What the Constitution Means by Declare War

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Legal Studies Research Paper Series

Research Paper No. 07-94

April 2007

UNLEASHING THE DOGS OF WAR:WHAT THE CONSTITUTION MEANS BY

DECLARE WAR

Saikrishna Prakash

This paper can be downloaded without charge from the

Social Science Research Network Electronic Paper Collection:

http://ssrn.com/abstract=977244


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Unleashing the Dogs of War: What the Constitution Means by

Declare War

Saikrishna Prakash

Though a good deal of war powers scholarship makes claims about the

original meaning of declare war, these works do not consider a host of

sources pertinent to the inquiry. This Article considers these materials

and sheds new light on two questions. Does Congresss power to

declare war encompass the authority to decide whether the nation will

wage war? Relatedly, does Congresss power to decide whether the

country will wage war extend to those situations where another nation

already has declared war on the United States? This Article answers

both questions in the affirmative. In the eighteenth century the power

to declare war was a power to decide whether a nation would wage war.

Materials from that era reveal that any decision to wage war, however

expressed, was a declaration of war. The commencement of warfare was

regarded as the surest declaration of war. Because the Constitution

grants Congress the power to declare war, only Congress can determine

whether the nation will start a war or enter a war against a nation that

already has declared war against the United States. Necessarily, the

President cannot unilaterally choose to wage war against another

nation, even when that nation has already declared war.

Herzog Research Professor of Law, University of San Diego. Yale Law School, J.D., Stanford

University, B.A. Thanks to Larry Alexander, Will Baude, Curtis Bradley, Walt Heiser, Paul Horton, Scott

Mason, Matthew McCubbins, David McGowan, Jide Nzelibe, Mike Ramsey, Mike Rappaport, Steve Smith,

John Yoo and participants in a University of San Diego faculty workshop for helpful comments and

criticisms. Thanks to the University of San Diego for summer research funds that made this paper possible.

Finally, thanks to Ana Arboleda, Carolina Bravo-Karimi, and Scott Masonfor research assistance.


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Declare War

Introduction ...........................................................................................................................1I. Text, Structure, and the Categorical Theory of Declare War ................................4

A. Declaring War as a Decision to Wage War ......................................................5B. Constitutional Text...........................................................................................6C. Constitutional Structure.................................................................................10

1. A Unitary War Power ............................................................................ 112. Difficulties with the Formalist Reading.................................................123. Difficulties with the Pragmatic Reading................................................14

II. The Initiation Declaration of War...........................................................................17A. European Usage..............................................................................................17B. American Usage .............................................................................................. 24

1. Early American Understandings............................................................252. American Treaties..................................................................................273. The Constitutions Creation .................................................................304. The Constitution in the New Republic.................................................35

III. The Response Declaration of War...........................................................................39A. Text, History, and Response Declarations......................................................39

1. European Understandings.....................................................................402. American Understandings.....................................................................41

B. Arguments against the Idea of Response Declarations...................................48IV. Some Consequences of the Original Meaning of Declare War ...........................52

A. Implications of the Categorical Reading of Declare War ...........................52B. Difficulties Associated with the Categorical Reading.....................................54C. Is the Constitutions Mechanism for Going to War Outdated?.....................57

Conclusion ...........................................................................................................................58


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Declare War

Introduction

Writing to James Madison in 1789, Thomas Jefferson extolled the Constitution

for providing one effectual check to the Dog of war, by transferring the power of

letting him loose from the executive to the Legislative body.1 Evidently, Jefferson had

concluded that the Constitutions grant of power to declare war2 meant that

Congress, and not the President, would decide when the nation would fight a war.

One set of scholars argues that Jefferson was spectacularly mistaken in his

reading of declare war.3 These academics believe that as a matter of original meaning

the President, as Commander in Chief of the armed forces, 4certainly could commit thenation to war. He had merely to order the army to march on another nation or the

navy to engage another nations ships and the war dog was fully unchained. On this

view, the congressional power to declare war posed no barrier to the President starting

a war. It was no more than a power to issue formal declarations of war, a power that

enabled Congress to decide whether wartime statutes should come into play. So while

the President can take the nation to war, only Congress can decide that certain wartime

powers and limitations will apply. This formalist view of the declare war power

supposes that declarations of war were formal documents of marginal significance.

Other scholars regard Jefferson as only somewhat mistaken.5 They believe that

only Congress can take the nation from a state of peace into a state of war. Hence,

consistent with the grant of declare war power to Congress, the President cannot

order the Air Force to launch a first strike on Pyongyang. The very act of bombing the

North Korean capital would itself be a declaration of war, something the Constitution

commits to Congress. Bombing would be a declaration of war no less than if the

President had uttered the words I declare war on North Korea. Nevertheless, if North

1Letter from Thomas Jefferson to James Madison (Sept 6, 1789), in 15 THE PAPERS OF THOMAS

JEFFERSON392, 397 (Julian P. Boyd, ed, 1958).2U.S. CONST. art. I, 8, cl. 11 (The Congress shall have power . . . [t]o declare War . . . .).

3See, e.g., JOHN C.YOO,THE POWERS OFWAR AND PEACE: THE CONSTITUTION AND FOREIGNAFFAIRS AFTER 9/11 (2005); John Yoo, The Continuation of Politics by Other Means: The Original

Understanding of War Powers, 83 CAL. L. REV. 167, 246-47 (1996);ROBERT F.TURNER,REPEALING THE

WAR POWERS RESOLUTION:RESTORING THE RULE OF LAW IN U.S.FOREIGN POLICY(1991); Eugene V.

Rostow, Great Cases Make Bad Law: The War Powers Act, 50 TEX.L.REV. 833 (1972); Henry P. Monaghan,

Presidential War-Making, 50 BU L. REV. 19 (1970).4SeeU.S. CONST. art. II, 2 (The President shall be commander in chief of the Army and Navy of

the United States, and of the militia of the several states, when called into the actual service of the United

States).5Seee.g., Michael D. Ramsey, Textualism and War Powers, 69 U. CHI. L. REV. 1543 (2002).


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2007 Unleashing the Dogs of War 2

Korea declared war against the United States first, the President could order the

bombing of any and all North Korean cities without any congressional declaration of

war. He can order a blockade, a ground invasion, even a nuclear strike. Why? Because

North Korea, through its words and deeds, has thrust the United States into an

involuntary, but unavoidable war. This pragmatic theory supposes that the declarewar power is superfluous when one nation has declared war on another because in that

context the victim need not issue a response declaration of war.6

On the meaning of declare war, Thomas Jefferson was not mistaken. Using

hitherto untapped eighteenth century materials, this Article answers two questions

relating to the original meaning of declare war. First, did the power to declare war

extend beyond the ability to issue formal declarations of war and include the authority

to determine whether a nation would wage a war? Second, did the declare war power

specifically include the authority to decide whether a nation would wage war even in

those situations where another nation already had declared war?7

This Article answers both questions in the affirmative. While the ability to issue

formal declarations of war was part of the declare war power, that power clearly

extended beyond the mere issuance of formal declarations. Any decision to wage war,

however expressed, was regarded as a declaration of war. Contrary to what some might

imagine, there were no prescribed words or phrases that had to be uttered in order to

declare war. Many words and actions looking nothing like a formal declaration of war

were declarations of war nonetheless. Indeed, it was far more common for nations in

the eighteenth century to informally declare war. The most obvious informal

declaration of war was the commencement of warfare itself. As John Adams wrote

during the American Revolution, the war between England and France had been

6Some scholars insist that only Congress can decide that the nation will wage war, but do not focus

on the situation when another nation has declared war on the United States. See, e.g., HAROLD HONGJU

KOH,THE NATIONAL SECURITY CONSTITUTION:SHARING POWER AFTER THE IRAN-CONTRAAFFAIR74-

77 (1990); MICHAELJ.GLENNON,CONSTITUTIONAL DIPLOMACY80-84 (1990); W. TAYLOR REVELEY,III,

WAR POWERS OF THE PRESIDENT AND CONGRESS:WHO HOLDS THEARROWS AND OLIVE BRANCH? 55-

115 (1981); William Michael Treanor, Fame, the Founding, and the Power to Declare War, 82 CORNELLL.

