- Thomas Jefferson to Samuel Kercheval, July 12, 1816

These words, written 190 years ago, are no less relevant today. Our Constitution, while emphatically entitled to reverence, also merits remedial scrutiny. For that purpose a Constitutional Convention under Article V should be called at the earliest time.

It is altogether appropriate to view the Constitution of the United States as a totem to the collaborative wisdom of its framers; a monument to a victorious war of independence; as an exemplar of popular sovereignty and limited government; and, of course, as the innovative blueprint for democracy – a democracy of checks and balances. It is my thesis that executive warmaking is inimical to separation of powers and contrary to the Framers’ collective intent. On the third anniversary of the invasion of Iraq it is appropriate to consider reigning in a seemingly imperial presidency. A definitive view of separation of powers was provided by Madison in Federalist No. 51:

the great security against a gradual concentration of . . . powers in the same department consists in giving to those who administer each department the necessary constitutional means . . . to resist encroachments of the others.

In his “Notes on the State of Virginia” Jefferson offered his working definition of checks and balances:

the powers of government should be so divided and balanced among several bodies . . . as that none could transcend their legal limits, without being effectively checked and restrained by the others.

As for the Framers’ intent to lodge war-making in the Congress and not the president, more will be said.

“A dependence on the people,” Madison cautioned, “is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” (Federalist No. 51) At no previous time in history, when our nation has embarked upon preemptive war-making has the need for instituting appropriate “precautions” appeared so glaringly essential. Our Constitution is a compendium of these precautions, fashioned in recognition of Madison’s prescient warning in No. 51 that “ambition must be made to counteract ambition.” But checks and balances are not self-executing.

It is my premise that however versatile the prose of its draftsmen, it is past time for the Constitution to be revisited and examined through the prism of two centuries of trial and error. Jefferson derided those who thought the document to be carved in stone. As Jefferson explained to Kerchival, “We might as well require a man to wear still the coat which fitted him when a boy.” Experience is the scaffolding upon which wisdom is buttressed. It is the wisdom which now must be brought to the task of updating our charter.

The key, then, to efficacy lies in the Constitution being both the product of the collective practices of the day, and its adaptability to historical fact. Like Jefferson, Madison exulted in the noble “experiment of an extended republic,” chastised those who “rejected [it] merely because it may comprise what is new,” and derided the many who “suffered a blind veneration” for the past that only obscured “their own good sense . . . and the lessons of their own experience.” (Federalist No. 14) Veneration must yield to practicality, and to a more tested pragmatism of a new age of elective war. An eighteenth century Constitution must be retrofitted to the needs of the twenty-first century.

Conventional wisdom views the Constitution of the United States as an unexampled symbol of enduring government. Without disparaging that perception, there can be little downside to rethinking several of its provisions and powers. If, as Jefferson maintained, “the earth belongs . . . to the living; the dead have neither powers nor rights over it,” (Jefferson to Madison, Sept. 6, 1789) the Constitution’s singular place in our republic argues for a Second Constitutional Convention to again visit those provisions squarely implicated by recent history. Neither Jefferson nor I presume that our Constitution has outlived its usefulness. I do suggest, however, that, among several contentious issues pointed up in the years since the founding, the aggrandizement of presidential war powers especially merits attention. Greater clarity, adoption of precise terms, and fixed allocation of responsibility is the goal.

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It is now thirty years since the presidential scholar Arthur Schlesinger wrote The Imperial Presidency in which he catalogued the ever-increasing reach of the executive branch, and focused on presidential warmaking as the well-trod path to despotism. With frightening persistence, presidents have flouted the objective of the Framers to create equal and coordinate branches of government. Repeatedly, presidents have acted upon self-driven policies and seen Congress mechanically acquiesce in faits accomplis. This, despite Madison’s understanding that the separate branches of government were afforded, as he pointed out in Federalist No. 51, “necessary constitutional means . . . to resist encroachments of the others.” “How,” Madison asked, “are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves?” (Federalist No. 49) This “appeal,” of course, alludes to the amendment process that is spelled out in Article V of the Constitution. Jefferson had no doubt “of the expediency of calling a convention, at a proper season, to fix our form of government.” I contend for an amendment to Article II, Section 2, so as to forever condition invocation of the commander-in-chief clause upon a declaration of war by Congress. Never have Madison’s words proven more telling: “The Constitution supposes, what the History of all Govts. demonstrates, that the Ex[ecutive] is the branch of power most interested in war, & most prone to it.”

