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Prakash Unleashing

This article argues that under the original meaning of the Constitution, Congress has the sole power to declare war, which includes the power to decide whether the United States will wage war or respond to a declaration of war against it. The article analyzes the textual, structural, and historical evidence from the founding era to support a "categorical theory" of Congress's declare war power. It rejects alternative "formalist" and "pragmatic" theories that give the President independent war powers. The categorical theory holds that any decision by the U.S. to wage war, however expressed, constitutes a declaration of war that requires congressional authorization.

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Prakash Unleashing

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UNLEASHING THE DOGS OF WAR: WHAT THE

CONSTITUTION MEANS BY DECLARE WAR
Saikrishna Prakash
Does Congresss power to declare war extend beyond the ability to issue
formal declarations of war and include the power to decide whether the
United States will wage war? Relatedly, does the declare war power subsume the authority to decide whether the United States will wage war even
when another nation already has declared war on the United States? Using
a host of overlooked historical materials, 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, and any decision to wage
war, however expressed, was a declaration of war. While the commencement
of warfare was the strongest declaration of war because it unmistakably signaled a decision to wage war, other words and deeds could likewise constitute
a declaration of war. The Constitution grants the declare war power to
Congress only, and hence only Congress can decide whether the United States
will start a war or wage war against a nation that already has declared war
against the United States. Under the original Constitution, the President
cannot make these fateful choices.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I. THE CATEGORICAL THEORY OF DECLARE WAR . . . . . . . . . . .
A. The Decision to Wage War as a Declaration of War .
B. Constitutional Text . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Constitutional Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. A Unitary War Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Difficulties with the Formalist Theory . . . . . . . . . . . . . . .

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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, Marty Lederman, 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. Thanks to Ana Arboleda, Carolina Bravo-Karimi, and Scott Mason for research
assistance.
Readers might wish to examine two responses to this Article published in this issue of
the Cornell Law Review. See Michael Ramsey, Response, The Presidents Power to Respond to
Attacks, 93 CORNELL L. REV. 169 (2007); Robert J. Delahunty & John Yoo, Response, Making
War, 93 CORNELL L. REV. 123 (2007). I am grateful for their responses and willingness to
reengage in the debate about what it means to declare war, especially as their scholarly
work has greatly influenced my own thinking on these matters. A sur-reply follows their
responses. Saikrishna Prakash, Reply, A Two-Front War, 93 CORNELL L. REV. 197 (2007).
Special thanks to the Cornell Law Review for making this back and forth possible.

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3. Difficulties with the Pragmatic Theory . . . . . . . . . . . . . .

II. THE INITIATION DECLARATION OF WAR . . . . . . . . . . . . . . . . . . .
A. European Usage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. American Usage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Early American Understandings . . . . . . . . . . . . . . . . . . . .
2. American Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. The Constitutions Creation . . . . . . . . . . . . . . . . . . . . . . . .
4. The Constitution in the New Republic . . . . . . . . . . . . . .
III. THE RESPONSE DECLARATION OF WAR . . . . . . . . . . . . . . . . . . . .
A. Text, History, and Response Declarations . . . . . . . . . . .
1. European Understandings . . . . . . . . . . . . . . . . . . . . . . . . .
2. American Understandings . . . . . . . . . . . . . . . . . . . . . . . . .
B. Arguments Against the Idea of Response
Declarations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
IV. SOME CONSEQUENCES OF THE ORIGINAL MEANING OF
DECLARE WAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Implications of the Categorical Theory . . . . . . . . . . . . .
B. Difficulties Associated with the Categorical Theory . .
C. Is the Constitutions Mechanism for Going to War
Outdated? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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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 [t]o declare war2 meant that Congress,
and not the President, would decide when the nation would wage war.
Some scholars argue that Jeffersons reading of declare war was
spectacularly mistaken, at least as a matter of the Constitutions original meaning.3 They believe that the President, as Commander in
1
Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in 15 THE PAPERS
THOMAS JEFFERSON 392, 397 (Julian P. Boyd ed., 1958) (endnote omitted). Jefferson was
likely drawing from William Shakespeare. See WILLIAM SHAKESPEARE, JULIUS CAESAR act 3,
sc. 1, line 273 (Burton Raffel ed., Yale Univ. Press 2006), available at http://shakespeare.mit.edu/julius_caesar/full.html (Marc Antony proclaiming, Cry Havoc, and let
slip the dogs of war).
2
U.S. CONST. art. I, 8, cl. 11 (The Congress shall have Power . . . [t]o declare
War . . . .).
3
See, e.g., ROBERT F. TURNER, REPEALING THE WAR POWERS RESOLUTION 10910
(1991); JOHN YOO, THE POWERS OF WAR AND PEACE 711 (2005); Henry P. Monaghan,
Presidential War-Making, 50 B.U. L. REV. 19 passim (1970); Eugene V. Rostow, Great Cases
Make Bad Law: The War Powers Act, 50 TEX. L. REV. 833, 84857 (1972); John C. Yoo, The
Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L.
REV. 167, 17374 (1996) (arguing that the President may start a war).
OF

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Chief,4 certainly could let slip the dogs of war. The President had
merely to order the Army to invade another nation or the Navy to
attack another nations ships to unchain fully the war dogs. On this
view, the congressional power to declare war poses no barrier to the
Presidents starting a war. Congress merely has the power to issue formal declarations of war, determining whether wartime statutes will
come into play.5 So while the President could take the nation to war,
only Congress could decide that certain wartime powers and limitations will apply. This formalist theory of the declare war power
supposes that congressional declarations of war were always formal
documents of marginal significance.6
Other scholars regard Jefferson as only partially mistaken.7 They
argue that only Congress can take the nation from a state of peace
into a state of war.8 Hence, consistent with the grant of the declare
war power to Congress, the President cannot order the Air Force to
launch a first strike on Pyongyang. Such an order would be contrary
to the constitutional allocation of the declare war power to Congress
because the very act of bombing the North Korean capital would itself
be an informal declaration of war. Bombing would be no less a declaration of war than if the President had uttered the words I declare
war on North Korea. Yet, if North Korea declared war against the
United States first, the President could order the military to wage war
against North Korea without securing a prior congressional declaration of war. The President could order a blockade, a ground invasion,
even a nuclear strike. Why? Because North Korea, through its declaration of war, would have thrust the United States into an unavoidable
war. This pragmatic theory supposes that the declare war power
was irrelevant in this situation because nations could not declare war
in response to other nations who have already declared war.9
4
See U.S. CONST. art. II, 2, cl. 1 (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 . . . .).
5
See Yoo, supra note 3, at 24446.
6
See id. at 247. I call this theory the formalist theory not as a pejorative but merely
because the theory stresses that the declare war power only enables Congress to issue
formal declarations of war. As formalism or formalist are ordinarily used, all three
theories discussed herethe formalist, pragmatic, and categorical theoriesoffer formalist accounts of declare war because each is a theory that takes text, structure, and history
seriously.
7
See, e.g., MICHAEL D. RAMSEY, THE CONSTITUTIONS TEXT IN FOREIGN AFFAIRS 23945
(2007) (arguing that President can wage war in response to another nations declaration of
war); Michael D. Ramsey, Textualism and War Powers, 69 U. CHI. L. REV. 1543, 154950
(2002).
8
See Ramsey, supra note 7, at 1546.
9
Some 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 first on the United
States. See, e.g., MICHAEL J. GLENNON, CONSTITUTIONAL DIPLOMACY 8084 (1990); HAROLD
HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION 7477 (1990); W. TAYLOR REVELEY