REV. 695, 740-56 (1997); Raoul Berger, War-Making by the President, 121 U. PA. L. REV. 29, 39-47 (1972);

Charles A. Lofgren, War-Making under the Constitution: The Original Understanding, 81 YALE L.J. 672, 677-

88 (1972).Other scholars have argued that Congress must make all decisions relating to whether the nation

will wage war. SeeLOUIS FISHER,PRESIDENTIALWAR POWER 3-12 (1995); JOHN HART ELY,WAR AND

RESPONSIBILITY:CONSTITUTIONAL LESSONS OFVIETNAM AND ITSAFTERMATH3-8 (1993); FRANCIS D.

WORMUTH AND EDWIN B.FIRMAGE,TO CHAIN THE DOG OFWAR:THEWAR POWER OF CONGRESS IN

HISTORY AND LAW73-74 (1986);7A companion essay discusses other questions related to declarations of war. In particular, it

considers all the functions a declaration of war played in the 18thcentury, what Congress must do to

declare war, and whether proposed declarations of war are subject to the Presentment Clause. See

Saikrishna Prakash, Declarations of War: A Guide for the Perplexed(on file with author).


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3 Unleashing the Dogs of War [Vol. ___:___

sufficiently declared by actual hostilities in most parts of the world. 8 A little later, a

Frenchmen observed that hostilities are commonly considered the strongest

declarations of war.9 As we shall see, a host of other hostile actions short of a general

war were also declarations of war. For instance, making a treaty of alliance with one

nation at war was a declaration of war against that nations enemies.

Moreover, because the declare war power included the ability to decide whether

to wage war, the declare war power extended to those situations when one nation

already had declared war. For instance, someone with the power to declare war on

behalf of England could decide whether to war against a nation that had declared war

against England. Accordingly, someone with the declare war power could decide when

and under what circumstances a nation would wage a war.

This categorical theory of declarations regards the power to declare war as the

power to control all decisions to enter into a war. The declare war power includes the

power to start a warto issue initiation declarations (declarations that start a war).That power also includes the power to join a war already launchedto issue response

declarations (declarations issued in response to another nations initiation declaration).

And finally the declare war power encompasses the ability to decide what level of

hostilities a nation will bring to bear in a war. Sometimes a limited naval or land war

will be declared and other times an all out, no-holds barred general war.

In the context of the Constitution, the grant of declare war power means that

only Congress can decide whether the United States will wage war. The President

cannot make this crucial decision because he lacks the power to declare war,.

Accordingly, the President cannot unilaterally order a military strike on Teheran for

such a strike would be a declaration of war and would thereby usurp congressional

power. Moreover, even if Iran declared war on the United States first, the President

could not wage war against Iran merely because it already had declared war. The

decision whether to go to war still rests with Congress. Congress may authorize a

general warland, sea, and airagainst an enemy. Congress may authorize only limited

offensive measures, such as a sea war only. Or Congress may urge the Executive to

negotiate a settlement, leaving the Executive to pursue defensive measures coupled with

some form of negotiations. Under the original Constitution, the decision to wage war

and the type of war to be fought always rested with Congress.

Part I of the Article considers constitutional text and structure. Part II, usingseventeenth and eighteenth century historical materials, argues that the power to declare

war included the power to issue initiation declarations. Drawing upon the same

reservoir of materials, Part III contends that the power to declare war included the

8Letter from John Adams to Samuel Adams (February 14, 1779) in 3 THEREVOLUTIONARY

DIPLOMATICCORRESPONDENCEOF THE UNITEDSTATES47, 48 (1889).91 JACQUES NECKER,ANESSAYON THETRUEPRINCIPLESOF THEEXECUTIVEPOWERINGREAT

STATES273 (1792).


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authority to decide whether and how to wage war in response to another nations

declaration of war, i.e., included the power to issue response declarations. Part IV

considers some implications of the original meaning of declare war.10

There are good reasons for reconsidering the meaning of declare war. One setof reasons can be found in the Article itself. Rather than merely relying upon familiar

originalist sources, the Article unearths the original meaning of declare war by tapping

many new sources. First, it examines actual declarations of war issued in the eighteenth

century. Second, it considers what Europeans said about declaring warnot just those

writers devoted to international law, but monarchs, legislators, ministers, and historians

of the era. Third, it takes into account American treaties which contained provisions

that turned on the existence of a declaration of war. Fourth, the Article recounts

diplomatic letters written during Americas war of Independence. Finally, the Article

considers letters and documents from early administrations in which executive officers

endorsed the understanding of declare war advanced here.

The other reason for reconsidering the meaning of declare war is that the

Constitutions allocation of war powers is not some dry academic dispute. The Bush

Administration maintains that the Constitution authorizes the President to start a

war.11 Although the Administration secured congressional approval for the Afghani

and Iraqi wars, it may yet wage war on another nation without first securing

congressional approval. Indeed, Washington buzzes with speculation about whether the

President will order a military strike on Iran. One reason for such a strike might be the

alleged Iranian assistance to militias in Iraq, assistance that could be seen as an informal

Iranian declaration of war against the United States. Any attack on Iran would trigger a

firestorm precisely because scholars and politicians disagree about what it means to

declare war. Thus what the Constitution means by that phrase remains one of the

most vital and contentious questions of the day.

I. Text, Structure, and the Categorical Theory of Declare War

10Some caveats are in order. The Article never argues that the original Constitution (and its

meanings) ought to apply today. Instead, this Article makes claims about the late eighteenth century

meaning of declare war and merely assumes that this meaning should continue to apply today. Giventhe central role that originalist arguments have played in war powers scholarship, the peculiar relevance of

originalist claims in this area is perhaps obvious. Moreover, the Article does not discuss whether various

American wars were properly declared. That would require an examination of the events leading up to

various wars, an inquiry well outside this Articles scope. Finally, the Article does not address whether

there should be judicial review of whether the President has unconstitutionally declared war.11See, e.g.,The Presidents Constitutional Authority to Conduct Military Operations Against

Terrorist and Nations Supporting Them found at http://www.usdoj.gov/olc/warpowers925.htm

(concluding that because [d]eclaring war is not tantamount to making war the President may wage war

notwithstanding the Constitutions grant of declare war authority to Congress).


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While the Articles ultimate objective is to establish what declare war and

declaration of war meant in the late eighteenth century that is not the aim here. This

Part has more modest objectives: 1) to introduce the idea that the power to declare war

encompassed the ability to decide to wage war; 2) to establish that nothing in the

Constitution precludes such a meaning; and 3) to argue that as a matter ofconstitutional structure, adopting the formalist or the pragmatic readings of declare

war leads to incongruous allocations of war powers.

A. Declaring War as a Decision to Wage WarAs everyone supposes, in the eighteenth century someone with the power to

declare war could issue declarations of war. Although declarations of war could serve

many related functions, the principal function of a declaration was that it announced

that a nation had chosen to wage war in order to resolve its differences with another

nation. Declarations would serve to notify the enemy, ones own nationals, and the rest

of the world that one nation had decided to wage war on another.

In ancient times, these declarations would be made by heralds sent to the

enemy. Later declarations were written and delivered to the enemy prior to the

beginning of hostilities. By the eighteenth century, however, nations had almost wholly

abandoned the practice of giving warning of impending warfare and the practice of

issuing formal declarations waned. Yet declarations of war continued to be associated

with the onset of war. In that context, it became common to regard anything that

signaled that a nation had decided to wage war as a declaration of war.

These signals that a nation had declared war could be formal or informal.

Formal declarations usually would contain a statement like we declare war on France

or we declare that a state of war exists with Holland. Such formal declarations are

quite familiar even today. Indeed, if such words are not uttered or written in a war, we

are likely to regard the war as an undeclared war.

But that is not the way people in the eighteenth century understood declare

war. While one could say that wars without formal declarations were undeclared wars,

one could equally say that the commencement of warfare always began with some

declaration of war, be it formal or informal. In other words, even if there was no formal

declaration (as there often was not), parties to a war necessarily had informally declared

war by their words or actions. Because the decision to wage war was itself a declarationof war, the nations at war had declared war in the very act of going to war.

There were two categories of informal declarations. The first was written or oral

informal declarations. However official and weighty these documents or speeches were,

they did not formally proclaim that one nation was declaring war. Nonetheless, these

informal declarations made it clear that one nation had decided to fight a war. Thus,

an assembly speech bristling with belligerence could serve as a declaration, as could a


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written defense of why one nation would fight another. Likewise, an appropriation for

the expenses of conducting a war against another nation was a declaration of war

because it signaled a decision to wage war.

