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; . . .

During the debates over ratification of the Constitution, the states considered whether to give their assent to a new system of government in which the United States’ suite of war powers was divided between the legislative and executive branches, and Congress’s power to “declare War” had replaced its “right of determining on peace and war” under the Articles of Confederation.1 Although many delegates to the state ratification conventions raised concerns about the broader centralization of military powers under the Constitution, the Declare War Clause’s meaning was not often discussed.2 Instead, opponents of the Constitution, who became known as Anti-Federalists, frequently criticized the breadth of the federal government’s powers to carry out and sustain wars using its powers over standing armies, the militia, taxation, and other means, but they did not often attack its ability to declare them.3

A common Anti-Federalists critique was that, by giving a single branch of government the power to declare war and raise funds to support it, the Constitution combined the “sword” and the “purse” in a single branch, which made it too easy for the national government to pursue ill-guided wars that did not benefit the general populace.4 The British model of government provided a better system of checks and balances, Anti-Federalists argued, by giving the Monarch the power to declare war and Parliament the power to choose whether to fund the Crown’s military campaigns.5

Supporters of the Constitution, known as Federalists, responded that they had sufficiently separated the sword from the purse by making the President “Commander in Chief of the Army and Navy” while giving Congress control over war funding.6 Federalists argued that the dangers of the British system did not apply to the Constitution because a politically accountable body of representatives in Congress, rather than an unelected monarch, wields the power to declare war.7 When Anti-Federalists suggested that the powers over the sword and the purse should be retained by the states or the general populace,8 Federalists responded that the United States would lose an essential element of its sovereignty and be unable to defend itself if deprived of these core war powers.9

While much of the debate addressed the Declare War Clause’s place within the Constitution’s broader scheme of war powers, Anti-Federalists occasionally criticized the text of the clause itself. The pseudonymous Anti-Federalist author Cincinnatus observed that the Declare War Clause placed no limit on the type of wars that Congress could declare and did not prevent the United States from attempting to conquer other nations.10 Federalists, including Alexander Hamilton and James Madison, countered this line of reasoning by contending that limitations on congressional war powers would be unwise because it was impossible to predict which types of military action might be necessary to defend the United States and protect its interests in the future.11

In the New York ratifying convention, Anti-Federalists suggested that Congress was too small a body to be trusted with the power to declare war and that a small number of elected officials could be induced to declare war through bribery or corruption.12 The Federalist John Jay responded that the Constitution would decrease risks of corruption because an even smaller group of individuals already had the power to decide upon war and peace under the Articles of Confederation.13 The New York Convention was sufficiently concerned about the issue that it recommended an amendment to the Constitution requiring a two-thirds super-majority vote in both chambers of Congress before declaring war.14 Of the 124 amendments state ratifying conventions proposed to the Constitution, this was the only proposal to amend the Declare War Clause, but it was not adopted at the national level.15

Footnotes

1

For background on the transition from the power to “determin[e] on peace and war” under the Articles of Confederation to the “declare War” under the Constitution, see through .

2

Other war-related provisions, such as the power to raise and support armies, were heavily criticized and debated. See .

3

For instance, the Declare War Clause was “read without any observation” in the North Carolina ratifying convention, even though that state found the Constitution sufficiently objectionable to delay its ratification. See 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 94 (Jonathan Elliot ed., 1836) [hereinafter Elliot’s Debates]. Some prominent Anti-Federalists objected to the Constitution’s overall centralization of war powers, but agreed that the power to declare war should reside with the central government. See, e.g., Federal Farmer III (Nov. 8, 1787), reprinted in 14 The Documentary History of the Ratification of the Constitution 35 (John P. Kaminski et al. eds., digital ed. 2009) [hereinafter Documentary History] ( “[A]ll causes arising on . . . peace and war . . . can be lodged no where else, with any propriety, but in this government.” ); Agrippa, XIII, Ma. Gazette, Jan. 14, 1788, reprinted in Essays on the Constitution of the United States 1787–1788, 93 (1892) (P. Leicester Ford ed.) ( “[Congress] should have the right of war and peace” ).

4

See, e.g., 2 Elliot’s Debates, supra note 3, 331, 375, 393 (statements of John Williams, John Lansing, John Smith to New York ratifying convention); 3 Elliot’s Debates, supra note 3, at 172, 379, 388, 611 (statements of Patrick Henry, George Mason, George Nicholas, and John Dawson to Virginia ratifying convention); 4 Elliot’s Debates, supra note 3, at 56, 202 (statements of William Goudy and William Lenoir to North Carolina ratifying convention); 4 Documentary History, supra note 3, at 1287 (statement of Abraham White to the Massachusetts ratifying Convention) ( “Congress, with the pursestrings in their hands, will use the sword.” ); 15 Documentary History, supra note 3, at 273 (records of the Connecticut ratifying convention) ( “Gen. Wadsworth objected against it, because it gave the power of the purse to the general Legislature; another paragraph gave the power of the sword; and that authority, which has the power of the sword and purse, is despotic.” ). See also Federal Farmer XVII (May 2, 1788), reprinted in 20 Documentary History, supra note 3, at 1003 ( “[T]he purse and sword ought not to be placed in the same hands in a free government.” ); Letter from Hugh Ledlie to John Lamb (Jan. 15, 1788), in 20 Documentary History, supra note 3, at 611 ( “[T]he new Constitution gives all the power both of the sword and purse into the hands of the Congress, our people reckon it leads to and opens a door for despotism, tyranny, anarchy, and confusion, and every evil work.” ).