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[T]here is nothing to declarethe state of war already exists.10 If

the declare war power is immaterial because the United States is at
war, Congress has no ex ante check on going to war, and the President may prosecute the war without constraint, or so the pragmatic
theory maintains.
Thomas Jefferson was not mistaken on the meaning of declare
waronly Congress has the power to decide when the nation will
wage war. Using untapped eighteenth-century materials, this Article
answers two questions about the original meaning of declare war.
First, did the power to declare war extend beyond the ability to issue
formal declarations of war to include the authority to determine
whether a nation would wage a war? Second, did the power to declare
war encompass the authority to decide whether a nation would wage
war even in those situations where another nation had already declared war?11
This Article answers both questions in the affirmative. While the
ability to issue formal declarations of war certainly was part of the declare war power, that power extended beyond the mere issuance of
formal declarations. Any decision to wage war, however expressed,
was a declaration of war. Contrary to what some might imagine, there
were no prescribed words or phrases that governments needed to utter 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 declare war via informal means than by a formal declaration.
The most forceful and unambiguous declaration of war was the
commencement of general hostilities. In the mid-eighteenth century,
Sir Robert Walpole, commonly regarded as the first English Prime
Minister, observed
that of late most Wars have been declard from the Mouths of Cannons, before any formal Declaration; and, Sir, it is very probable,
III, WAR POWERS OF THE PRESIDENT AND CONGRESS: WHO HOLDS THE ARROWS AND OLIVE
BRANCH? 55115 (1981); Raoul Berger, War-Making by the President, 121 U. PA. L. REV. 29,
3947 (1972); Charles A. Lofgren, War-Making Under the Constitution: The Original Understanding, 81 YALE L.J. 672, 67788 (1972); William Michael Treanor, Fame, the Founding, and
the Power to Declare War, 82 CORNELL L. REV. 695, 74056 (1997).
Other scholars have argued that Congress must make all decisions relating to whether
the nation will wage war. See JOHN HART ELY, WAR AND RESPONSIBILITY 39 (1993); LOUIS
FISHER, PRESIDENTIAL WAR POWER 312 (2d ed. 2004); FRANCIS D. WORMUTH & EDWIN B.
FIRMAGE, TO CHAIN THE DOG OF WAR 7275 (2d ed. 1986).
10
RAMSEY, supra note 7, at 241.
11
A companion essay discusses other questions related to declarations of war. In particular, it considers all of the functions that a declaration of war played in the eighteenth
century, 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 Primer (Sept. 13, 2007) (unpublished manuscript, on file with author).

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that if we are obliged to come to an open Rupture with Spain, our

first Declaration of War made on our Parts will be from the Mouth
of our Cannon.12

Or consider what John Adams wrote during the Revolutionary War.

He opined that the war between England and France was sufficiently
declared by actual hostilities in most parts of the world.13 A little
later, a French statesman noted that hostilities are commonly considered as the strongest declaration of war.14 Nations also regarded a
number of hostile actions short of general warfare as declarations of
war. Among other things, making an alliance with a nation at war was
a declaration of war against that nations foes.15
The declare war power also encompassed the ability to determine whether and how to wage war in response to another nations
declaration of war. Even after another nation had declared war, the
targeted nation had a decision and a possible declaration to make because war was not always an obvious response. An entity with the
power to declare war on behalf of Prussia could decide to wage war
against a nation that had declared war against Prussia. Alternatively,
that entity might decline to declare war, thereby limiting the Prussian
military to defensive measures. At the extreme, Prussia might decide
to sue for peace. Accordingly, an entity empowered to declare war
could decide when and under what circumstances a nation would
wage a war.
This categorical theory regards the declare war power as the
power to control all decisions to enter into a war. The declare war
power included the power to start a warto issue declarations that
start a war, termed here initiation declarations.16 The declare war
power also encompassed the authority to enter a war against a nation
that had already declared warto issue declarations in response to
another nations initiation declaration, termed here response decla-

12
The Second Parliament of George II: Fourth Session (9 of 9), Begins 12/5/1738,
10 THE HISTORY AND PROCEEDINGS OF THE HOUSE OF COMMONS, http://www.british-history.ac.uk/report.asp?compid=37805 (last visited Aug. 25, 2007).
13
Letter from John Adams to Samuel Adams (Feb. 14, 1779), in 3 THE REVOLUTIONARY DIPLOMATIC CORRESPONDENCE OF THE UNITED STATES 47, 48 (Francis Wharton ed.,
Wash. Govt Prtg. Office 1889) [hereinafter REVOLUTIONARY DIPLOMATIC CORRESPONDENCE]. He added, I suspect there will never be any other declaration of war. Yet there is
in fact as complete a war as ever existed. Id.
14
1 JACQUES NECKER, AN ESSAY ON THE TRUE PRINCIPLES OF EXECUTIVE POWER IN
GREAT STATES 273 (London, G.G.J. & J. Robinson 1792).
15
See infra text accompanying notes 11727.
16
See TRAVERS TWISS, THE LAW OF NATIONS CONSIDERED AS INDEPENDENT POLITICAL
COMMUNITIES 6062 (2d ed., London, Longmans, Green & Co. 1875) (noting that declaration of war serves the function of commencing war and noting instances when formal
declaration actually served that purpose).

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rations.17 Finally, the declare war power subsumed the ability to

decide what level of hostilities a nation will bring to bear in a war.
Someone with the power to declare war may declare a limited land or
naval war18 or may declare an all-out 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 the Constitution never grants the Commander in Chief the
power to declare war. Accordingly, the President cannot unilaterally
order an airstrike on Tehran because such an attack would amount to
a declaration of war. Moreover, even if Iran declared war on the
United States, either formally or informally, the President could not
attack Iran merely because the latter had already declared war. The
decision whether to go to war always rests with Congress. Finally, as
part of its authority to declare war, Congress may choose what type of
war to fight. Congress may authorize a general warland, sea, and
airagainst an enemy. Or Congress may authorize only limited offensive measures, such as a sea war only.19 And Congress might
choose not to declare war at all and instead urge the Executive to
negotiate a settlement, leaving the Executive to order defensive measures coupled with treaty talks.20 In sum, under the Constitution, the
decision to wage war, and the type of war to be fought, rests with Congress, creating what we might call a unitary war power.
Early Commanders in Chief well understood that the Constitution did not permit them to wage war unilaterally. In fact, these Presidents believed that they could not wage war even in response to
another nations declaration of war. Though two Indian nations declared war on the United States, President George Washington consistently maintained that Congress had to authorize offensive
measures against these nations. The constitution vests the power of
declaring war in Congress; therefore no offensive expedition of im17
See, e.g., Act of April 6, 1917, 40 Stat. 1, 1 (Resolved . . . That the state of war
between the United States and the Imperial German Government which has been thrust
upon the United States is hereby formally declared . . . .).
18
For example, in 1799, Congress authorized a limited naval war with France. See,
e.g., Non-Intercourse Act, 1 Stat. 613, ch. 2, 1 (1799).
19
See, e.g., id. 5 (allowing naval officers to stop and seize American ships bound for
French ports during the naval war with France); Little v. Barreme, 6 U.S. (2 Cranch) 170,
173, 177 (1804) (discussing the United States limited naval war with France).
20
As discussed in Part III, early Presidents understood that they could not order a
general war against even those nations that had declared war against the United States.
Instead, early Presidents distinguished between offensive and defensive measures. While
the President might authorize defensive measures designed to thwart attacks and repel
invasions, only Congress could authorize offensive measures meant to take the fight to the
enemy. These Presidents believed that only the Congress could authorize offensive measures because only Congress had the power to take the nation to war. See discussion infra
Parts II.B.4, III.A.2.

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portance can be undertaken against the refractory part of the Creek

nation . . . until after [Congress] shall have deliberated upon the subject, and authorized such a measure,21 he observed. Presidents John
Adams, Thomas Jefferson, and James Madison hewed to this line as
well.22 Across these administrations, nations (France, Tripoli, England, Algeria) declared war on the United States, formally and informally, and in each instance, the sitting President went to Congress for
authority to wage war. No early President felt free to wage war merely
because another nation had declared war on the United States. Each
understood that to wage war was to declare it, a power the Constitution granted Congress and not the President.
Part I of this Article considers constitutional text and structure.
Part II, using seventeenth, eighteenth, and early nineteenth-century
historical materials, argues that the power to declare war included the
power to issue initiation declarations. Drawing upon the same set of
materials, Part III contends that the power to declare war included the
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.23
Rather than merely relying upon familiar originalist sources, this
Article unearths the original meaning of declare war by tapping new
sources. First, it examines actual declarations of war that nations issued in the eighteenth century. Second, it considers what a broad
spectrum of Europeans said about declaring warnot just those writers devoted to international law, but monarchs, legislators, ministers,
and historians of the era. Third, it sheds light on American treaties
which contained provisions dependent on the existence of a declaration of war. Fourth, the Article recounts diplomatic letters written
during Americas Revolutionary War. Finally, the Article considers
documents from early administrations in which executive officers, in21
Letter from George Washington to William Moultrie (Aug. 28, 1793), in 10 THE
WRITINGS OF GEORGE WASHINGTON 366, 367 (Jared Sparks ed., Boston, Little, Brown, & Co.
1855), available at http://rs6.loc.gov/cgi-bin/query/r?ammem/mgw:@field(DOCID+@lit
(gw330067)).
22
See infra Part III.A.2.
23
Some caveats are in order. This Article never argues that the original Constitution
(and its meanings) ought to apply today. Instead, the Article makes claims about the late
eighteenth-century meaning of declare war and assumes that this meaning should continue to apply today. Given the central role that originalist arguments have played in war
powers scholarship, the peculiar relevance of the original meaning of the Constitution in
this area is perhaps obvious. Moreover, this Article does not discuss whether the United
States properly declared various wars. That would require an examination of the events
leading up to these wars, an inquiry well outside this Articles scope. Finally, this Article
does not address whether there should be judicial review over whether the political
branches properly declared war.

