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; . . .

Concerns that the national government lacked sufficient power to protect the United States’ national security was one of the primary reasons state assemblies called for the Constitutional Convention in Philadelphia in 1787.1

( “The need to . . . establish[] a strong national power to raise and maintain a military was one of the ‘recognized necessities’ for calling the Constitutional Convention.” ) (quoting ). As the delegates to the Convention worked out “an entire change in the first principles” of the Articles of Confederation,2 some elements of the governments’ new suite of war powers, such as the power to raise and support armies, were contentious and heavily debated.3 The Declare War Clause, on the other hand, was less controversial. The Articles of Confederation already gave the national government the “power of determining on peace and war,” 4 and the Constitution’s Framers did not question whether the new central government should continue to possess the authority to determine when the United States goes to war.5

Although the grant of the war-making power to the federal government was not contentious, debate did arise at the Constitutional Convention over how to phrase the relevant text and integrate this power in the new constitutional system. Prior to the Constitution, all of the national government’s powers under the Articles of Confederation were lodged in a single, unicameral body—the Confederation Congress.6 Because the Constitution divided the federal government’s power between three distinct branches, questions arose as to which branch of government should receive the Confederation Congress’s power to “determin[e]” war and peace.7

Early in the Constitutional Convention, the plan for a new form of government submitted by Edmund Randolph on behalf of Virginia became the focal point of debate.8 The “Virginia Plan,” as it would come to be known, did not address the power to initiate war directly. Instead, it provided that the Confederation Congress’s “Legislative [r]ights” would be given to a “National Legislature,” and the “Executive rights” that the Confederation Congress exercised would be transferred to a newly created “National Executive.” 9 Under the Virginia Plan, the executive would also possess “a general authority to execute the National laws.” 10

Several delegates expressed reservations about how war powers would fit into this division of authority. Charles Pinckney of South Carolina stated that, although he supported creating a vigorous chief executive, he feared the Virginia Plan might give the executive the Confederation Congress’s power over “peace [and] war.” 11 To Pinckney, such an assignment “would render the Executive a Monarch, of the worst kind . . . an elect[ed] one.” 12 John Rutledge, also from South Carolina, echoed these concerns, observing that, while he was “for vesting the Executive power in a single person,” he did not favor “giving him the power of war and peace.” 13 In early June 1787, the Convention debated whether the Confederation Congress’s powers over war and peace were legislative or executive in nature, but it did not reach a consensus.14

After William Paterson of New Jersey15 and Alexander Hamilton of New York16 presented alternative plans of government, a five-person Committee of Detail was formed to translate agreed-upon resolutions and the various proposals considered at the Convention into a draft constitution.17 The draft that emerged from the Committee of Detail would set the stage for a renewed debate on how to assign and structure the power over war and peace.18

Footnotes

1

See, e.g.,

Torres v. Tex. Dep’t of Pub. Safety,

597 U.S. 580, 591 (2022)

( “The need to . . . establish[] a strong national power to raise and maintain a military was one of the ‘recognized necessities’ for calling the Constitutional Convention.” ) (quoting

Selective Draft Law Cases,

245 U.S. 366, 381 (1918)

).

2

See

id

. (quoting The Federalist No. 23, at 148 (Alexander Hamilton)).

3

See and

4

Articles of Confederation of 1781, art. IX. See also .

5

See, e.g., The Federalist No. 41 (James Madison) (stating that the “[n]o man” could question whether the power to declare war is necessary, and it would be “superfluous therefore to enter into a proof of the affirmative” ); 3 Joseph Story, Commentaries on the Constitution of the United States § 1164 ( “That [the power to declare war] ought to exist in the national government, no one will deny, who believes, that it ought to have any powers whatsoever, either for offence or defence, for the common good, or for the common protection.” ).

6

See Articles of Confederation of 1781, art. V.

7

See 1 The Records of the Constitutional Convention of 1787, at 64–66, 70, 73–74 (Max Farrand ed., 1911) [hereinafter Farrand’s Records].

8

For background on the Constitutional Convention and the competing plans to organize the government, see .

9

1 Farrand’s Records, supra note 7, at 21.

10

Id.

11

Id. at 64–65. Earlier in the Convention, Charles Pickney had presented his own draft plan for the government, but the records of the Convention do not include debate of the Pickney plan other than to note that that it was eventually referred to the Committee of Detail. See 3 Farrand’s Records, supra note 7, at 595. The Pickney Plan would have vested all “executive [a]uthority” in a unitary president, but the plan did not directly address the power to initiate or declare war. 3 Farrand’s Records, supra note 7, at 606.

12

1 Farrand’s Records, supra note 7, at 65.

13

Id.

14

At least one delegate countered the Pinckney-Rutledge position, asserting that the power to determine war and peace was legislative rather than executive in nature, but there are inconsistencies in historical records in attributing statements during this debate. According to two sets of notes—one drafted by James Madison and the other by Pierce Butler—Pennsylvania delegate James Wilson expressed the view that the power over war and peace was legislative in nature. Id. at 65–66 (Madison’s notes) (recording Wilson as stating that he did not consider the prerogatives of the British Monarch the “proper guide in defining Executive powers” because some of the Crown’s prerogatives, including powers of war and peace, were “of a Legislative nature” ); id. at 73–74 (Butler’s notes) (recording Wilson as stating that “[m]aking peace and war are generally determined by Writers on the Laws of Nations to be legislative powers.” ). In the notes of Rufus King of New York, on the other hand, it was James Madison who argued that “executive powers . . . do not include the Rights of war [and] peace . . . .” Id. at 70.

15

Paterson’s plan, which would become known as the New Jersey Plan, would have carried over the Confederation Congress’s power to determine war and peace while creating a new plural executive with the power to “direct all military operations; provided that none of the persons composing the federal Executive shall on any occasion take command of any troops, so as personally to conduct any enterprise as General.” Id. at 244.

16

According to Madison’s notes, Hamilton presented a plan on June 18, 1787 that would have given the Senate the “sole power of declaring war.” Id. at 292 (Madison’s notes) (June 18). Robert Yates of New York recorded that Hamilton would have empowered the executive “to make war and peace, with the advice and consent of the senate . . . .” Id. at 300 (Yates’s notes). At the close of the Constitutional Convention, Hamilton prepared and sent to James Madison a document that Hamilton described as “delineat[ing] the Constitution which he would have wished to be proposed by the Convention . . . .” 3 Farrand’s Records, supra note 7, at 619. That later-prepared plan provided that the “Senate shall exclusively possess the power of declaring war.” Id. at 622.

17

See 2 Farrand’s Records, supra note 7, at 85–87, 117.

18

See .