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; . . .

Congress’s authority to declare war has its antecedents in Britain and in Colonial America. Under the British system of government, most essential war powers were lodged in a single individual—the monarch. The power of “making war or peace” was the sole prerogative of the Crown,1 and the monarch was the first in command of British military forces.2 Great Britain also traditionally allowed its monarchs to raise and support armies; however, by the end of the 17th century, Parliament controlled appropriations of funds for the military, and the Crown agreed not to maintain a standing army during peacetime without parliamentary consent.3

In pre-revolutionary America, many colonial charters granted certain war powers to colonial governments, such as the power to defend themselves from invasion or armed attack.4 When the American independence movement emerged in the 1770s, colonists formed militia at the local and state levels, and revolutionary state assemblies passed laws organizing militias and mandating service for some segments of the population.5 During this period, the Second Continental Congress coordinated militias at the national level.6 The Second Continental Congress also created a Continental Army,7 appointed George Washington as its Commander-in-Chief,8 and called upon Americans to take up arms and organize themselves into militia units.9 The Second Continental Congress also adopted a set of declarations and petitions culminating in the Declaration of Independence10 —a document that shares elements in common with 18th century declarations of war,11 and which some scholars describe as the functional equivalent of America’s first written declaration of war.12

By November 1777, the Continental Congress had adopted the Articles of Confederation, which expressly allocated war-making authorities within the United States.13 The Articles of Confederation did not use the phrase “declare war,” and instead gave the national Congress, which became known as the Confederation Congress, the exclusive “right and power of determining on peace and war[.]” 14 The Articles denied states the power to “engage” in war unless the Confederation Congress provided consent through a super-majority vote of nine of thirteen states.15 There were two exceptions to this requirement: a state could engage in war without congressional consent if it were “actually invaded by enemies” or if it learned of a planned invasion by a Native American tribe that presented a danger “so imminent as not to admit of a delay” until the Confederation Congress assembled.16

Footnotes

1

William Blackstone, Commentaries *249 ( “[T]he king has also the sole prerogative of making war and peace.” ). See Joseph Story, Commentaries on the Constitution of the United States § 1165 ( “In Great Britain [declaring war] is the exclusive prerogative of the crown; and in other countries, it is usually, if not universally confided to the executive department.” ).

2

1 William Blackstone, Commentaries *249 ( “THE king is considered, in the next place, as the generalissimo, or the first in military command, within the kingdom.” ).

3

See [cross-reference to new Army Clause essay “The Early American Experience with Standing Armies” ] (discussing development of restrictions on peacetime standing armies in Great Britain); John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Ca. L. Rev. 167, 209–11 (1996) (discussing parliamentary control of appropriations for the military through annual Mutiny Acts).

4

See, e.g., The Charter of Maryland— 1632, in 3 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America 1669 (Francis Newton Thorpe ed., 1909) (granting authority “to wage War, and to pursue, even beyond the Limits of their Province, the Enemies and Ravagers aforesaid, infesting those Parts by Land and by Sea, and (if God shall grant it) to vanquish and captivate them, and the Captives to put to Death” ); The Charter of Connecticut— 1662, 1 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America 529 (Francis Newton Thorpe ed., 1909) (authorization to “Assemble . . . in warlike Posture the Inhabitants of the said Colony . . . to encounter, expulse, repel and resist by Force of Arms, . . . also to kill, slay, and destroy by all fitting Ways . . . every such Person or Persons as shall at any Time hereafter attempt or enterprise the Destruction, Invasion, Detriment, or Annoyance of the said Inhabitants or Plantation” ); The Charter of Georgia— 1732, 2 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America 765 (Francis Newton Thorpe ed., 1909) (authorization “to encounter, expulse, repel, resist and pursue by force of arms . . . and also to kill, slay and destroy, and conquer by all fitting ways . . . every such person or persons as shall at any time hereafter, in any hostile manner, attempt or enterprise the destruction, invasion, detriment or annoyance of our said colony” ); Grant of the Province of Maine— 1674, 3 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America 1641 (Francis Newton Thorpe ed., 1909) (granting the “Governor or Governors Deputyes their Officers or Ministers . . . for their severall defence and safety encounter repulse and Expell and resist by force of armes as well by sea as by land” ); Charter of Rhode Island and Providence Plantations— 1663, 6 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America 3211 (Francis Newton Thorpe ed., 1909) (providing authorization “to assemble, exercise in arms . . . the inhabitants of the sayd collonie . . . to encounter, expulse, expell and resist, by force of armes, as well by sea as by lance; and alsoe to kill, slay and destroy, by all fitting wayes, enterprises and meaner, whatsoever, all and every such person or persons as shall, aft any tyme hereafter, attempt or enterprize the destruction, invasion, detriment or annoyance of the sayd inhabitants or Plantations” ).

