Presidential wars are relics of King George III’s monarchy which as overthrown on July 4, 1776. The Constitution’s authors understood that war is too important to be left to a single individual or group, and that the congressional personality would foreclose ruinous wars not in self-defense.
The Constitution’s authors unanimously fastened responsibility for taking the nation from a state of peace to a state of war on Congress in the Declare War Clause. The President was prohibited from initiating war as opposed to responding to a sudden attack against the United States or declarations of war against us by a foreign enemy. In the latter cases, the decision or actions which change the condition of the United States from a state of peace to a state or war are not those of the President, whom the Constitution distrusts in such matters, but those of a third party with no incentive to concoct excuses for placing the United States on a war footing.
Commencing war is excluded from the President’s express or implied powers in Article II. And that was not because it was thought an inherent executive power that need not be enumerated. If that were the case, the express Article II power to receive Ambassadors and other Public Ministers would have been superfluous.
President George Washington, who presided over the constitutional convention, and elaborated about responsibility for war:
“The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they have deliberated on the subject and authorized such a measure.”
Alexander Hamilton, the most vocal advocate for a muscular executive branch, explained that the Commander in Chief power in Article II, section 2 was modest. It did not extend to commencing war. Although that power was exercised by the British Monarchy, that model of government was repudiated by the Constitution. Hamilton elaborated in Federalist 69:
“The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.”
James Madison, father of the Constitution, amplified:
“In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture of heterogeneous powers: the trust and the temptation would be too great for any one man: not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy.”
Madison added that the President would concoct excuses for war for self-aggrandizement.
Thomas Jefferson wrote to James Madison on September 6, 1789:
“We have already given, in example one effectual check to the Dog of war, by transferring the power of letting him loose from the executive to the Legislative body, from those who are to spend to those who are to pay.”
James Madison, wrote to Thomas Jefferson on April 2, 1798:
“The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature.”
President Thomas Jefferson wrote to Congress in 1805:
“Congress alone is constitutionally invested with the power of changing our condition from peace to war.”
The Constitution highly disfavors war except in self-defense for manifold reasons. War sounds the death knell to the rule of law. As Cicero observed, “[I]n times of war, the law falls silent.” War legalizes what is customarily first-degree murder, i.e., killings unjustified by reasonably believed imminent threats to life or serious bodily injury. At present, the President of the United States exercises the power to play prosecutor, judge, jury, and executioner to kill any person on the planet that he decides in secret is an imminent danger to the national security based on secret, untested evidence. That unchecked executive power is vastly greater than the tyrannical authorities indicted against King George III in the Declaration of Independence.
During 227 years of national life, Congress has declared war on eleven occasions but for only five distinct wars; and, only in cases of actual or perceived aggression against the United States. Congress declared war against two separate sovereigns in World War II and against five in World War II.
Presidents have commenced wars not in self-defense against scores of state or non-state actors without congressional declarations since World War II.
War also fathers the surveillance state featuring indiscriminate spying on the entire United States population. The Fourth Amendment’s protection against unreasonable searches and seizures crumbles under a national security banner. Executive Order 12333 is exemplary in authorizing warrantless surveillance on the President’s say-so alone. The surveillance state flourishes on fear. Performance in making the nation safer is irrelevant.
Finally, war destroys the Constitution’s separation of powers—a structural bill of rights against tyrannical government—by bloating the executive. James Madison, father of the Constitution, elaborated:
“War is in fact the true nurse of executive aggrandizement. In war a physical force is to be created, and it is the executive will which is to direct it. In war the public treasures are to be unlocked, and it is the executive hand which is to dispense them. In war the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle. The strongest passions, and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honorable or venial love of fame, are all in conspiracy against the desire and duty of peace. Hence it has grown into an axiom that the executive is the department of power most distinguished by its propensity to war: hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence.”
Article II, Section 4 of the Constitution provides that the “President…shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Alexander Hamilton elaborated in Federalist 65 that impeachable offenses:
“…proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”
Article I, Section 2, clause 5 of the Constitution provides that the “House of Representatives…shall have the sole Power of Impeachment.”
Article I, Section 3, clause 6 of the Constitution provides that the “Senate shall have the sole Power to try all Impeachments.”