The second category of informal declarations consisted of declaring war viasome hostile act. An authorized invasion on another nation, even if never preceded or

followed by any formal declaration, was a declaration of war. If France invaded

Holland, that was the French declaration of war against Holland. An invasion was a

declaration of war because it rather unmistakably revealed a resolve to wage war.

Less belligerent acts also qualified as declarations. Ambassadorial dismissals and

embargoes might serve as informal declarations. At the extreme, preparing for ware.g.,

massing troops and material on the borderwas an informal declaration of war. All

these hostile actions were declarations because they, no less than a formal declaration,

signaled that a nation had chosen to wage war to settle its differences.

Another dimension of declarations of war was the decision of what types of

hostile actions to orders. Formal declarations could command a nations land and

naval forces to attack the enemy. They also might authorize private parties to take the

enemys naval vessels. They might even try to confine the war to certain geographical

regions. Those with the declare war power were authorized to make these decisions.

B. Constitutional TextThis broad understanding of declare war hardly emerges from the

constitutional text. The Constitution merely grants Congress the power to declare

war, with little hint of what that means. All that can be said at this point is that

nothing in the Constitution rules out the claims made above. Hence, if the prologue

above accurately described the principal function of declarations of war in the late

eighteenth century, then Congress has the power to decide whether the nation will wage

war. Necessarily, Congress also has the power to decide not to declare war and hence

may decide that the nation will not wage war.

Of course, the Constitution mentions numerous wartime authorities and

restrictions elsewhere. How do these other textual pieces fit together? There are

congressional, executive, and federalism pieces. None of them poses any problems for

the idea that to declare war was to decide to go to war. Consider other grants ofauthority to Congress. The power to grant letters of marque and reprisal12 permits

Congress to grant private parties the right to seize and profit from enemy shipping.

When a nation concludes that another has injured it, granting letters of marque and

reprisal to select individuals can be a measured means of seeking recompensemore

12U.S. CONST. art. I, 8, cl. 11 (To declare war, grant letters of marque and reprisal, and make

rules concerning captures on land and water).


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harsh than negotiations but less extreme than a full-scale war.13 In the absence of this

separate grant, Congress likely would have had this power as part of its authority to

declare war.14 The same might be said of Congresss power to regulate captures15it too

might have been considered part of the power to declare war. Finally, the power to

regulate the armed forces

16

may have been necessary because the power to declare war,by itself, would not necessarily have implied a power to regulate the armed forces,

especially in a Constitution that establishes an independent Commander-in-Chief.17

Through its power of the purse,18 Congress may check the Commander-in-

Chiefs conduct of a war. The Constitution prohibits army appropriations lasting more

than two years19a means of ensuring that Congress retains firm control of the armys

finances. Because the army requires a new appropriation every two years, Congress can

defund and thus disable the army by failing to pass a new appropriation. As everyone

recognizes, the failure to pass an army appropriation would effectively preclude the army

from fighting a war. In a similar way, Congress might withhold funds from all the

branches of the armed forces and thereby bring the prosecution of a war to a halt.20

The ability to defund the armed forces and thereby check the executives

conduct of a war does not cast doubt on the broad definition of declare war. 21 The

Congresss ability to declare war and its separate ability to control funding once declared

13Of course, a nation might both declare war and issue letters of marque and reprisal, in which case

the letters would not be a step towards a full-scale war but would be part of a strategy of total war. For an

excellent treatment of the meaning of marque and reprisal authority, seeRamsey, supranote 5, at 1613-19.14See2 JOSEPHSTORY, COMMENTARIESON THE CONSTITUTION94 (1891) (saying as much).

Blackstone also noted that the power to issue letters of marque and reprisal is nearly related to, and

plainly derived from, that other of making war. 1 WILLIAM BLACKSTONE, COMMENTARIES ON THELAWS OF ENGLAND*250. The decision to separately vest the power to issue letters of marque and

reprisal likely resulted from an abundance of cautionex abundati cautela. The separate listing made it

crystal clear that the Executive did not enjoy the power to issue letters of marque and reprisal and that

Congress would enjoy it. In much the same way, grants of specific executive powers in Article II can be

seen as already included in the grant of executive power. Arguably, they were listed out of an abundance

of caution. For a discussion of this principle as it applies to Article II, see Steven G. Calabresi &

Saikrishna Prakash,The President's Power to Execute the Laws,104 YALE L.J. 541, 577 (1994).15SeeU.S. CONST. art. I, 8, cl. 11 (To declare war, grant letters of marque and reprisal, and make

rules concerning captures on land and water).16U.S. CONST. Art. I, 8, cl. 14 (To make rules for the government and regulation of the land and

naval forces).17SeeU.S. CONST. art. II, 2 (The President shall be commander in chief of the Army and Navy of

the United States, and of the militia of the several states, when called into the actual service of the UnitedStates).

18For a discussion of how the power of the purse arises from the Necessary and Proper Clause, see

Kate Stith, Congress' Power of the Purse, 97 YALE L.J. 1343, 1348-50 (1988).19SeeU.S. CONST. art. I, 8, cl. 11 (To raise and support armies, but no appropriation of money

to that use shall be for a longer term than two years) (emphasis added).20For a longer discussion of this vital principle of congressional control and the role it played in

ratification, seeYoo, CONTINUATIONOFPOLITICSBYOTHERMEANS, supranote 3, at 279-88.21Butseeid. 174 (arguing that impeachment and spending are the exclusive congressional checks on

executive war making).


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gives it two distinct means of controlling the use of military force. The Constitutions

belt and suspenders approach is designed to ensure that wars are commenced and

conducted with some measure of public support. Once declared, a war might not go as

planned and the nation may benefit if Congress can end a war it originally authorized.

In sum, none of the grants of other war-related authority to Congress casts

doubt on the broad meaning of declare war advanced earlier. That the Constitution

makes express certain principles that arguably would have been implicit in the grant of

declare war authority is hardly odd or unique. It merely replicates a pattern found

elsewhere in the Constitution, particularly the relationship between the vesting clause of

Article II and the rest of Article II. As James Madison said, albeit in a different context,

[n]othing is more natural nor common than first to use a general phrase, and then to

explain and qualify it by a recital of particulars. 22 The reader of Article I, section 8,

clause 11 will note that the declare war power is followed by the grants of power over

marque and reprisal and captures, precisely the structure that Madison described.

What of the President? When the Constitution expressly grants Congress some

authority, the strong presumption is that no one else in the government can exercise the

same authority. Indeed, everyone agrees that the President cannot declare war. The

key is what words and actions are encompassed within that implied prohibition. If one

accepts the definition of declare war advanced above, the President cannot take

actions that serve as a declaration of war. Accordingly the President cannot commence

warfare or engage in other patently hostile actions that declare war. Were the President

to take such actions unilaterally, he would be assuming Congresss power to declare war.

Nonetheless, the President retains significant military authority.. The

Commander-in-Chief Clause23that grants him his famous title serves several purposes,

none of which conflicts with the categorical theory about the meaning of declare war.

The Clause makes clear that Congress does not have the authority to choose a

commander-in-chief on its own.24 More substantively, it enables the President to

control the nations armed forces in times of war and peace, subject of course to

Congresss constitutional authorities. The Clause also makes plain that the President

may command the militia when the latter is called into federal service for purpose of law

execution and the suppression of rebellions.25

22THE FEDERALIST NO. 41, at 263 (James Madison) (Clinton Rossiter ed., 1961).23SeeU.S. CONST. art. II, 2 (The President shall be commander in chief of the Army and Navy of

the United States, and of the militia of the several states, when called into the actual service of the United

States).24Interestingly, the President would have a formidable claim to Commander-in-Chief authority even

in the absence of the express authority. The grant of executive power arguably included Commander-in-

Chief authority. The Commander-in-Chief Clause may have been added out of an abundance of caution.25Congress may provide for calling forth the militia to execute the laws of the union, suppress

insurrections and repel invasions. U.S. CONST. art. I, 8, cl. 15.


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Of more significance, the President might order acts of self-defense, even very

destructive acts. The President does not declare war against potential aggressors when

he instructs the armed forces to defend the nations borders against an armed invasion.