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cluding Presidents, endorsed the idea that the Constitution created a

unitary war power vested with Congress.
Current events suggest that this is an opportune time to reconsider the meaning of declare war. The Bush Administration maintains that the Constitution empowers the President to start a war.24
Although the Administration secured congressional approval for the
Afghani and Iraqi wars,25 it may yet wage war on another nation without first securing such approval. Indeed, Washington buzzes with
speculation about whether the President will order a military strike on
Iran.26 One reason for such a strike might be the alleged Iranian assistance to Iraqi Shia militias,27 assistance that could be seen as an informal Iranian declaration of war against the United States. An attack on
Iran made without congressional approval would trigger a firestorm
precisely because of profound disagreement about what it means to
declare war.
I
THE CATEGORICAL THEORY

DECLARE WAR

While the ultimate objective of this Article is to establish what

declare war and declaration of war meant in the late eighteenth
century, this Part does not attempt to establish those definitions. It
has more modest objectives: (1) to introduce (without substantiating)
the categorical theory of declare war, namely the idea that the power
to declare war encompassed the power 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 of structure, the formalist and pragmatic theories of declare war lead to incongruous and improbable
allocations of war powers.
A.

The Decision to Wage War as a Declaration of War

In the eighteenth century an entity with the power to declare war

could issue declarations of war. Although declarations of war could
serve many functions, the principal function was to announce that a
nation had chosen to wage war against another nation. Among other
24
See, e.g., Memorandum Opinion from the Office of Legal Counsel to the President,
The Presidents Constitutional Authority to Conduct Military Operations Against Terrorists
and Nations Supporting Them, http://www.usdoj.gov/olc/warpowers925.htm (last visited
Aug. 25, 2007) (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).
25
Cf. Christopher Shea, War Counsel, BOSTON GLOBE, Oct. 23, 2005, at E1.
26
See, e.g., Peter Baker, Dafna Linzer & Thomas E. Ricks, U.S. Is Studying Military Strike
Options on Iran, WASH. POST, Apr. 9, 2006, at A1.
27
See, e.g., Borzou Daragahi, Iran Readies Military, Fearing a U.S. Attack, S.F. CHRON.,
Feb. 21, 2005, at A1.

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things, declarations notified the enemy, the declaring partys own nationals,28 and the rest of the world29 that one nation had decided to
wage war on another.30
In ancient times, heralds sent to the enemy made these declarations.31 Later declarations were written and delivered to the enemy
prior to the beginning of hostilities.32 By the eighteenth century, nations had almost wholly abandoned the practice of giving warning of
impending warfare33 and the practice of issuing formal declarations
waned, although it did not disappear entirely.34
Nonetheless, as shown in Part II, declarations of war continued to
be associated with the onset of war. In particular, it became common
to regard as a declaration of war any words or actions that signaled
that a nation had decided to wage war. These signals 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 remain familiar to this day.
Indeed, if such words are not uttered or written in a war, many are
likely to regard the war as an undeclared war.
Yet declare war was not understood so narrowly in the eighteenth century. Although one could say that wars without formal declarations were undeclared wars, one equally could say that some
declaration of war, be it formal or informal, always coincided with or
preceded the commencement of warfare. In other words, even if
there were no formal declaration of war (as there often was not), nations at war necessarily had informally declared war by their words or
actions.35 Because the decision to wage war was itself a declaration of
war, nations informally declared war in the very act of going to war.
28

See STEPHEN C. NEFF, WAR AND THE LAW OF NATIONS 73 (2005).

See id. at 106 (In practice, declarations were often pitched at least as much to the
world at large as to the enemy state.).
30
See Yoo, supra note 3, at 245. Note that the Roman expression indictio belli,
meaning declaration of war, could be defined as either a pronouncement of hostilities to
Roman nationals or to the enemy. See NEFF, supra note 28, at 28.
31
See NEFF, supra note 28, at 26. According to Neff, the last recorded use of heralds as
a method for declaring war was when Sweden declared war against Denmark in 1657. See

DE GROTIUS 11112
id. at 10405; ERNEST NYS, LE DROIT DE LA GUERRE ET LES PRECURSEURS
(Paris, Durand et Pedone-Lauriel 1882).
32
See NEFF, supra note 28, at 7172; see also NYS, supra note 31, at 10512 (discussing
medieval declarations of war); 2 CORNELIUS VAN BYNKERSHOEK, QUAESTIONUM JURIS PUBLICI
LIBRI DUO 1820 (James Brown Scott ed., Tenney Frank, trans., Clarendon Press 1930)
(1737) (noting various ways that wars begin).
33
See Clyde Eagleton, The Form and Function of the Declaration of War, 32 AM. J. INTL L.
19, 1920 (1938).
34
See THE FEDERALIST NO. 69, at 418, 422 (Alexander Hamilton) (Clinton Rossiter
ed., 1961).
35
See Letter from John Adams to Samuel Adams, supra note 13, at 48.
29

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There were two categories of informal declarations. The first

consisted of 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 written defense of why one nation
would fight another. The second category of informal declarations
consisted of declaring war via some hostile act. An authorized invasion of another nation, even if no formal declaration of war preceded
or followed it, was a declaration of war. If France invaded Holland,
that was a French declaration of war against Holland. An invasion was
an unequivocal declaration of war because it rather unmistakably signaled a resolve to wage war.
Less belligerent acts, such as ambassadorial dismissals, blockades,
and aiding a nation at war, also might serve as informal declarations of
war. When these acts signaled that a nation had chosen to wage war,
individuals regarded these hostile actions as informal declarations of
war.
Another dimension of declarations of war was the decision of
what types of hostile actions to order. Declarations typically commanded a nations land and naval forces to attack the enemy. They
also might authorize private parties to wage war, such as permitting
them to take the enemys naval vessels. Those vested with the declare
war power were authorized to make these crucial decisions.
B. Constitutional Text
The categorical theorys claim about the meaning of declare
war hardly emerges from the constitutional text. After all, the Constitution never defines declare war. Hence, it will be impossible to establish, from an examination of text alone, what declare war means.
The most that can be said at this point is that nothing in the Constitutions text casts doubt on the categorical theory. Thus, if the categorical theory is correct, then Congress may decide whether the nation
will wage war.
Still, a textual theorys plausibility can be judged, in part, by how
well it fits with other textual pieces. The Constitution mentions numerous wartime authorities and restrictions elsewhere. How well do
these other textual pieces cohere with the categorical theory? There
are congressional, executive, federalism, and individual rights pieces.
None of them poses any difficulties for the claim that the original
meaning of declare war was to decide to go to war.

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Consider other grants of authority to Congress. The power to

grant letters of marque and reprisal36 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 harsh than negotiations but less extreme
than a full-scale war.37 In the absence of this separate grant, Congress
likely would have had this power as part of its authority to declare
war.38 The same may be said of Congresss power to regulate captures39the power to declare war arguably encompassed the power to
regulate captures.40 Finally, a separate grant of the power to govern
and regulate the armed forces41 may have been necessary because the
power to declare war, considered by itself, would not have implied a
power to govern and regulate the armed forces, especially in a Constitution that creates a Commander in Chief.42
36
U.S. CONST. art. I, 8, cl. 11 (The Congress shall have Power . . . [to] grant Letters
of Marque and Reprisal . . . .).
37
See REVELEY, supra note 9, at 63. Of course, a nation might both declare war and
generally issue letters of marque and reprisal, in which case the letters would not be a step
toward 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, see Ramsey, supra note 7, at
161319.
38
See 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES
9899 (3d ed., Boston, Little, Brown & Co. 1858) (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. WILLIAM BLACKSTONE, 1 COMMENTARIES *250.
The decision to separately vest the power to issue letters of marque and reprisal likely
resulted from an abundance of cautionex abundati cautela. See HENRY WHEATON, A DIGEST OF THE LAW OF MARITIME CAPTURES AND PRIZES 27 (New York, McDermut & D.D.
Arden 1815).
In much the same way, grants of specific executive powers in Article II can be seen as
already included in the broad 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 B. Prakash, The Presidents Power to Execute the Laws, 104
YALE L.J. 541, 577 (1994).
39
See U.S. CONST. art. I, 8, cl. 11 (The Congress shall have Power . . . [to] make
Rules concerning Captures on Land and Water . . . .).
40
See WHEATON, supra note 38, at 27. It is hardly odd or unique for the Constitution
to make express certain principles that would have been implicit in the grant of authority
to declare war. 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. THE FEDERALIST NO. 41, at 263 (James Madison) (Clinton Rossiter ed., 1961). In
Article I, section 8, clause 11, the declare war power precedes the grants of power over
marque and reprisal and captures, precisely the structure that Madison described.
41
See U.S. CONST. art. I, 8, cl. 14 (The Congress shall have Power . . . [t]o make
Rules for the Government and Regulation of the land and naval Forces . . . .).
42
See U.S. CONST. art. II, 2, cl. 1 (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 . . . .).