5

See, e.g., Act of Apr. 3, 1778, ch. 33, 1778 N.Y. Laws 62 (regulating the militia of the State of New York); An Act for Regulating, Training, and Arraying of the Militia, and for Providing More Effectually for the Defence and Security of the State, ch. 13, 1781 N.J. Laws 12; An Act for establishing a Militia, 1785 Del. Laws § 7, at 59.

6

For background on the Continental Congresses, see .

7

Report (June 14, 1775), reprinted in 2 Journals of the Continental Congress 1774–1789, 89–90 (Gov’t Printing Office 1905).

8

Commission to George Washington (June 17, 1775), reprinted in 2 Journals of the Continental Congress, supra note 7, at 96.

9

Res. of July 18, Cont.’l Cong. (1775), reprinted in 2 Journals of the Continental Congress, supra note 7, at 188.

10

On July 6, 1775, the Second Continental Congress approved The Declaration of Causes and Necessity of Taking Up Arms, which defended the armed rebellion while expressing a desire to restore the union with the Great Britain. Declaration on Taking Arms, reprinted in 2 Journals of the Continental Congress, supra note 7, at 128. One delegate to the Second Continental Congress referred to that document a “manifesto or declaration or War.” Letter from Joseph Hewes to Samuel Johnston (July 8, 1775), reprinted in 1 Letters of Members of the Continental Congress 160 (Edmund C. Burnett ed., Carnegie Inst. 1921). Later in July 1775, the Second Continental Congress sent a document known as the Olive Branch Petition to King George III suggesting a process for resolving the conflict. Petition to the King (July 8, 1775), reprinted in 2 Journals of the Continental Congress, supra note 7, at 158. King George III ultimately rejected that petition and declared the colonies in rebellion. By the summer of 1776, the Second Continental Congress resolved that the colonies “are and of right ought to be free and independent States,” setting in motion the process for drafting the Declaration of Independence. Resolution of Independence Moved by R.H. Lee for the Virginia Delegation (1776), >https://founders.archives.gov/documents/Jefferson/01-01-02-0159; see Lee Resolution (1776), National Archives, >https://www.archives.gov/milestone-documents/lee-resolution (last visited Sept. 12, 2024).

11

Like declarations of war of the era, for example, the Declaration of Independence contains a list of grievances justifying the United States’ action. Compare The Declaration of Independence (listing a series of twenty-seven complaints justifying the armed rebellion and separation), with, e.g., 11 Cobbett’s Parliamentary History of England 3–6 (1812) (Great Britain’s 1739 declaration of war against Spain based on a list of identified grievances).

12

See, e.g., Daniel J. Hulsebosch, The Revolutionary Portfolio: Constitution-Making and the Wider World in the American Revolution, 47 Suffolk U. L. Rev. 759, 767–68 (2014); William Hall & Saikrishna Bangalore Prakash, The Constitution’s First Declared War: The Northwestern Confederacy War of 1790–95, 107 Va. L. Rev. 119, 143 (2021); Robert J. Delahunty, Structuralism and the War Powers: The Army, Navy and Militia Clauses, 19 Ga. St. U. L. Rev. 1021, 1055 n.127 (2003).

13

Articles of Confederation of 1781, art. IX; 9 Journals of the Continental Congress, supra note 7, at 935 (Second Continental Congress agreeing upon Articles of Confederation). For further discussion of problems in the Articles of Confederation leading to the Constitutional Convention, see .

14

Articles of Confederation of 1781, art. IX (emphasis added).

15

Id. arts. VI, IX.

16

See id. art VI. The Articles also prohibited states from granting commissions to vessels of war and from granting letters of marque and reprisal unless the Confederation Congress declared war or the state was “infested by pirates,” in which case the war vessels could be maintained for so long as “the danger shall continue” or the Confederation Congress determined otherwise. Id.