Should an enemy ever send landing craft to our shores, the Presidents decision to repel

the invaders with the use of lethal force does not encroach on congressionalprerogatives because the President has not thereby declared war. He has not chosen to

commit the nation to a war. Likewise, the President does not declare war when he

instructs forces overseas to act in self-defense. A ship fired upon may act to destroy the

attacking ship or plane without thereby declaring war. Finally, the President does not

declare war when he instructs troops to evacuate U.S. nationals from a foreign country.

The difference between these actions and an unauthorized presidential

declaration of war reflects the distinction between acting in self-defense and acting in an

offensive way. Acting to disarm an actual aggressor is perfectly permissible. The

decision to preemptively wage war, however, is clearly forbidden to the President. In

between are difficult line drawing questions about what military measures the Presidentmay order without having the resulting conduct of the armed forces rise to the level of a

declaration of war. Admittedly, this distinction between actions that amount to an

informal declaration of war and actions that do not will sometimes be hard to apply in

concrete situations.26 Nonetheless, it is a distinction found in the Constitution itself.

Even though Congress has the power to declare war, it does not have the distinct power

to control all uses of military force.27 Likewise, while the President may use military

force, he may not go so far as informally declaring war via his orders to use force.

Finally, we come to the other instances in which the Constitution mentions war.

Article I, section 9 provides that states cannot engage in war unless certain exceptions

apply or unless Congress consents. John Yoo has argued that the Constitution would

have parallled this language in Article I had declare war included the decision to wage

war.28 The Constitution might have provided that absent a congressional declaration of

war, the United States could not engage in war. That the Constitution did not so

provide suggests that the categorical theory of declare war is mistaken, or so the

argument goes.

By granting Congress the power to declare war and not granting anyone else a

concurrent power, the Constitution doesprovide that the United States may not engage

in war without a congressional declaration, for the very act of engaging in war was

understood as an informal declaration of war. That is what the evidence in Parts II andIII will show. That the Constitution might have used other language that would have

been clearer to some is obvious. But this fact does not weigh against the categorical

theory of declare war.

26Part IV.B, infra, discusses this issue in a little more detail.27Congress may indirectly control uses of military force not by enacting statutes that do as much,

but by attaching conditions to its appropriation statutes.28SeeYoo, CONTINUATIONOFPOLITICSBYOTHERMEANSsupranote 3, at 255-56.


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A skeptic of the categorical theory also might cite the use of war in Article III.

Article III, section 3 defines treason as including levying war against the United

States. If Congress enjoys a broad power to declare war, why does not the Treason

Clause just provide that declaring war against the United States was an element oftreason? The best answer is that the Founders wanted to contrast what was treason in

England with what would be treason in America. The Founders copied portions of

English treason law and omitted others,29 thus drawing the natural inference that the

offenses omitted would not constitute treason in America. The idea that levying war is

treasonous is part of English law that the Founders elected to retain.

But what does it mean to levy war? It means no more than to wage war.30

Accordingly, there is some overlap between declare war and levy war, for to wage war is

to declare war. But declare war meant far more than merely commencing it. Among

other things, it included the power to give notice of an impending war and the power to

make conditional declarations of war.31 Had the Constitution merely granted Congressthe power to levy war, Congress might lack many of the functions attributable to

declarations of war. The Constitution uses distinctive words relating to war in different

provisions because it means to accomplish distinct ends.

The chief difficulty with reading the Constitution as if it somehow refuted the

categorical theory of the declare war power is that so many people of the era endorsed

that view. As we shall see in Parts II and III, people understood that the power to

declare war encompassed the power to decide whether to wage war and that this power

could be exercised by formal and informal means. The plausibility of an originalist

claim surely must be judged not only on a bare examination of the text but also on the

extent to which individuals actually supported or voiced the claim. To suppose that the

Constitutions text somehow disqualifies the categorical reading of declare war is to

imagine that dozens of people in the eighteenth century were mistaken about what it

meant to declare war.

C. Constitutional Structure

29CompareU.S. CONST. art. III, 3 (Treason against the United States, shall consist only in levying

war against them, or in adhering to their enemies, giving them aid and comfort) with 4 WILLIAM

BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND*75-94 (describing these two types of treasonalong with many other actions that were treasonous in England).

30See 4WILLIAM BLACKSTONE, COMMENTARIESON THE LAWS OF ENGLAND*81-82 (describing

levying war as taking up arms against the King).31A conditional declaration of war was a declaration that warned that the declarant would wage war

against another country unless the other country satisfied certain demands. A nation might issue a

conditional declaration with the hopes that the other would see the wisdom of meeting the demands and

thereby avoid a war. See 3 HUGOGROTIUS, ONTHELAW OFWAR ANDPEACE253 (1625) (Kessinger

Publishing, 2004). For a longer contemporary discussion of conditional declarations, see Saikrishna

Prakash, Declarations of War: A Guide for the Perplexed, supranote 9.


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This part observes that Congresss power to declare war includes the power to

decide which means of force will be used against other nations. Congress not only may

decide to wage a full-scale war, it may also take more nuanced steps along the path to

such a war. In this way, Congress may judge what level of martial force is appropriate.

This part also considers anomalies arising from the formalist and pragmatic

theories of declare war. Each supposes that the Constitution implicitly bifurcates the

power to go to war between Congress and the President. Sometimes the Congress will

make the decision and sometimes the President will. The division of the power to wage

war implied by these theories creates anomalous results, suggesting that formalist and

pragmatic readings are mistaken.

1. A Unitary War Power

In Talbot v. Seeman, Chief Justice John Marshall observed that the [t]he whole

powers of war . . ., by the constitution of the United States, [are] vested in congress.Hence Marshall had no difficulty concluding that Congress could choose to authorize

only limited forms of warfare.32 Later, in Little v. Barreme, the Court held that the

President could not sanction captures that Congress had not permitted. 33 Because

Congress had authorized only certain types of captures, those were the only captures

permitted. A fortiori, the President surely could not have ordered general hostilities

because that would have left Congresss decision to wage a limited war against France in

utter tatters.

The more general point is that the Constitution provides that Congress may

decide what type of war America shall fight. At one extreme, Congress may grant lettersof marque and reprisal only to individuals with actual grievances against another nation.

This is the most constrained form of warfare, authorizing the narrowest acts of hostility.

At the other extreme is general warfare with Congress requiring the

Commander in Chief to commit any and all hostilities against the enemy and with

Congress authorizing the President to issues general letters of marque and reprisal to

any ship captain who wishes to fight for country while also enjoying the possibility of a

handsome profit. No further congressional escalation is possible.

In between these extremes lie more moderate measures. For instance, Congress

can authorize some captures, but not others (as was true in the undeclared war withFrance during the late 1790s). It can issue general letters of marque and reprisal,

permitting any American to capture any and all ships of a foe. Congress can order an

embargo of the enemys port, using a combination of its declare war, commerce, and

marque and reprisal powers. Or Congress can attempt to confine a war to certain

325 U.S. 1, 28-29 (1801).336 U.S. 170, 179 (1804).


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locations. In this way, Congress can calibrate, to some extent, the level of warfare that

America employs.

Accordingly, the Constitution contemplates that one actor, Congress, decides

on a macro-level what levels of force are appropriate to achieve American ends. AsJustice Samuel Chase said in Bas v. Tingy, Congress is empowered to declare a general

war, or congress may wage a limited war; limited in place, in objects, and in time.34

Necessarily, the President cannot make these choices. As Justice Oliver Patterson

observed in the same case, [a]s far as congress tolerated and authorised the war on our

part, so far may we proceed in hostile operations.35 If the Congress grants a letter of

marque and reprisal to an individual, the President cannot issue general letters. If

Congress grants general letters, the President cannot order a full-scale war. And most

obviously, if Congress has authorized no warfare at all, the President cannot decide that

the nation will wage war.

As a matter of constitutional structure, this allocation of war power makes sensebecause it leaves the decision to go to war and the question of what level of warfare is

appropriate in the hands one entity, rather than bifurcating that authority between two

entities. It concentrates responsibility on Congress and does not permit confusion as to

who is responsible for going to war and who is accountable for the level of force being

deployed. Whether Congress ultimately makes wise decisions or not, at least there is no

division of authority that might serve to confuse the people.