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Through its power of the purse,43 Congress may check the Commander in Chiefs conduct of a war. The Constitution prohibits army
appropriations lasting more than two years44a means of ensuring
that Congress retains firm and periodic control of the Armys finances. Because the Army requires a new appropriation every two
years, Congress can defund the Army by failing to pass a new appropriation, effectively precluding the Army from fighting a war. Congress likewise might withhold funds from all branches of the armed
forces and thereby halt the nations participation in any war.45
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.46 The Congresss ability to declare war and its
separate ability to control funding once war is declared provide it two
distinct means of controlling the use of military force. The Constitutions belt-and-suspenders approach is designed to ensure that the
government commences and conducts wars 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 Congresss other war-related authorities casts
doubt on the categorical theory of declare war.
What of the President? Everyone agrees that under the Constitution the President cannot declare war.47 The key issue is to resolve
what words and actions are encompassed within that implied prohibition. If one accepts the categorical theorys definition of declare
war, the President cannot take actions that constitute a declaration of
war. Accordingly, the President cannot commence warfare or engage
in other patently hostile actions that serve as declarations of war. To
take such actions unilaterally would be to assume Congresss power to
declare war.
Nonetheless, the President retains significant military authority.
The Commander in Chief Clause48 that grants the President that fa43
For 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, 134850 (1988).
44
See U.S. CONST. art. I, 8, cl. 12 (The Congress shall have Power . . . [t]o raise and
support Armies, but no Appropriation of Money to that Use shall be for a longer Term
than two Years . . . .).
45
For a longer discussion of this vital principle of congressional control and the role
it played in ratification, see Yoo, supra note 3, at 27988.
46
But see id. at 174 (arguing that impeachment and spending are the exclusive congressional checks on executive war making).
47
In my readings, I have never come across any scholar who argued that the President could declare war. It must also be noted that no President apparently has ever
claimed such authority. None of this denies that there are serious disputes about what it
means to declare war.
48
See U.S. CONST. art. II, 2, cl. 1 (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 . . . .).

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mous title serves several significant purposes, none of which conflicts

with the categorical theory. The Clause makes clear that Congress
does not have the authority to choose a Commander in Chief on its
own. More substantively, it enables the President to control the nations armed forces in times of war and peace, subject to Congresss
constitutional authorities. The Clause also reveals that the President
may command the militia only when the latter is called into federal
service to execute federal law, to suppress rebellions, or to repel
invasions.49
Significantly, the President may order acts of national self-defense, even very destructive acts. Under the categorical theory, the
President does not informally declare war against invading nations by
instructing the armed forces to defend the nations borders against an
armed invasion.50 Likewise, the President does not declare war by instructing the armed forces to act in self-defense. A vessel fired upon
may act to destroy the attacking vessel or plane without thereby declaring war.
The difference between these actions and an unauthorized declaration of war reflects the distinction between acting in self-defense
and acting in a manner that commits the nation to a war. As discussed
in Part III, early Presidents repeatedly distinguished between purely
defensive operations and offensive operations designed to take the
war to the enemy. The former were always permissible, while the latter the Constitution left exclusively with Congress. Hence, fending off
an attack of an aggressor was perfectly acceptable, but the decision to
preemptively wage war was always forbidden. In between were sometimes difficult questions about what military measures Presidents
could order without the resulting conduct of the armed forces rising
to the level of a declaration of war. Admittedly, this distinctionbetween actions that amount to an informal declaration of war and actions that do notwill sometimes be hard to draw in concrete
situations.51 Nonetheless, it is a distinction found in the Constitution
itself. Even though Congress has the power to declare war, it lacks an
exclusive power to control all uses of military force.52 Conversely,
while the President may use military force, the President may not order those uses of force that amount to informal declarations of war.
49
See U.S. CONST. art. II, 2, cl. 1 (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 . . . .) (emphasis added).
50
See infra Part III.A.2.
51
For a little more detail on this issue, see infra Part IV.B.
52
In other words, Congresss exclusive power to declare war does not grant Congress
a monopoly on the ability to order military force. The President has a right to order certain uses of force as well, so long as he does not informally declare war through his orders
to use force.

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1. A Unitary War Power

The Constitution grants Congress the power to decide what type
of war America shall fight. At one extreme, Congress may grant a
letter of marque and reprisal to one individual nursing a grievance
against another nation or its nationals, permitting that individual to
make a reprisal sufficient to compensate for a previous injury.58 This
is perhaps the narrowest form of hostility. At the other extreme is
general warfare with Congress requiring the Commander in Chief
and private citizens to commit any and all hostilities against the enemy. No further congressional escalation is possible.
In between these extremes lie many war measures. For instance,
Congress can authorize some public captures of enemy property, but
not others (as was true in the undeclared war with France during the
late 1790s).59 It can issue general letters of marque and reprisal, permitting any American to capture any and all vessels of a foe. Congress
can order a blockade of the enemys ports, using a combination of the
declare war and marque and reprisal powers. Or it can attempt to
confine a war to certain locations. In this way, Congress can calibrate
the level of warfare that America employs.
Accordingly, the Constitution contemplates that Congress may
decide whether the nation will wage war and what levels of force are
appropriate in that war to achieve American ends. As Justice Samuel
Chase said in Bas v. Tingy,60 Congress is empowered to declare a general war, or congress may wage a limited war; limited in place, in objects, and in time.61 Because the President lacks the power to declare
war, the President lacks the constitutional authority to make these
choices. As Justice William Paterson 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.62 The more general point is
that Congress may decide the parameters of the war. If Congress
grants a letter of marque and reprisal to an individual, the President
cannot issue general letters. If Congress only grants general letters,
the President cannot use the military to wage war. And most obviously, if Congress never declares war, the President cannot decide that
the nation will wage war.
Chief Justice John Marshall neatly summed up the unitary war
power view in Talbot v. Seeman63 when he observed that the [t]he
whole powers of war . . . , by the constitution of the United States,
58
59
60
61
62
63

See U.S. CONST. art. I, 8, cl. 11.

See infra note 311 and accompanying text.
4 U.S. (4 Dall.) 37 (1800).
Id. at 43.
Id. at 45.
5 U.S. (1 Cranch) 1 (1801).

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[are] vested in congress.64 Hence, Marshall had no difficulty concluding that Congress could choose to authorize only limited forms of
warfare.65 Later, in Little v. Barreme,66 the Court, per the Chief Justice,
held that the President could not sanction captures that Congress had
not permitted.67 The only lawful captures were the ones that Congress had specifically authorized. A fortiori, the President could not
have ordered general hostilities because that would have left Congresss decision to wage a limited war against France in utter tatters.68
As a matter of constitutional structure, this allocation of war
power is fundamentally sound because it leaves the decision to go to
war and the question of what level of warfare is appropriate in the
hands of one entity rather than bifurcating those related authorities
between two entities. A unitary war power concentrates responsibility
on Congress and thus does not permit confusion about who is responsible for going to war and who is accountable for the overall level of
force being employed against the enemy. Whether Congress ultimately makes wise decisions or not, at least there is no obscure division of authority that might confuse the people.
2. Difficulties with the Formalist Theory
Recall that the formalist view contends that while only Congress
can issue formal declarations of war, the President can actually start a
war.69 One ambiguity with the formalist position is whether Congress,
in its formal declaration of war, may start a war and order the Commander in Chief to commence hostilities. On the one hand, if the
formalist view denies that Congress may start a war and order hostilities, formalists have the unenviable job of explaining why Congress
lacks such power even though these were established features of formal declarations of war.70
On the other hand, if the formalist theory accepts that Congress
may start a war and order hostilities, then formalists must explain why
the Constitution creates two means of going to war, one a formal congressional declaration of war and the other the Presidents orders to
wage war. The only possible answerthat the Founders wanted to
64