5

See, e.g., 3 Elliot’s Debates, supra note 3, at 172 (statement of Patrick Henry to Virginia ratifying convention) ( “[T]he king . . . will enter into no war that is unnecessary; for the commons, having the power of withholding the means, will exercise that power, unless the object of the . . . war be for the interest of the nation.” ); id. at 379 (statement of George Mason to the Virginia ratifying convention) ( “How is this compared to the British constitution? Though the king may declare war, the Parliament has the means of carrying it on. It is not so here. Congress can do both.” ); id. at 611 (statement of John Dawson to Virginia ratifying convention) ( “Congress, sir, have the power to declare war, and also to raise and support armies; and if we suppose them to be a representation of the states, the nexus imperii of the British constitution is here lost.” ); A Federal Republican, A Review of the Constitution Proposed by the Late Convention Held at Philadelphia, 1787 (Nov. 28, 1787), in 14 Documentary History, supra note 3, at 255, 265; Federal Farmer XVII, in 17 Documentary History, supra note 3, at 355 ( “Our wise ancestors have carefully separated them — placed the sword in the hands of their king, even under considerable limitations, and the purse in the hands of the commons alone: yet the king makes peace and war . . . .” ).

6

See, e.g., 3 Elliot’s Debates, supra note 3, at 201, 298, 393 (statements of Edmund Randolph, Edmund Pendleton, and James Madison to the Virginia ratifying convention); 4 Elliot’s Debates, supra note 3, at 172 (statement of Archibald Maclaine to the North Carolina ratifying convention); 4 Elliot’s Debates, supra note 3, 107–08 (statement of Iredell to North Carolina ratifying Convention).

7

See, e.g., 2 Elliot’s Debates, supra note 3, at 195 (statement of Oliver Ellsworth to Connecticut ratifying convention) ( “[D]oes it follow, because it is dangerous to give the power of the sword and purse to an hereditary prince, who is independent of the people, that therefore it is dangerous to give it . . . to Congress, which is . . . appointed by yourselves, and dependent upon yourselves?” ); id. at 345 (statement of R.R. Livingston to New York ratifying convention) ( “Your state government has the unlimited power over the purse and the sword: why do you not fear that your rulers will raise armies, to oppress and enslave the citizens? Clearly, because you feel a confidence in the - men you elect; and that confidence is founded on the conviction you have that tyranny is totally inconsistent with their interest.” ); 3 Elliot’s Debates, supra note 3, at 201, 233 (statements of Edmund Randolph and John Marshall to Virginia ratifying convention).

8

See, e.g., 2 Elliot’s Debates, supra note 3, at 169 (statement of Patrick Henry to the Virginia ratifying convention) (questioning why “the sword and purse were given up from the people?” ); 3 Elliot’s Debates, supra note 3, at 277 (statement of William Grayson to Virginia ratifying convention) (arguing that national security justifications for allocating war powers to the federal government were greatly exaggerated).

9

See, e.g., 2 Elliot’s Debates, supra note 3, at 57 (statement of Rufus King to Massachusetts ratifying convention) ( “It is an objection in some gentlemen’s minds, that Congress should possess the power of the purse and the sword. But, sir, I would ask, whether any government can exist, or give security to the people, which is not possessed of this power.” ); id. at 195 (statement of Oliver Ellsworth to Connecticut ratifying convention) (arguing that, in Britain, “they have the sword and the purse. And they must have both; else, how could the country be defended?” ); id. at 349 (statement of Alexander Hamilton to New York ratifying convention) ( “All governments have possessed these powers: they would be monsters without them, and incapable of exertion.” ); id. at 386 (statement of R.R. Livingston to New York ratifying convention) (arguing that Congress could not defend the United States without the power over the “sword,” and that Anti-Federalists would place this power in “thirteen hands” and cause it to wound itself); id. at 522 (statement of James Wilson to Pennsylvania ratifying convention) ( “[W]hat free government he knows that has not the powers of both [the purse and the sword]?” ); 4 Elliot’s Debates, supra note 3, at 202 (statement of James Iredell to North Carolina ratifying convention) ( “There is a necessity of giving both the purse and the sword to every government, or else it cannot protect the people.” ).

10

Cincinnatus III: To James Wilson, Esquire, N.Y.J., Nov. 15, 1787, reprinted in 14 Documentary History, supra note 3, at 124–28.

11

See, e.g., The Federalist No. 34 (Alexander Hamilton) ( “There ought to be a CAPACITY to provide for future contingencies, as they may happen; and, as these are illimitable in their nature, it is impossible safely to limit that capacity.” ); The Federalist No. 41 (James Madison) ( “How could a readiness for war in time of peace be safely prohibited, unless we could prohibit in like manner the preparations and establishments of every hostile nation?” ).

12

See 22 Documentary History, supra note 3, at 1746–47 (statement of John Williams), id. at 1783 (statement of John Lansing).

13

See 2 Elliot’s Debates, supra note 3, at 284–85.

14

Id. at 407.

15

For background on the path from amendments proposed in the state ratifying conventions to the Bill of Rights, see .