2. Difficulties with the Formalist Reading

Recall that the formalist view contends that while only Congress can issue

formal declarations of war, the President can actually start a war. Perhaps the most

conspicuous difficulty with the formalist view is that imagines an implausible

bifurcation of war powers. It supposes that the President has the greater power to start

a war, but wholly lacks the lesser power to grant letters of marque and reprisal. One can

debate the merits of a constitution that vests with the President with the full panoply of

war powers. Some will favor such a system and others will oppose it. But what reason

can there be for granting the President the power to start and wage a full scale war,

while simultaneously denying him the far less consequential power to issue letters of

marque and reprisal, a power which would be quite useful to the successful prosecution

of a war that he might start? This is to read the Constitution as if it swung the door

wide open to presidential wars but simultaneously, inexplicably, and unhelpfully boltedone window shut.

The formalist theory suffers from two additional quandaries. To begin with, it is

self-contradictory. The formalist theory, while plausible on the surface, actually is at war

with itself. If the President can wage a war whenever he wishes, Congress will lack many

344 U.S. 37, 43 (1800).354 U.S. at 45-46.


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of the functions clearly acknowledged to be part of the power to issue formal

declarations of war. To see why this is so, we need to explore what is minimally

encompassed in the declare war power. Everyone agrees that Congress may issue formal

declarations. The power to issue such declarations clearly includes the power to warn of

an impending war. Hence, a formal declaration of war can declare that war will occurin ten days. The power to issue formal declarations also encompasses the ability to issue

conditional declarations of war, i.e., a declaration that threatens war unless another

nation meets certain conditions. Yet if the President may wage war without any

congressional declaration, Congress will lack both subsidiary powers.

For instance, suppose Congress was in the midst of debating the merits of a

formal declaration of war that would give advanced warning of a war. Notwithstanding

the Congresss undoubted power to issue such a declaration, a President could wholly

preempt the debate by immediately waging war. Likewise, a President could start a war

while the Congress was in the midst of debating a proposed conditional declaration of

war. In either situation, the President could preempt any congressional declaration ofwar that sought to exercise these two acknowledged functions of a formal declaration.

Even worse, the President could thwart congressionally enacted declarations of

war. For instance, suppose Congress passes a declaration of war giving another nation

thirty days warning of impending warfare. The President might nonetheless start a war

right away, thus emasculating Congresss formal declaration of war. Even more

incongruous, Congress could issue a conditional declaration, the other nation might

actually satisfy the ultimatum, and the President might war against the nation

nonetheless. His decision would render the conditional declaration a total nullity.

The point is that if the President may start a war whenever he wishes, the

Congress cannot be described as having a power to issue formal declarations of war that

encompasses some of the most basic and acknowledged functions of formal

declarations. Instead, the President will exercise these functions through his supposed

ability to wage war at his discretion. The President, rather than Congress, can warn that

the United States will wage war in ten days. The President, rather than Congress, can

list conditions that another nation must satisfy in order to avoid war.

This flies in the face of our normal conception of constitutional powers.

Ordinarily, we do not believe that the President may thwart the exercise of

congressional and judicial powers. While he can exercise a veto, he does not have somegeneric power to negate or undermine congressional powers. The same is true of

Congressordinarily it cannot thwart either executive or judicial powers. Hence the

Congress cannot, under the guise of carrying into execution its legislative powers,

preclude pardons or bar vetoes.36

36Seegenerally, Saikrishna Prakash, Regulating Presidential Power, 91 CORNELL L.REV. 215 (2005)

(reviewing HAROLDJ.KRENT,PRESIDENTIAL POWER (2005)) (arguing the same).


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The Presidents constitutional authorities, however broad they may be, should

not be read to permit the President to vitiate functions clearly and uncontroversially

associated with the power to declare war. To say that the Congress may issue formal

declarations of war but that the President may nonetheless start a war whenever he

wishes is to endorse mutually incompatible propositions. One of them must give wayand since the Constitution quite clearly grants Congress the power to declare war and

does not similarly endorse the claim that the President may start a war, the latter

proposition should give way. At the very least it should cede way until there is evidence

backing the counterintuitive idea that although Congress has the power to declare war,

the President nonetheless may undermine that power by starting a war on his own.

A related difficulty with the formalist reading is that it makes the power to

declare war rather inconsequential. Recall that under the formalist theory, the power to

declare war is understood as a power to trigger existing statutes that turn on the

presence of a declared war. For instance, statutes might provide that if there is a

declared war, there will be rationing of foodstuffs and war material, a military draft, andemergency presidential powers. In sum, the power to declare war can be seen as the

power to put the nation on an emergency footing.

But Congress does not need the power to declare war to do any of these things.

Congress can use its other legislative powers and provide that should the President start

a war, there shall be rationing, a draft, and emergency presidential powers. Any

legislative power to pass laws includes the power to suspend or modify the operation of

such laws depending upon the state of the world. Hence Congress could provide that

bankruptcy laws work differently in times of depression. Or Congress could decree that

patent rights would be diminished in certain exigent circumstances. In a similar way,

Congress could trigger the availability of certain emergency powers and measures not on

the existence of a formal declaration of war, but on the existence of a war.

If Congress can accomplish the exact same ends that are supposedly

encompassed by the declare war power without ever issuing a formal declaration of war,

that calls into question the usefulness of having a separate power to declare war. Why

bother conspicuously granting Congress a superfluous power? This in turn casts grave

doubt on the formalist reading of declare war, for why include a clause in the

Constitution that is wholly redundant? The formalist view of declare war is

improbable precisely because it imagines that the power to declare war is rather empty.

3. Difficulties with the Pragmatic Reading

The pragmatic reading of declare war has its own set of problems. Recall that

the pragmatic theory supposes that once another nation has declared war against the

United States, there is no need for the Congress to declare war in kind because a state

of war already exists between the two nations. Hence, the President can (perhaps must)

wage war as soon as another nation has declared war against the United States.


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Even more so than the formalist theory of declare war, the pragmatic theory

imagines a puzzling bifurcation of war powers. Congress has the full panoply of war

powers before war has been declared. It can decide what type of war the United States

will wage, whether limited or general, and the Constitution does not authorize thePresident to make these decisions. However, once another nation declares war against

the United States, the most important portion of these war powers are transferred to

the President (the power to decide to wage war) and one of the least significant curiously

remains with Congress (the power to grant letters of marque and reprisal).

One can reasonably maintain that the power to declare war and the power to

grant letters of marque and reprisal ought to rest with the Congress before the start of a

war. And one can sensibly suppose that both of these powers ought to rest with the

President should another nation force us into a state of war. But what theory of the

optimal separation of war powers would suggest that once war has been declared against

the United States that the President ought to decide whether to wage war but thatCongress ought to control the issuance of letters of marque and reprisal? The President

can use whatever weapons are in the arsenal, including nuclear weapons, against the

enemy but cannot be trusted to augment our naval forces by drawing upon the skill and

avarice of private ship owners? The improbability of the bifurcation of war powers

implicit in the pragmatic theory suggests that the pragmatic theory itself is implausible.

Another difficulty associated with the pragmatic view rests on its implicit

premise that certain declarations of wars were really pointless. The pragmatic view

supposes that a subcategory of declarations, response declarations of war, served no real

purpose. If one nation declared war on another, the victim nation did not need to issue

a response declaration of war because the war was already afoot. The victim nation

could just wage war right away without any declaration.

This premise suffers from two problems. First, why should we conclude that

declarations of war are quite meaningful in one contextat the outset of a warbut

inconsequential once another nation has declared war? There is nothing in the

constitutional grant of the power to declare war that suggests as much. Likewise,

considerations of constitutional structure supply no reason to suppose that certain

declarations of war are meaningless. If we are to embrace the view that response

declarations of war are inconsequential, one is tempted to say that we ought to go

further and adopt the formalist view, a view that renders all such declarationsinconsequential and thus at least has the virtue of consistency. The pragmatic theory

shoulders a difficult burden because in the face of unqualified and categorical text, it

supposes that sometimes Congress must decide to wage war and other times the

President may make that decision.

A more fundamental problem with the premise that response declarations of

war were inconsequential is the too-quick assumption that no choice must be made


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once another nation has declared war against another. The only option is war. This

view is untenable. When a nation attacks another, the victim always has choices. Will

the victim respond in kind with full scale war? Will it pursue rather pacific measures,

such as a request for negotiations? Or will it pursue a third course of defensive

measures, coupled with a stern ultimatum?