Id. at 28.
See id. at 2829.
66
6 U.S. (2 Cranch) 170 (1804).
67
See id. at 179.
68
See Abraham D. Sofaer, The Presidency, War, and Foreign Affairs: Practice Under the
Framers, 40 LAW & CONTEMP. PROBS. 12, 37 (1976).
69
See supra text accompanying notes 36.
70
See, e.g., His Majestys Declaration of War Against the French King; Together with
the Kings Proclamation for the Distrubtion of Prizes, &c. (May 17, 1756), in 3 NAVAL AND
MILITARY MEMOIRS OF GREAT BRITAIN FROM 1727 TO 1783, at 102, 10203 (Robert Beatson
ed., London, Longman, Hurst, Rees & Orme 1804) (reflecting an order of the English
King to his officers to execute all acts of hostility).
65

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make it easier to go to warseems dubious. It makes far more sense

to suppose that the Founders would want to shield a weak nation from
the ravages of war. Creating two parallel mechanisms for going to war
would thwart this goal.
A greater difficulty with the formalist view is that it imagines an
inexplicable division of war powers. First, proponents of the formalist
theory need to explain why the Constitution does not trust the President with the power to formally declare war. What is it about the
power to formally declare war that makes the President unworthy of
wielding such power, especially when, by hypothesis, the President has
the far more consequential power to start a war? One is hard pressed
to rationalize why the chief executive would be denied the traditional
executive power of formally declaring war while enjoying the more
vital power to wage war.
Second, formalists must explain why the President has the greater
power to start a war but wholly lacks the lesser power to grant letters of
marque and reprisal.71 One can debate the merits of a constitution
that vests 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 fullscale 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 successfully prosecute that war? This is to read the
Constitution as if it swung the door wide open to presidential wars but
simultaneously, inexplicably, and unhelpfully bolted one window shut.
The formalist theory suffers from two additional problems. First,
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 at
will, Congress will lack many 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 the declare war power encompasses. At a minimum, Congress may issue formal declarations of war.
The power to issue such declarations clearly includes the power to
warn of an impending war.72 Hence, a formal declaration of war
might declare that war will occur in ten days. The power to issue formal declarations also encompasses the ability to issue conditional declarations of wara declaration that threatens war unless another
nation meets certain conditions.73 Yet if the President may wage war
without any congressional declaration, Congress will effectively lack
both subsidiary powers.
71

See Yoo, supra note 3, at 251.

See TWISS, supra note 16, at 5860 (noting that declarations traditionally gave notice
of impending war).
73
See 3 GROTIUS, supra note 57, at 63537.
72

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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 Congresss power to issue such a declaration, a President could preempt the debate by immediately waging
war. Likewise, a President could start a war while Congress debated a
proposed conditional declaration of war. In either situation, the
Commander in Chief could preempt any congressional declaration of
war that sought to exercise these two standard functions of a formal
declaration. Even worse, the President could thwart congressionally
enacted declarations of war. For instance, suppose Congress passed 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. Even more incongruous, Congress could issue a conditional declaration, the other
nation might satisfy the ultimatum, and the President might war
against the nation nonetheless. Such an action on the Presidents
part would render Congresss conditional declaration a total nullity.
The point is that if the President may start a war at will, the Congress cannot be described as having a power to issue formal declarations of war that encompasses some of the most basic functions of
formal declarations. Instead, the President will exercise these functions through the Commander in Chiefs supposed ability to wage war
at its 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 the President
can exercise a veto, the Executive lacks a generic power to negate or
undermine congressional powers. The same is true of Congressordinarily it cannot thwart either executive or judicial powers. Hence,
Congress cannot, under the guise of carrying into execution its legislative powers, bar pardons or vetoes.74
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 at his discretion is to endorse mutually incompatible propositions. One of them must give
way, and since the Constitution clearly grants Congress the power to
declare war and does not similarly endorse the claim that the Presi74
See generally Saikrishna Prakash, Regulating Presidential Powers, 91 CORNELL L. REV.
215 (2005) (reviewing HAROLD J. KRENT, PRESIDENTIAL POWER (2005)) (arguing the same).

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dent may start a war, the latter proposition should be regarded with
skepticism. At the very least, that proposition should cede way until
there is evidence justifying the counterintuitive idea that although
Congress has the power to declare war, the President may vitiate aspects of that power by unilaterally starting a war.
The second problem 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.75 For instance, statutes might provide that if there is a
declared war, there will be rationing of materials necessary for the war
effort, a military draft, and emergency 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. Any legislative power to pass laws includes the power to
modify or suspend the operation of such laws depending upon the
state of the world. Hence, Congress could provide that bankruptcy
laws operate in one fashion in times of prosperity but work differently
in times of depression. Or Congress could decree that patent rights
are diminished in certain exigent circumstances. In a similar way,
Congress could provide that emergency powers, measures, and limitations emerge whenever the nation is at war, whether or not Congress
declares war. For instance, Congress could provide that should the
President start a war, there shall be rationing, a draft, and emergency
presidential powers.
If Congress can accomplish the exact same ends without formally
declaring war, that calls into question the usefulness of having a separate power to declare war. The formalist view of declare war is dubious precisely because it imagines that the power to declare war is
rather empty.
3. Difficulties with the Pragmatic Theory
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 Congress to declare war in response because a state of war
already exists between the two nations. In fact, according to the pragmatic theory, the declare war power has absolutely no relevance in
that context because a nation cannot declare war in response to another nations declaration. Rather, the President, as Commander in
75

See supra notes 36 and accompanying text.

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the original meaning of constitutional phrases. The question is

whether there is a choice about whether to wage war even when another nation has declared war on the United States. Once it is understood that a choice exists, 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 includes
the power to decide to wage war, any decision to wage war must be left
to Congress, the only entity empowered to declare war.
II
THE INITIATION DECLARATION

WAR

Recall that the formalist theory claims that the power to declare
war was nothing more than a power to issue formal declarations.78
The declare war power did not include the ability to decide whether
to wage war.79 The formalist view also denies that nations declared
war by entering a war. If a nation did not issue a document that expressly declared war, that nation had not declared war.80
Contrary to what the formalist theory supposes, evidence from
the seventeenth, eighteenth, and nineteenth centuries establishes that
Europeans and Americans repeatedly used declare war or declaration of war to encompass much more than formal declarations of
war. These figures recognized as a declaration of war any signal that a
nation had elected to wage war, however expressed. Consistent with
this usage and the Constitutions allocation of the declare war
power, the Founders understood that Congress would decide whether
the nation would wage war. Finally, the Founders rejected the idea
that the President may take the nation to war. They realized that if
the Commander in Chief starts a war, the President usurps Congresss
exclusive power to declare war.
A. European Usage
From ancient times, declarations of war were signals that a nation
had chosen to wage war. The Romans formally declared war prior to
the commencement of warfare.81 They gave advanced warning to
their enemy presumably because they thought this was the honorable
thing to do82 and because the warning might cause the other nation
78

supra Part I.C.2.

id.
80
supra text accompanying note 75.
81
J.W. RICH, DECLARING WAR IN THE ROMAN REPUBLIC
RINE EXPANSION 56 (1976).
82
See id.
79

See
See
See
See

R
IN THE

PERIOD

TRANSMA-

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to sue for peace. As one might expect, there were exceptions to the
practice of advance warning.83
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 advanced
warning came at too high a cost. They would lose the element of surprise, and with it, perhaps the war as well. Hence, the practice of
issuing formal declarations of war that gave advanced warning fell into
disuse. While formal declarations of war could still serve that purpose,
they rarely did.
Though formal declarations of war and the decision to wage war
were not as closely associated with each other, the link between them
was never totally severed. Europeans continued to associate a nations
decision to wage war with some sort of declaration of war, either formal or informal. Historian Stephen Neff notes that by the eighteenth
century, [i]n practice, it came to be accepted that any unambiguous
sign or signal of an intention to resort to war could function as a declaration of war.84 Indeed, as discussed below, most wars were first
declared via some hostile signal rather than by a formal declaration of
war. A nation might issue a formal declaration of war years after an
informal declaration, if at all.
Still, there was nothing truly new about this practice of informal
declarations because from ancient times nonverbal signals had served
as declarations of war. The Romans declared war by throwing an irontipped or fire-hardened wood spear into enemy territory.85 When an
enemy state was not adjacent, the Romans designated a spot in the
Roman forum as enemy territory and threw the spear into that
ground.86 In medieval times, the unfurling of flags and the sending of
a bloody glove (throwing down the gauntlet) served as declarations.87 Non-European nations had similar war declaration signals.
For instance, Tripoli declared war by cutting down a nations flag.88
Seventeenth and eighteenth-century Englishmen well understood
that hostile actions could 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
83
84
85
86
87
88

See id.
NEFF, supra note 28, at 10809.
See 1 LIVY, THE HISTORY OF ROME 49 (Valerie M. Warrior trans., 2006).
NEFF, supra note 28, at 28.
Id. at 72.
See JOSHUA E. LONDON, VICTORY IN TRIPOLI 95 (2005).

