make” war, the Convention held two additional votes on the Declare War Clause. Charles Pinckney of South Carolina moved to strike the Declare War Clause entirely, but his motion was rejected without a roll call of votes.1 Pierce Butler of South Carolina then moved to add “and peace” after “war” in an attempt to “give the Legislature power of peace, as they were to have that of war.” 2 Butler’s proposal would have brought the Declare War Clause more in line with the Articles of Confederation, which allocated the power to determine “peace and war” in the same clause.3

Alluding to the possibility that wars would be ended through treaties that were approved by the Senate but not considered in the House of Representatives, Elbridge Gerry seconded Butler’s motion.4 Gerry argued that the House should be included in peace-making because the Senate was more likely to succumb to foreign corruption than the full Congress, and a small number of Senators might cede part of United States territory in a peace treaty.5 The Constitutional Convention, however, unanimously rejected the motion to insert a peace-making power in the Declare War Clause.6

The Framers revisited the peace-making issue later in the Convention when James Madison put forward two proposals designed to make it easier to enter into treaties of peace.7 While this debate centered on Article II’s Treaty Clause,8 it also prompted a broader discussion of separation of powers over war and peace. For example, James Madison sought to remove the President from the process for making peace treaties because Madison believed the President “would necessarily derive so much power and importance from a state of war that he might be tempted . . . to impede a treaty of peace.” 9 Pierce Butler agreed and argued that removing the President from the peace-making process would guard against corruption and excessive ambition in the presidency.10

Nathaniel Gorham of Massachusetts, by contrast, believed it unnecessary to exclude the President from the process for making peace treaties because Congress already controlled the power of the purse, and therefore the “means of carrying on war would not be in the hands of the President, but of the Legislature.” 11 Gouverneur Morris, a Pennsylvania delegate, also alluded to the possibility that Congress might end wars by withholding appropriations, but he described this prospect as a more “disagreeable mode” of concluding conflicts compared to peace treaties.12 Ultimately, neither of Madison’s proposals to alter the process for concluding peace treaties was successful,13 and the Framers did not allocate an express peace-making power.

The absence of a peace-making clause has led to some debate over the proper constitutional method for terminating armed conflicts.14 Some argue that the Framers believed wars could only be concluded through peace treaties,15 but the Supreme Court stated in dictum in a 1948 case that a “‘state of war’ may be terminated by treaty or legislation or Presidential proclamation.” 16 The Supreme Court has also reasoned that termination of a military conflict is a “political act,” 17 and it historically has declined to exercise judicial review of the political branches’ determinations of when a conflict has official ended.18

Footnotes

1

2 The Records of the Constitutional Convention of 1787, at 319 (Max Farrand ed., 1911) [hereinafter Farrand’s Records].

2

Id.

3

Articles of Confederation of 1781, art. IX ( “The united states, in congress assembled, shall have the sole and exclusive right and power of determining on peace and war . . . .” ). See also .

4

2 Farrand’s Records, supra note 7, at 319.

5

Id.

6

See id. at 313–14, 319.

7

Id. at 533–55. Madison first proposed exempting peace treaties from the requirement that a super-majority of two-thirds of Senators provide their advice and consent—meaning that only a majority of Senators’ approval would be necessary for peace treaties. Id. at 533, 540. He also put forward an alternative proposal in which the Senate alone, through a two-thirds super-majority vote, could conclude treaties of peace without presidential involvement. Id. at 533, 540.

8

For background on the Treaty Clause, see and subsequent essays.

9

2 Farrand’s Records, supra note 7, at 540.

10

Id. at 540–41. Butler warned the Convention of recent European figures who sought to prolong wars for their own benefit. Id. at 541 ( “He mentioned the late perfidious policy of the Statholder in Holland; and the artifices of the Duke of Marlbro[ough] to prolong the war of which he had the management.” ).

11

Id. at 540. See also Avery C. Rasmussen & Saikrishna Bangalore Prakash, The Peace Powers: How to End a War, 170 U. Pa. L. Rev. 717, 734 (2022) (interpreting Gorham’s statement as a reference to the power of the purse).

12

2 Farrand’s Records, supra note 7, at 548.

13

Id.at 544–46, 549–50.

14

Compare, e.g., John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Calif. L. Rev. 167, 265 (1996) (arguing that the Framers believed only a peace treaty signed by the President and approved by two-thirds of the Senate could formally terminate a war), and Clarence A. Berdahl, War Powers of the Executive in the United States 231 (1921) (contended that “a formal treaty of peace is the only method contemplated by the Constitution for the termination of a foreign war” ), with Rasmussen & Prakash, supra note 11, at 717 (contending that the Constitution permits multiple pathways to peace, including treaties, armistices declared by the President, congressional defunding, and legislative termination).

15

See Yoo, supra note 14, at 265, Berdahl, supra note 14, at 231. See also Ware v. Hylton, 3 U.S. (3 Dall.) 199, 236 (1796) (opinion of Chase, J.) ( “A war between two nations can only be concluded by treaty.” ).

16

Ludecke v. Watkins, 335 U.S. 160, 168 (1948). But see Lee v. Madigan, 358 U.S. 228, 230 (1959) (distinguishing Ludecke’s “generalized statements” about termination of war and concluding that an offense committed in 1949 was perpetrated “in time of peace” even though the President did not formally proclaim peace with Japan until 1952).

17

Ludecke v. Watkins, 335 U.S. 160, 169 (1947).

18

See Baker v. Carr, 369 U.S. 186, 213 (1962).