The pragmatic view supposes that such choices do not exist. It supposes that the

President must wage war against the nation attacking the United States. But even if we

grant the (mistaken) assumption that the President is in the drivers seat, the conclusion

does not follow. A President hopeful for a reconciliation might order a posture of self-

defense with no significant offensive measures. A President with pacifist leanings might

respond to an attack not by ordering Air Force bombers and the navy to engage the

enemy, but by pursuing a negotiated settlement.

This point about choices to be made perhaps becomes plainer still when we

consider situations where a nation has formally declared war against the United Statesbut has not yet attacked. Suppose Iran issues a conditional declaration of war against

the United States with reasonable conditions necessary to avoid a war. Under the

pragmatic theory, Iran has declared war and hence has preempted any need for any

congressional declaration of war. The President may start bombing Iran right away. Yet

it seems far more sensible to suppose that Congress must decide whether to respond to

Irans conditional declaration with an unconditional declaration of war. In this case,

there are obvious decisions to be made about whether to fight a war and there is little

textual reason to suppose that the ordinary decisionmaker about whether to wage war,

Congress, can be bypassed merely because Iran issued a conditional declaration of war.

Although the United States status as the lone superpower suggests that the

Congress typically will respond to force with even more force, the seeming inevitability

of that response cannot dictate the meaning of constitutional phrases. The question is

whether there is a choice to be made about whether to wage war even when another

nation has declared war on the United States. Once it is understood that a choice must

be made, the only question is whether the Constitution permits the President to make

that choice or whether some other entity must make it. If the power to declare war is

the power to decide to wage war, as the pragmatic theory itself insists, any decision to

wage war must be left to Congress, the only entity constitutionally able to declare war.

The next two Parts present evidence from the seventeenth and eighteenthcenturies that demonstrates that to declare war was to decide to wage it. As we shall see,

Europeans and Americans repeatedly used declare war or declaration of war to

encompass much more than the familiar, if rare, formal declaration of war. Moreover,

when describing the allocation of the Constitutions war powers, the Foundersboth

before and after the Constitutions ratificationargued that Congress would decide

whether nation would wage war. In so doing, the Founders read declare war as it had

been understood for well over a century in Europe and in America. American materials


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also refute the notion that the President may start a war. Any such action would have

been regarded as a usurpation of the power the Constitution grants to Congress.

II. The Initiation Declaration of WarRecall that the formalist theory claims that the power to declare war was nothing

more than a power to issue formal declarations. The declare war power did not include

the ability to decide whether to issue initiation declarations of war (i.e., to decide to

wage war). The formalist view also denies that nations declared war by deciding to enter

a war. Absent a document that expressly declared war, a nation could not declare

war.

Contrary to what the formalist theory supposes, evidence from the eighteenth

century establishes that to declare war was to decide to enter a war. Europeans and

Americans described the start of warfare as a declaration of war. Indeed, hostile acts ofvarious sorts were the primary means of declaring war. These acts were regarded as

declarations of war because they signaled that a nation had decided to wage war.

A. European UsageDeclarations were originally regarded as pronouncements that signaled that a

nation had chosen to wage war. The Greeks and Romans were said to have formally

declared war prior to the commencement of warfare. They gave advanced warning to

their enemy presumably because they thought this was the honorable thing to do 37and

because the warning might cause the other nation to sue for peace. Notwithstanding

this general practice, there were exceptions to the rule of advance warning.38

European nations inherited and perpetuated this practice, at least for a time. At

some point, presumably during the early modern European era, European nations

concluded that giving a warning came at too high a cost. The element of surprise would

be lost, and with it, the war as well. Hence the practice of issuing formal declarations of

war that gave advanced warning fell into disuse. While a declaration of war could still

serve that purpose, they rarely did.

Instead, Europeans occasionally issued formal declarations of war afterhostilities began. These declarations would serve propaganda purposes and notify

various populaces of the legal regime that would exist during the war. These formal

declarations of war were hardly as consequential as the earlier formal declarations of war

which often marked the beginning of hostilities.

37SeeJ.W. RICH, DECLARINGWARIN THE ROMANREPUBLICIN THE PERIOD OFTRANSMARINE

EXPANSION56 (1976)38Id.


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Though declarations of war and the decision to wage war were no longer

exclusively associated, the link between them was never totally severed. Europeans

continued to associate the declaration of war with a nations decision to wage war.

Speaking of the eighteenth century, historian Stephen Neff notes that [i]n practice, itcame to be accepted that any unambiguous sign or signal of an intention to resort to

war could function as a declaration of war. 39 If a war began with warfare, those acts of

warfare were an informal declaration of war. If a war started with less hostile acts, those

hostile acts were an informal declaration of war.

We see evidence of signals serving as declarations of war from ancient times.

The Romans declared war by throwing a blood smeared iron tipped spear into enemy

territory.40 When enemies were not adjacent, the Romans designated a spot in the

Roman forum as enemy territory and threw the spear into that ground. 41 In medieval

times, the unfurling of flags and the sending of a bloody glove (throwing down the

gauntlet) served as declarations.42 The Barbary nations declared war by cutting downanother nations flag.43 This insult was a traditional means of declaring war precisely

because it signaled a decision to resort to warfare.

By the seventeenth and eighteenth centuries, declaring war via some hostile

action was quite common. In fact, by the eighteenth century, most wars were declared

via some hostile action rather than by a formal declaration of war. A formal declaration

of war might be issued years after an informal declaration, if at all.

The English were quite aware that hostile actions would serve as a declaration of

war. In his memoirs, a seventeenth century diplomat described how England had twice

declared war against Holland. No clap of thunder . . . could more astonish the world,

than our declaration of war against Holland . . ., first by matter in fact, in falling upon

their Smyrna fleet; and in consequence of that . . . by a formal declaration. 44 Though

Admiral George Byng destroyed a Spanish fleet in 1718, he openly declared that the

destruction of the Spanish fleet was not to be interpreted into such a declaration [of

war].45 Byngs denial confirmed that such attacks were normally seen as declarations of

war. Discussing the French and Indian war, one author claimed that a French armada

had sailed toward America to strike some important blow that might serve for a

declaration of war.46 A 1795 book by a diplomat argued that Prime Minister William

39STEVENNEFF, WARAND THE LAWOFNATIONS: A GENERALHISTORY109 (2005).40See1 LIVY, HISTORYOFROME1.32.41NEFF, supranote 35, at 28.42Id. at 72.43SeeJOSHUA E.LONDON,VICTORY IN TRIPOLI95 (2005).442 WILLIAM TEMPLE,THEWORKS OFWILLIAM TEMPLE255 (1757).45J.F. MAURICE,HOSTILITIES WITHOUT DECLARATION OFWAR14-15 (1883).461 JOHN ENTICK,THE GENERAL HISTORY OF THE LATEWAR121 (1763). Another author noted

that Englishmen were worried that the unprovoked capture of French ships might be considered by the


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Pitt (the Younger) had tried to provoke a formal French declaration of war by acts

which were in truth and substance, a declaration of it on his own.47

Such sentiments were voiced in the English Parliament as well. In 1664, Prince

Rupert told Parliament that he regarded the violent acts of a Dutch admiral as adenunciation of war.48 In 1677, a member of the Commons claimed [i]s not our

men going into France as much a Declaration of War as the sending of money into

Germany [to fund a war there]? The next year a member observed that if war is

actually made it is then in effect declared.49 Another said that war had been

proclaim[ed] . . . already by our sending men into Flanders, to assist the Spaniards. 50

In 1779, a member asserted that Spanish conduct and armaments amounted to a

positive declaration of war . . . only reserving to themselves the precise period when and

where to strike the first blow. 51 A legislator in 1846 noted that the bombardment of

Copenhagen was the declaration of war between England and Denmark.52

Unsurprisingly, English monarchs held the same understanding of declarewar. Addressing the Parliament in 1689, William III said that he regarded the war to

be so much already declard by France against England.53 A formal declaration of war

was not made until months later, so he presumably referred to French hostilities.

Likewise, George III treated a clash between French and English ships in July 1778 as

evidence that the French had thrown off the mask and declared war. 54 In both cases,

the French had declared war because their actions indicated that they had chosen to

wage war.