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in consequence of that . . . by a formal declaration . . . .89 After an

Admiral destroyed a Spanish fleet in 1718, he argued that the destruction of the Spanish fleet was not to be interpreted into such a
declaration [of war].90 His denial confirmed that first strikes were
normally seen as declarations of war. Discussing the French and Indian war, one author from the era noted that a French armada had
sailed toward America to strike some important blow, that might
serve for a declaration of war.91 Lord Dartmouth, the Secretary of
State for the Colonies, noted in mid-1775 that there was evidence of
an open and declared war against Great Britain.92 Presumably he
was referring to, among other things, the famous spring and summer
battles, such as the Battles of Lexington and Bunker Hill. A 1795
book argued that Prime Minister William Pitt had tried to provoke a
formal French declaration by acts which were in truth and substance,
a declaration of it on his own.93
Members of Parliament commonly voiced the view that hostile
signals served as declarations of war. Sir Robert Walpoles comments
are particularly telling. Speaking in the Commons, Walpole observed
in 1738 that of late most Wars have been declard from the Mouths of
Cannons, before any formal Declaration and that if war with Spain
occurred, it was very likely that England would begin it in that same
way.94 Walpoles comments were hardly isolated. In 1664, Prince Rupert told Parliament that the violent acts of a Dutch admiral were a
denunciation of War.95 In 1677, a member of the Commons
claimed [i]s not our men going into France as much a Declaration of
War, as the Motion of sending Money into Germany [to fund a war
there]?96 The next year a member noted that [i]t is not always requisite in War, that there should be denunciatio belli. . . . When 4 or
500 men declare War, and the King gives his consent to it, the King of
89
2 WILLIAM TEMPLE, THE WORKS OF SIR WILLIAM TEMPLE, BART. 259 (London, S.
Hamilton 1757).
90
J.F. MAURICE, HOSTILITIES WITHOUT DECLARATION OF WAR 1415 (London, Her
Majestys Stationery Office 1883).
91
1 JOHN ENTICK ET AL., THE GENERAL HISTORY OF THE LATE WAR 121 (London, Edward Dilly & John Millan 1763).
92
Letter from Earl of Dartmouth to General Howe (Sept. 22, 1775), American
Archives, Documents of the American Revolution, http://colet.uchicago.edu/cgi-bin/
amarch/getdoc.pl?/projects/artflb/databases/efts/AmArch/IMAGE/.7206.
93
ROBERT ADAIR, A WHIGS APOLOGY FOR HIS CONSISTENCY 84 (London, J. Debrett
1795). Later, the book argued that the insulting dismission [sic] of M. Chauvelin [the
French Ambassador to England] was the substantial declaration of [war]. Id. at 103.
94
See supra note 12 and accompanying text.
95
3 ROBERT PHILLIMORE, COMMENTARIES UPON INTERNATIONAL LAW 88 (2d ed.,
London, Butterworths 1873).
96
4 ANCHITELL GREY, DEBATES IN THE HOUSE OF COMMONS, FROM THE YEAR 1667 TO
THE Y EAR 1694, at 332 (1769), available at http://www.british-history.ac.uk/report.asp?compid=40399 (debate of March 29, 1677).

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France will ask you no more . . . . Tis now an actual declared War.97
Another claimed that if [w]ar is actually made . . . tis then in effect
declared.98 And a third said that war had been proclaim[ed] . . . by
our sending men into Flanders, to assist the Spaniards.99 In 1770, a
member complained that the English ought to have regarded Spanish
threats and actions relating to the Falklands as the most explicit and
effectual declaration of war.100 Speaking of Spanish conduct in 1779,
a member asserted that they were a positive declaration of war . . .
only reserving to themselves the precise period, when and where to
strike the first blow.101
As one might expect, English monarchs shared the view that hostile signals were declarations. In 1689, William III regarded the War
to be so much already declard by France against England.102 France
did not formally declare war until a month later,103 so William presumably referred to French hostilities. Similarly, George III treated a
clash between French and English ships in July 1778 as evidence that
the French had cast off the Mask and declared war.104 In both cases,
the French had declared war because their actions revealed that they
had chosen to wage war.105
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
master would consider the first gun that was fired as a declaration of
War.106 In 1788, hostilities that broke out between Russia and Sweden were considered and treated by each as a declaration of war.107
97
5 id. at 161, available at http://www.british-history.ac.uk/report.asp?compid=40984
(debate of February 18, 1678).
98
Id. at 261, available at http://www.british-history.ac.uk/report.asp?compid=40989
(debate of March 19, 1678).
99
Id. at 248, available at http://www.british-history.ac.uk/report.asp?compid=40988
(debate of March 15, 1678).
100
Speech of Colonel Barre (1770), in 2 THE ELOQUENCE OF THE BRITISH SENATE 74,
75 (William Hazlitt ed., Brooklyn, Thomas Kirk 1810).
101
12 THE PARLIAMENTARY REGISTER 138 (London, J. Almon 1779).
102
The Convention Parliament (William): The Convention becomes a Parliament, Begins 20/2/1689, 2 THE HISTORY AND PROCEEDINGS OF THE HOUSE OF COMMONS, http://
www.british-history.ac.uk/report.asp?compid=37645 (last visited Aug. 25, 2007).
103
11 THE HISTORIANS HISTORY OF THE WORLD 601 (Henry Smith Williams ed., 1904).
104
See Letter from the King to Lord North (July 18, 1778), in 4 THE CORRESPONDENCE
OF KING GEORGE THE THIRD FROM 1760 TO DECEMBER 1783, at 180, 180 (John Fortescue ed.,
1928).
105
English courts apparently shared the same understanding of declare war voiced
in Parliament and by monarchs. See RAMSEY, supra note 7, at 22526 (Where is the difference, whether war is proclaimed by a Herald . . . or whether war is announced by royal
ships, and whole fleets, at the mouths of cannon? (quoting The Maria Magdalena, 165 Eng.
Rep. 57, 58 (1779))).
106
3 PHILLIMORE, supra note 95, at 96.
107
THE ANNUAL REGISTER, OR A VIEW OF THE HISTORY, POLITICS, AND LITERATURE, FOR
THE YEAR 1788, at 7576 (London, J. Dodsley 1790).

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The Ottomans warned Napoleon that any attack on Egypt would be a

declaration of war.108 Emperor Alexander of Russia noted that Napoleon by a sudden attack on our troops at Kowno, has declared
war.109
During its war with virtually all of Europe, Republican France repeatedly regarded hostile acts as declarations. 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.110
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.111 Consistent with that legislators assertion,
Frances formal declaration asserted that English acts of hostility
were the equivalent to a declaration of war.112 Frances formal declaration against Spain likewise accused Spain of declaring war by its
hostilities.113
As the above discussion reveals, a number of hostile signals falling
short of actual warfare were regarded as declarations of war. For instance, a nations issuance of general letters of marque and reprisal
was a declaration of war.114 These letters authorized individuals to
capture enemy ships, in return for which the capturing party would
share in the proceeds from the sale of the captured goods.115 If a
nation generally authorized its populace to capture ships of another
nation, the first nation clearly had decided to wage war. Likewise, individuals understood that a blockade could serve as a declaration of
war,116 for it suggested that the blockading nation had decided to
wage war against the victim.
108
See 4 WALTER SCOTT, THE LIFE OF NAPOLEON BONAPARTE, EMPEROR OF THE FRENCH
9091 (Edinburgh, Ballantyne & Co. 1827). Egypt was then a part of the Ottoman Empire.
109
MAURICE, supra note 90, at 44.
110
Decree of War Against the King of Hungary and Bohemia (Apr. 20, 1792), in 1 A
COLLECTION OF STATE PAPERS RELATIVE TO THE WAR AGAINST FRANCE 18, 19 (London, J.
Debrett 1794) [hereinafter A COLLECTION OF STATE PAPERS].
111
EXTRACTS FROM THE DISCUSSION IN THE SITTING OF THE CONVENTION OF FEBRUARY 1,
ON THE DECLARATION OF WAR AGAINST ENGLAND AND HOLLAND, in A COLLECTION OF ADDRESSES TRANSMITTED BY CERTAIN ENGLISH CLUBS AND SOCIETIES TO THE NATIONAL CONVENTION OF FRANCE 148, 149 (2d ed., London, J. Debrett 1793) [hereinafter A COLLECTION OF
ADDRESSES].
112
Decree Which Declares that the French Republic Is at War with the King of England and the Stadtholder of the United Provinces, in A COLLECTION OF ADDRESSES, supra
note 111, at 157, 161.
113
Declaration of War by France Against Charles IV, King of Spain, in 1 A COLLECTION
OF STATE PAPERS, supra note 110, at 98, 99.
114
See NEFF, supra note 28, at 109; see also H. W. HALLECK, INTERNATIONAL LAW 47073
(New York, D. Van Nostrand 1861).
115
See NEFF, supra note 28, at 109.
116
See 2 WILLIAM SMYTH, LECTURES ON MODERN HISTORY, FROM THE IRRUPTION OF THE
NORTHERN NATIONS TO THE CLOSE OF THE AMERICAN REVOLUTION 385 (London, William

