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02/09/2018

Matthew Waxman: What's So Great About the Declare War Clause?
Michael Ramsey

Matthew C. Waxman (Columbia Law School) has posted What's So Great About the Declare War Clause? on SSRN.  Here is the abstract: 

I have long believed two things about constitutional war powers, which my reading of Noah Feldman’s “The Three Lives of James Madison” largely confirmed. First, James Madison was brilliant and prescient about many things, but the strategy and politics of war were not among them. Second, modern constitutional critics of an imperial presidency place too much weight on the declare war clause — and especially Madison’s statements about it. Madison, indeed, worried deeply about unchecked presidential war powers. But Feldman’s book shows that Madison did not emphasize the same risks and checks so often ascribed to him today, especially by congressionalists who invoke Madison’s statements about war-initiation.

And from the core of the discussion:

Far more than the declare war clause, Feldman’s account of Madison’s thinking and influence focuses on Congress’s other powers over military resources as well as the Militia Clauses. Madison and many fellow Republicans saw peacetime demobilization of military forces—much of them remaining in the form of local, part-time citizen-soldiers organized primarily at the state level—as the more significant check on war-making. Today we are used to thinking about congressional control over military purse-strings as, if anything, mostly a back-end check, or a tool that Congress might try to wield to terminate military adventures. Madison saw it as a front-end check, too, denying the president much actual military power without Congress’s considered support.

That is, rather than seeing the declare war clause as the key brake on aggressive or unnecessary presidential war-making, Madison saw it as one among layers of checks. At least as important, and probably more important, were structural checks on the very instrument of war-making: namely, an army.

Madison did not expect Congress to raise and support much of an army in peacetime. He and fellow Republicans expected state-level militias to provide much of the defense forces necessary to supplement a small national force. And militias were—in both practical and legal senses—necessarily defense forces: In accordance with ancient British tradition, the militia clauses restricted their national role to executing law, suppression insurrections, and repelling invasions. Madison never went as far as some Republicans who wanted the Constitution to forbid a peacetime standing army altogether (see his debate with fellow Virginian Patrick Henry at page 235 of Feldman’s book). But the Army clause contains a two-year appropriation rule to make sure that, even if an army was created and the president was provided by Congress—or assumed authority—to use it, funding for those troops would run out quickly if Congress did not replenish it.

(Also posted as a book review on Lawfare).

Noah Feldman's book is The Three Lives of James Madison: Genius, Partisan, President (Random House 2017), Amazon page here.