Those on the Continent shared the view that to wage war was to declare it. In

1754, upon learning that England had dispatched a fleet to attack French ships the

French Ambassador declared that his royal master would consider the first gun, fired at

sea in a hostile manner, to be a declaration of war.55 In 1788, Edmund Burke reported

that the warfare that broke out between Russia and Sweden was considered and treated

court of Versailles as an indirect declaration of war. 5 THERISEANDFALLOFMODERNEUROPE217

(1789).47ROBERTADAIR,AWHIGSAPOLOGY FOR HIS CONSISTENCY84 (1795). Later, the book argued

that the insulting dismission of M. Chauvelin [the French Ambassador to England] was the substantial

declaration of [war]. Id.at 103.483 ROBERT PHILLIMORE,COMMENTARIES UPON INTERNATIONAL LAW105 (*78).495 GREYS DEBATES OF THE HOUSE OF COMMONS(March 19, 1678) found at http://www.british-

history.ac.uk/report.asp?compid=40989.505 id. (March 15, 1678) found at http://www.british-history.ac.uk/report.asp?compid=40988.5111 PARLIAMENTARY REGISTER138 (1802).5285 HANSARDS PARLIAMENTARY DEBATES1313 (Third volume of the session) (1846).532 THE HISTORY AND PROCEEDINGS OF THE HOUSE OF COMMONS(Feb. 25, 1689) found at

http://www.british-history.ac.uk/report.asp?compid=37645.54See4CORRESPONDENCE OF KING GEORGE III 180 (John Fortescue ed., 1928).551 ENTICK, supranote 42, at 127. See also THOMAS F.GORDON,AGAZETTEER OF THE STATE OF

NEWJERSEY125 (1834); 3 PHILLIMORE, supranote 44, at 110 (*85).


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by each as a declaration of war.56 The Ottomans warned Napoleon that any attack on

Egypt would be a declaration of war.57 Emperor Alexander of Russia noted that

Napoleon by a sudden attack on our troops at Kowno, has declared war. 58

During its war with virtually all of Europe, Republican France repeatedlyregarded various hostile acts as declarations of war. In 1792, the National Assembly

cited the King of Hungary and Bohemias support of French malcontents and his

hostile preparations as a declaration of war.59 Prior to declaring war on England, a

French legislator claimed that the English King had declare[d] war when he dismissed

the French ambassador, expressed grief at the execution of Louis XVI, and demanded

that Parliament appropriate funds for a larger army. 60 Consistent with his claim,

Frances actual declaration asserted that English acts of hostility were the equivalent

to a declaration of war.61 Frances declaration of war against Spain likewise accused

Spain of declaring war by its hostilities.62

As the above statements make clear, a number of hostile measures falling shortof actual warfare were regarded as declarations of war. For instance, issuing general

letters of marque was commonly seen as a declaration of war.63 These letters authorized

individuals to capture enemy ships. In return for capturing ships, the capturing party

would share in the proceeds from the sale of the captured goods. The idea was to

augment ones navy by drawing in extra firepower. 64 If a nation authorized all of its

nationals to capture ships of another nation, that nation clearly had decided to wage

war. Likewise, a blockade might serve as a declaration of war65for it suggested that the

nation imposing the blockade had decide to war against the other.

Another measure regarded as a declaration of war was aiding an enemy of a

warring nation when there was no pre-existing obligation to do so.66 For instance,

making a treaty with a party to a war was generally regarded by the other party as a

declaration of war. During the Revolutionary War, England warned the Dutch that if

they ever approved a treaty with the rebellious Americans, it would be a

56THEANNUAL REGISTER FOR THE YEAR1788, 75-76 (1789).57See4 WALTER SCOTT,THE LIFE OF NAPOLEON BONAPARTE90 (1827). Egypt was then a part of

the Ottoman Empire.58MAURICE, supranote 41, at 44.591 COLLECTION OF STATE PAPERS RELATIVE TO THEWARAGAINST FRANCE19 (1794-1802).60ACOLLECTION OFADDRESSES TRANSMITTED BY CERTAIN ENGLISH CLUBS AND SOCIETIES TO THE

NATIONAL CONVENTION OF FRANCE149 (1793).61Id. at 83.62Id. at 99.63NEFF, supranote 35, at 109.64Id.65WILLIAM SMYTH,LECTURES ON MODERN HISTORY385 (describing the blockade of Boston as a

declaration of war).66NEFF, supranote 35, at 109.


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commencement of hostilities and a declaration of war. 67 A 1789 book on the history

of Athens noted that when the Athenians entered into a treaty with a state already at

war, this was surely equivalent to a declaration of war.68 In December of 1791, the

French National Assembly issued a Manifesto which asked the rhetorical question [i]s

it not equivalent to a declaration of war to give places of strength not only to enemies . .. but also to conspirators who fight France? 69 Tippu Sultan, the scourge of the English

in southern India, was said to make the equivalent to a public, unqualified, and

unambiguous declaration of war by making a 1799 treaty with France and by admitting

its soldiers into his army.70 In 1807, the English attacked Copenhagen, claiming that in

making a treaty with the French, the Dutch had declared war.71

Perhaps the most famous informal declaration of this type was Frances 1778

notification of its Treaty of Alliance with America. When the French Ambassador

notified the English, an English minister almost wept tears of anger (or so the French

Ambassador claimed). One Englishman said the notification was justly considered as a

declaration of war.72 Another said it was impossible, without insulting in too gross amanner both truth and reason, to deny that the declaration of the Marquis of Noailles .

. . ought to be received as a true declaration of war. 73 George III himself wrote that the

notification is certainly equivalent to a declaration. 74 Commenting much later, noted

jurist and international law expert, Sir Robert Phillimore observed that France

declared war against England when she announced the Treaty, when she sent ships to

America to take part in the hostilities, and when she recalled her ambassador.75

As suggested above by Phillimores comment, withdrawing ones ambassador or

dismissing another nations in antagonistic circumstances was seen as a declaration of

war, presumably because either action signaled the end of parleying and the onset of a

war. For instance, when the English demanded that the Genoese dismiss the French

Republics ambassador, the Genoese refused on the ground that to do so would be to

positively declare war against France.76 Likewise, when France recalled its ambassador

from England in 1850, that recall was the French declaration of war.77

67John Adams to the President of Congress (December 18, 1780) in 4 REVOLUTIONARY

DIPLOMATICCORRESPONDENCE, supranote 7, at 197 (quoting English remonstrance to Holland).68WILLIAMYOUNG,AHISTORY OFATHENS156 (1786).69THEANNUAL REGISTER FOR THE YEAR1791, 211 (1792).70ALEXANDER BEATSON,AVIEW OF THE ORIGIN AND CONDUCT OF THEWAR WITH TIPPOO

SULTAN11 (1800). At the time, the English and the French were at war.71MAURICE, supranote 41, at vi-vii. At the time, the English and the French were at war.723 JOHNANDREWS,HISTORY OF THE LATEWAR WITHAMERICA212 (1785).73THEANNUAL REGISTER FOR THE YEAR1779, 411 (1790).742 CORRESPONDENCE OF GEORGE IIIWITH LORD NORTH148 (1867).753 PHILLIMORE, supranote 44, at 115.76THE CHRONOLOGIST OF THE PRESENTWAR211-12 (1796).77MAURICE, supranote 41, at 6.


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Highly provocative measures might serve as a declaration of war, at least where

they made clear that hostilities were forthcoming. In 1804, an English parliamentarian

made this insightful comment about the actions of Francis II, Holy Roman Emperor:

It is the common law of Europe that every power oughtto consider the assembling of troops, the formation of

magazines, the baking of biscuits, levies of horses for

wagons, as a declaration of war.

Why was this so? Because when nations amassed troops and supplies at a great expense,

they had decided to wage war. Franciss actions signaled, at least to the English

legislator, that he had chosen to wage war and hence Francis had declared it.