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Another measure nations regarded as a declaration of war was

aiding a warring nation when there was no preexisting obligation to
do so.117 For instance, if one nation made a treaty of alliance with a
nation at war, the other warring nation generally viewed the treaty as a
declaration directed against it. During the Revolutionary War, England warned the Dutch that if they ever made a treaty with the rebellious Americans, England would regard it as a commencement of
hostilities and a declaration of war.118 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.119 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?120 Tippu Sultan, the scourge of the English in southern India, was said to have
made the equivalent to a public, unqualified, and unambiguous declaration of war by making a treaty with France and by admitting its
soldiers into his army.121 In 1807, the English said that the Dutch had
declared war against England by making a treaty with the French
while England and France were at war.122
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).123 One Englishman said the notification was justly considPickering, J & J.J. Deighton 1840) (describing American colonists as likely to perceive the
blockade of Boston as a declaration of war); Appendix (Nov. 1774), American Archives,
Documents of the American Revolution, http://colet.uchicago.edu/cgi-bin/amarch/
getdoc.pl?/projects/artflb/databases/efts/AmArch/IMAGE/.1763 (last visited Aug. 26,
2007) (same); The British American, No. 9 (July 28, 1774), American Archives, Documents
of the American Revolution, http://colet.uchicago.edu/cgi-bin/amarch/getdoc.pl?/
projects/artflb/databases/efts/AmArch/IMAGE/.730 (same); Considerations on the Measures Carrying on with Respect to the British Colonies in North America (Apr. 1774),
American Archives, Documents of the American Revolution, http://colet.uchicago.edu/
cgi-bin/amarch/getdoc.pl?/projects/artflb/databases/efts/AmArch/IMAGE/.1762 (last
visited Aug. 26, 2007) (same).
117
NEFF, supra note 28, at 109.
118
J. Adams to the President of Congress (Dec. 18, 1780), in 4 REVOLUTIONARY DIPLOMATIC CORRESPONDENCE, supra note 13, at 197, 197 (quoting English remonstrance to Holland of December 12, 1780).
119
WILLIAM YOUNG, THE HISTORY OF ATHENS 156 (London, J. Robson 1786).
120
THE ANNUAL REGISTER, OR A VIEW OF THE HISTORY, POLITICS, AND LITERATURE, FOR
THE YEAR 1791, at 211 (2d ed., London, Baldwin, Craddock & Joy 1824).
121
ALEXANDER BEATSON, A VIEW OF THE ORIGIN AND CONDUCT OF THE WAR WITH TIPPOO SULTAUN 11 (London, W. Bulmer & Co. 1800). At the time, the English and the
French were at war.
122
MAURICE, supra note 90, at vivii.
123
STACY SCHIFF, A GREAT IMPROVISATION 139 (2005).

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ered as a declaration of war.124 Another said it was impossible, without insulting in too gross a manner both truth and reason, to deny
that the declaration . . . ought to be received as a true declaration of
war.125 George III himself wrote that the notification is certainly
equivalent to a declaration.126 Commenting much later, jurist and
international law expert Sir Robert Phillimore observed that France
declared war against England when she announced the Treaty, sent
ships to America to wage war, and recalled her ambassador.127
As Phillimores last comment suggests, nations saw the withdrawing of ones own ambassador or dismissing another nations ambassador in antagonistic circumstances as a declaration of war, presumably
because either action signaled the end of parleying and the onset of a
war. When the English demanded that the Genoese dismiss the
French ambassador, the Genoese refused on the ground that to do so
would be positively declaring war against France.128 Likewise, when
France recalled its ambassador from England in 1850, that recall was
the French declaration of war.129
Highly provocative measures might serve as a declaration of war,
at least where they signified that war was forthcoming. For example,
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 ought to consider
the assembling of troops, the formation of magazines, the baking of
biscuits, levies of horses for waggons [sic], as a declaration of war.130

Why was this so? Because when nations amassed troops and supplies
at a tremendous expense, it was clear 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, nations might regard mere evasion or silence as
an implicit declaration of war. In 1756, the Prussian King demanded
that if the Austrian Empress wanted peace, she would have to make an
unambiguous declaration that she was not about to attack Prussia. On
the other hand, he [would] look upon any ambiguous answer as a
124

3 JOHN ANDREWS, A HISTORY OF THE WAR WITH AMERICA, FRANCE, SPAIN, AND HOL212 (London, John Fielding & John Jarvis 1786).
125
THE ANNUAL REGISTER, OR A VIEW OF THE HISTORY, POLITICS, AND LITERATURE, FOR
THE YEAR 1779, at 411 (2d ed., London, J. Dodsley 1786).
126
Letter from George III to Lord North (Mar. 13, 1778), in 2 THE CORRESPONDENCE
OF GEORGE THE THIRD WITH LORD NORTH FROM 1768 TO 1783, at 148, 148 (W. Bodham
Donne ed., London, John Murray 1867).
127
3 PHILLIMORE, supra note 95, at 103.
128
THE CHRONOLOGIST OF THE PRESENT WAR 21112 (London, J.W. Myers 1796).
129
See MAURICE, supra note 90, at 6.
130
6 THE PARLIAMENTARY DEBATES FROM THE YEAR 1803 TO THE PRESENT TIME lxxiii
(T.C. Hansard ed., London, Longman et al. 1806).
LAND

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declaration of war.131 The English gave a similar ultimatum to the

Spanish in 1761. England wanted to know if Spain was contemplating
an alliance with France against England. The English King declared
that he would regard a refusal to answer the question as an aggression on the part of Spain, and an absolute declaration of war.132 The
Spanish ambassador, put off by English haughtiness,133 said that this
English attitude was itself a declaration of war.134 In his formal declaration, George III accused Spain of declaring war in effect with its
response to his query.135 Somewhat comically, the Spanish King issued a formal declaration noting that he had already treated Englands disrespectful query as a declaration of war by England and
that it was unnecessary for England to re-declare war.136
There are sound reasons why a nation would treat silence or evasion as a declaration of war. When a nation demands assurances that
it will not be attacked and such assurances are not given, it reasonably
might conclude that the nation unwilling to give such assurances had
decided to wage war and was merely waiting for a propitious moment
to attack. 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 decided to go to war and had thereby
declared war.
Sometimes nations sought to shift blame for the start of a war by
claiming that some nations action or failure to take an action was a
declaration of war. The Austrian Emperor in 1784 delivered an ultimatum to the Dutch demanding 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.137 Since the
Dutch controlled the Scheld River, the Emperor was acting provocatively. During its war with Europe, France declared that any nation
whose ships transported British goods through a particular sound
131
JOHN ALMON, A NEW MILITARY DICTIONARY 61 (London, J. Cook 1760) (using a
pseudonym).
132
THE ANNUAL REGISTER: OR, THE HISTORY OF THE PRESENT WAR: FROM THE COMMENCEMENT OF HOSTILITIES IN 1755 AND CONTINUED DURING THE CAMPAIGNS OF 1756, 1757,
1758, 1759, 1760 AND TO THE END OF THE CAMPAIGN, 1761, at 248 (London, R. & J. Dodsley
1762).
133
Id. at 24849.
134
Id.
135
THE ANNUAL REGISTER, OR A VIEW OF THE HISTORY, POLITICS, AND LITERATURE, FOR
THE YEAR 1761, at 287 (London, R. & J. Dodley 1762).
136
Id. at 288.
137
4 W. BELSHAM, MEMOIRS OF THE REIGN OF GEORGE III. TO THE SESSION OF PARLIAMENT ENDING A.D. 1793, at 167 (5th ed., London, G.G. & J. Robinson 1795). The Emperor
then sent a ship which the Dutch stopped. But the Emperor shrank from the fight. See id.
at 16878.