In the last half-century we have seen Harry Truman’s “police action” in Korea; Lyndon Johnson’s “effort to try to halt communist aggression” in Vietnam; Richard Nixon’s desperate bombing of Cambodia; Ronald Reagan’s deployments in Lebanon and Grenada; George H. W. Bush’s belligerent kidnapping of Manuel Noreiga in Panama, and his subsequent Gulf War; and Bill Clinton’s military actions in Somalia and Haiti. While not exhaustive, each of these incursions bears the same extra-constitutional hallmarks: no congressional consultation, deliberation or, most importantly, no declaration of war. In each instance the war initiating power reserved to Congress was arrogated by the president by the simple invocation of the commander-in-chief clause. Modern presidents have acted in the conviction that this clause subsumes war-making power. When a number of House members challenged presidential war-making in the Persian Gulf, a District Court judge in Washington held, in dicta, that if the president had the

sole power to determine that any particular offensive military operation, no matter how vast, does not constitute war-making but only an offensive military attack, the congressional power to declare war will be at the mercy of a semantic decision by the Executive. Such an “interpretation” would evade the plain language of the Constitution, and it cannot stand. [Dellums v. Bush, 752 F.Supp. 1141, 1145 (1990)]


In Federalist No. 69 Alexander Hamilton counseled that the larger power “of the British king extends to the declaring of war . . . .” Differentiating “declare” from “conduct,” Hamilton, in Federalist No. 74, went on to explain, “the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.” The Hamiltonian view was shared by Madison: “Those who are to conduct a war [viz., the commander-in-chief] cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued or concluded.”

Thomas Jefferson, while admittedly not wedded to “sanctimonious reverence,” for an enduring Constitution, never questioned that “Congress alone is constitutionally invested with the power of changing our condition from peace to war.”

Hamilton, a staunch proponent of a quasi-monarchical presidency, nevertheless argued, in Madisonian terms, that the authority to declare war must mean, “when the nation is at peace to change that state into a state of war . . . belongs to Congress only . . . .”

Madison’s position that “executive powers . . . do not include the Rights of war & peace . . . but . . . should be confined and defined” (1 Records 70) is frequently quoted to argue for the exclusivity of the congressional role. The Framers, however, despite their common understanding, chose neither to “confine” nor “define” the war powers. They reasoned: war initiating went to congress and war conducting to the executive in his capacity as commander-in-chief. It is the resultant shared responsibility and its attendant ambiguity that fosters a blurring of functions and a persisting rivalry between the two political branches. Thus, the seeds of conflict were planted unwittingly in the very text of the Constitution, frustrating Madison’s admonition and inviting two centuries of presidential aggrandizement. This less than precise allocation is antithetical to Madison’s thesis. Madison offered his confine-define formulation in an effort to lodge distinct authority where it belonged and also to preclude the very overreaching that resulted.

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I propose to amend Article II, Section 2 of the Constitution to make manifest that the president’s power to command military forces is expressly conditioned upon Congress’ declaration of war or national emergency [new language in italics]:

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[;], and as such shall have Power to command said Forces when a State of War or national emergency is declared by the Congress; . . . .

By this means, the term commander-in-chief would no longer be misconstrued nor misapplied by presidents bent on unilateral warmaking. The principal authority of Congress to determine upon a course of war (as set forth in Article I, Section 8, clause 11 of the Constitution) would thereby be returned to legislative hands and executive usurpation thwarted. War is old but Executive gigantism is relatively new. It can be arrested by but a few words added to the Constitution. Jefferson would be gratified to know that our basic charter is still being studied and refashioned to meet harrowing times.

The Iraq War was an act of autocratic supremicism which a reworked Constitution will never again permit.

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