At the extreme, evasion or silence could be regarded as an implicit declaration of

war. In 1756, the Prussian King, Frederic II, demanded that if the Austrian Empress,

Maria Theresa, wanted peace she would have to make an unambiguous declaration thatshe was not about to attack Prussia. On the other hand, he would look upon any

ambiguous answer as a declaration of war.78 In 1761, the English gave a similar

ultimatum to the Spanish. England wanted to know if Spain was thinking of allying

herself with France against England? The English King declared that he would regard

a refusal to answer the question as an aggression and declaration of war. 79 The

Spanish monarch, put off by English haughtiness, said that in that very moment that

the war was declared by England.80 In his formal declaration of war, George III

accused Spain of declaring war in effect with its response to his query. 81 Somewhat

comically, the Spanish King also issued a formal declaration of war noting that he had

already treated Englands disrespectful query as a declaration of war by England.

Hence it was unnecessary for England to re-declare war via a formal declaration.82

Why would a nation treat silence or evasion as a declaration of war? It is easy to

see why. When a nation demands assurances that it will not be attacked and such

assurances are not made, the nervous nation might reasonably conclude that the nation

unwilling to give such assurances had already decided to wage war. The nation

unwilling to reassure was merely waiting to attack at the propitious moment. Because

the decision to wage war was a declaration of war, these nations, by maintaining silence

in that context, effectively confirmed that they had secretly declared war and were

merely waiting to strike at the right moment.

At times, nations would attempt to shift blame for the start of a war to others by

claiming that some nations action or failure to take an action was a declaration of war.

78JOHNALMON,ANEW MILITARY DICTIONARY61 (1760).79THEANNUAL REGISTER FOR THE YEAR1761, 281 (1762).80Id.81Id. at 287.82Id. at 288.


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The Austrian Emperor in 1784 delivered an ultimatum to the Dutch. He demanded

free and unlimited navigation of the Scheld in both branches to the sea . . . . [If] any

insult [was] offered to the imperial flag, in the execution of these ideas, he should be

obliged to consider it as a formal declaration of war.83 Since the Dutch controlled the

Scheld River, the Emperor was acting provocatively. During its war with Europe,France spuriously declared that any nation whose ships transported British goods

through a particular sound would be regarded as declaring war. 84 In a similar fashion,

Sicily demanded that France withdraw from Rome and noted that a negative answer

to this ultimatum would be a declaration of war.85 Russia made an incredible

demand of the Ottoman Empire. Unless the latter declared war against France, Russia

would consider the Ottomans as having declared war on Russia.86 Each of these

episodes marked an attempt to stretch declare war beyond all customary limits. The

refusal to satisfy unreasonable demands in no way indicated a decision to wage, and

therefore declare, war. Instead, the demands were merely attempts to shift the blame

for the beginning of the war onto the other nation.

While authors of international law treatises were primarily concerned with

whether and when nations had to issue formal declarations of war, they certainly

understood that nations might declare war by informal means. Professor Michael

Ramsey has ably canvassed these sources before,87 so only a few comments seem

necessary. As Professor Ramsey has demonstrated, Cornelius Bynkershoek clearly

believed that Article IX of the Treaty of Utrecht used declare war as a synonym for

commencing a war and not merely encompassing the power to formally proclaim war. 88

Hugo Grotius recounted the Roman practice of declaring war by throwing a bloody

spear into enemy territory89 and also spoke of formal declarations, thus implicitly

acknowledging that there was a category of informal declarations of war.90 Emmerich

de Vattel claimed that [w]hen one nation takes up arms against another, she from that

moment declares herself an enemy to all the individuals of the latter. 91 Christian

Wolff confirmed that allying with a party to war was a declaration of war: He who allies

himself to my enemy, as by sending troops or subsidies, or by assisting him in any other

834 WILLIAM BELSHAM,MEMOIRS OF THE REIGN OF GEORGE IIITO THE SESSION OF PARLIAMENT

ENDINGA.D. 1793, 163-64 (1795). The Emperor then sent a ship which the Dutch stopped. But the

Emperor shrank from the fight. Id. at 164-68.848 COLLECTION OF STATE PAPERS, supranote 55, at 83.858 id. at 108.867 id.at 362.87SeeRamsey, supranote 5, at 1590-95.88SeeCORNELIUS VAN BYNKERSHOEK,2QUAESTIONEMJURIS PUBLICI LIBRI DUO132 (1737)

(Clarendon 1930).89GROTIUS, supranote 31, at 254.90Id. at 252.91EMMERICH DEVATTEL,THE LAW OF NATIONS 399 (G.G. and J. Robinson ed. London, 1797).


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way, declares by that very fact that he wishes to be a participant in the war carried on

against me.92

Though Blackstone said little about declarations of war, what he did say

confirms that to decide to wage war was to declare it. Blackstone noted that piratesdeclare war on mankind when they engage in their depredations and that mankind may

declare war them in like manner.93 Clearly, Blackstone referred to hostile actions and

not formal declarations. Earlier in his Commentaries, Blackstone spent some time

discussing why he (erroneously) believed that formal declarations of war were required

under the English system. He then continued with this sentence: And wherever the

right resides of beginning a war, there must also reside a peace power.94 This sentence,

coming as it does on the heels of a discussion of the power to declare war, 95 clearly

equates declaring war with the right to begin a war. Like his fellow Englishmen,

Blackstone fully understood that the power to declare war included the right to decide

whether to wage war.

Jacques Necker, who authored a two volume treatise on executive power,

endorsed the notion that declare war included the power to wage war. Necker

criticized the grant of declare war authority to the legislature found in the French

Constitution of 1791. Under that Constitution, only the assembly could declare war.

Necker complained that this put France at a disadvantage because other countries had

monarchs who declared war by actually commencing it. 96 He later noted that

hostilities are commonly considered the strongest declaration of war.97 Changing

tack, Necker argued that the French Constitution contained certain provisions that

actually permitted the King to commence hostilities. He claimed that these were left

ambiguous because had the Constitution expressly authorized the King to wage war and

also vested the Assembly with declare war authority, it would have excited the laughter

of all Europe. Such wording would have provoked derision precisely because Europe

understood that to decide to wage war was to declare it.98

All across Europe, monarchs, ministers, legislators, and many others read

declare war as meaning that a nation had chosen to wage war. Hence while a nation

might declare war by a formal declaration, many other actions that evinced a decision to

wage war were likewise declarations of war. Most obviously, to commence warfare

against another nation was an absolute and unequivocal declaration of war.

B. American Usage

92CHRISTIANWOLFF,2JUS GENTIUM METHODO SCIENTIFICA PERTRACTATUM377 (1764)

(Clarendon 1934).934 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *71.941 id. at *250.951 id.961 NECKER, supranote 8, at 271 (1792).971 id. at 273.981 id. at 277.


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Though eighteenth century America might have seemed distant and isolated

from Europe, Americans shared the same sense of declare war and declaration of

war. Hence, Americans treated documents that evinced a warring disposition as

declarations of war even if they never said as much. Likewise, the commencement ofwarfare was an informal declaration of war. Finally, Americans regarded various hostile

actions short of actual warfare as declarations of war.

1. Early American Understandings

Well before the Constitution was even contemplated, Americans understood

that to commence war was to declare it. In 1756, the English dispatched George

Washington to attack the French. George II already had formally declared war on the

French. Notwithstanding that declaration, Washington asked the Virginia Lieutenant

Governor how war is to be declared at this place. Robert Dinwiddie answered [t]he

method you are to declare war is at the head of your companies, with three vollies [sic]of small arms for his Majestys health and successful war.99 In this way, the English

ordered Washington to declare war in a particular theater on behalf of the Crown.

Richard Henry Lee noted in 1778 that French Admiral DEstaing had declared war

against G. Britain on board his fleet.100 Though France had not (and never would)

formally declared war (as Lee later noted), orders to commence war were the equivalent.

In 1784, Major-General Peter Muhlenberg wrote that the cutting off the head of [a

man] is looked upon by those who are best acquainted with the customs of the Indians

as a declaration of war.101 What Muhlenberg evidently meant that is that when

Indians beheaded someone, that indicated a resolve to wage, and hence declare, war.

Americans understood that the seizure of ships could be a declaration of war,

albeit perhaps a limited one. In 1776, a delegate to the Continental Congress wrote

that the Portuguese have declared war Against us by Seizing Our Vessels in Ports. 102

In 1777, the American representative in Martinique thought that if England did not

return a ship to the French, the French would deem it almost a Declaration of War. 103

A much larger English seizure later in the year was met with a French ultimatumany

99Letter fr

What the Constitution Means by Declare War

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