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would be regarded as declaring war.138 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.139 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.140 Each of these episodes marked an
attempt to stretch the definition of declare war beyond all limits.
The refusal to satisfy unreasonable demands in no way indicated a
decision to wage, and therefore declare, war. Instead, the extreme
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,141 so only a few comments seem necessary. As
Professor Ramsey has demonstrated, Cornelius Bynkershoek believed
that Article IX of the Treaty of Utrecht used the phrase declare war
as a synonym for commencing a war and not merely as the power to
formally proclaim war.142 Hugo Grotius recounted the Roman practice of declaring war by throwing a spear into enemy territory143 and
also spoke of formal declarations, thus implicitly acknowledging that
there was a category of informal declarations of war.144 Emmerich de
Vattel claimed that when one nation takes up arms against another,
she from that moment declares herself an enemy to all the individuals
of the latter.145 Christian Wolff confirmed that allying with a party to
war was a declaration of war: [H]e who allies himself to my enemy, as
by sending troops or subsidies, or by assisting him in any other way,
declares by that very fact that he wishes to be a participant in the war
carried on against me.146
Though Blackstone said little about declarations, what he did say
confirms that to decide to wage war was to declare it. He noted that
138
See Proclamation (May 15, 1798), in 7 A COLLECTION OF STATE PAPERS, supra note
110, at 83, 83 (London, J. Debrett 1799).
139
Answer of General Mack to General Championet (Nov. 24, 1798), in 8 A COLLECTION OF STATE PAPERS, supra note 110, at 108, 108 (London, J. Debrett 1800).
140
Manifesto of the Sublime Porte, Communicated to Our Esteemed Friend the Minister Plenipotentiary of the Court of Great Britan, in Constantinople (Sept. 11, 1798), in 7 A
COLLECTION OF STATE PAPERS, supra note 110, at 446, 44950 (London, J. Debrett 1799).
141
See Ramsey, supra note 7, at 159095.
142
See 2 VAN BYNKERSHOEK, supra note 32, at 132.
143
See 3 GROTIUS, supra note 57, at 637.
144
See id. at 63637.
145
VATTEL, THE LAW OF NATIONS 399 (London, G.G. & J. Robinson 1797).
146
2 CHRISTIAN WOLFF, JUS GENTIUM METHODO SCIENTIFICA PERTRACTATUM 734, at
377 (Joseph H. Drake & Francis J. Hemelt trans., Clarendon Press 1934) (1764).

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pirates declare war on mankind when they engage in their depredations and that mankind may declare war on them in like manner.147
Clearly, Blackstone referred to hostile actions and not formal declarations, for pirates were not in the habit of issuing the latter. Earlier in
his Commentaries, Blackstone discussed why he (erroneously) believed that formal declarations of war were required under the English system. He continued by saying that wherever the right resides
of beginning a national war, there must also reside a peace power.148
This sentence, coming as it does on the heels of a discussion of the
power to declare war,149 clearly equates declaring war with the right to
begin a war. Like other Englishmen, Blackstone knew that the declare war power included the right to decide whether to wage war.
Jacques Necker, a French statesman who authored a two volume
treatise on executive power, likewise endorsed this common understanding of declare 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 declare[d] war by actually commencing it.150 He later noted that hostilities are commonly considered as the strongest declaration of war.151 Earlier, Necker argued
that the French Constitution contained certain provisions that actually
permitted the King to commence hostilities.152 He claimed that these
provisions were deliberately 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.153 Such wording would have provoked derision precisely because across Europe it was understood that to decide
to wage war was to declare it.154
Neckers observations (and the practices that underlay them)
were confirmed in the writings of nineteenth-century scholars. Georg
Martens noted that some nations insist that they need not declare war
in certain situations because war has been tacitly declared, so that
goods taken in war without a formal declaration did not have to be
restored.155 An Oxford scholar observed that [c]ases have occurred
147

4 BLACKSTONE, supra note 38, at *71.

1 id. at *250.
149
Id.
150
1 NECKER, supra note 14, at 271.
151
Id. at 273.
152
See id. at 27677.
153
Id. at 277.
154
Id.
155
G.F. VON MARTENS, A COMPENDIUM OF
trans., Pall-Mall, Cobbett & Morgan 1802).

148

THE

LAW

NATIONS 282 (William Cobbett

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in which a hostile demonstration has been held to amount to a virtual

declaration of war.156 Francis Wharton, a Department of State solicitor, wrote that a declaration of war . . . may be implied: as where an
act of hostilities takes place which can be explained on no other hypothesis.157 Joseph Chittys comments bear quoting in full. In A
Practical Treatise on the Law of Nations, Chitty writes:
[D]eclarations of war are not construed to take effect merely from
the time when a formal notification of hostility is given; there are
certain preceding acts, of a hostile nature, which are deemed to be
virtually declarations of war . . . .158

Chitty went on to note that when a nation has been injured and does
not receive redress, she is reduced to consider hostilities as virtually
declared.159 Chittys comments, written in the early nineteenth century, nicely sum up the practices of European nations for the previous
two centuries.
All across Europe, monarchs, ministers, legislators, and many
others understood declare war to mean 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 significantly, commencing warfare
against another nation was an absolute and unequivocal declaration
of war.
B. American Usage
Though eighteenth-century America might have seemed far removed from Europe, Americans shared the European understanding
of declare war and declaration of war. They treated documents
that evinced a warring disposition as declarations of war even if the
documents never said as much. Likewise, the commencement of warfare 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 contemplating the Constitution, Americans understood that to commence war was to declare war. 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 confessed his ignorance to the Virginia Lieutenant Governor regarding the ceremony required [i]f war is to be
156

TWISS, supra note 16, at 75.

FRANCIS WHARTON, COMMENTARIES ON LAW 302 (Phila., Kay & Brother 1884).
158
JOSEPH CHITTY, A PRACTICAL TREATISE ON THE LAW OF NATIONS 68 (Boston, Bradford & Read 1812).
159
Id. at 69; see also id. at 70, 80 (discussing virtual or implied declarations of war).
157

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declared at this place.160 Robert Dinwiddie answered, [t]he Method

You are to declare War, is at the head of Your Companies with three
Vollies of Small Arms for his Majestys Health & a successful War.161
In this way, the English ordered Washington to declare warto commence warfarein a particular theater on behalf of the Crown. In
mid-1775, an American pamphleteer claimed that by attempting to
destroy some colonial munitions, British General Thomas Gage had
declared war: The invasion of property, among all Nations, is justly
deemed a declaration of war.162 Richard Henry Lee noted in 1778
that French Admiral DEstaing had declared war against G. Britain
on board his fleet.163 Though France had not (and never would)
formally declared war, orders to commence war were the equivalent.
In 1784, Major-General Peter Muhlenberg wrote that 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.164 Muhlenberg
evidently meant that when Indians beheaded someone, that action indicated a resolve to wage 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 Portugees have declared War
Against us by Seizing Our Vessels in their Ports.165 In 1777, the
American representative in Martinique thought that if England did
not return a ship to the French, the French would deem it allmost a
Declaration of War.166 Indeed, a much larger English seizure later in
the year was met with a French ultimatumany hesitation in re160
Letter from George Washington to Robert Dinwiddie (Aug. 14, 1756), American
Memory from the Library of Congress, http://rs6.loc.gov/ammem/gwhtml/gwseries2.html (for a scan of the original document, follow Letterbook 3, then enter 329
in the text box next to the Turn to image button and click that button).
161
Letter from Robert Dinwiddie to George Washington (Aug. 21, 1756), American
Memory from the Library of Congress, http://rs6.loc.gov/cgi-bin/query/r?ammem/
mgw:@field(DOCID+@lit(lw010217)) (for a scan of the original letter, follow the
IMAGES hyperlink).
162
Junius Americanus, Address to General Gage (May 29, 1775), American Archives,
Documents of the American Revolution, http://colet.uchicago.edu/cgi-bin/amarch/
getdoc.pl?/projects/artflb/databases/efts/AmArch/IMAGE/.3187.
163
Letter from Richard Henry Lee to Francis Lightfoot Lee (July 12, 1778), in 10
LETTERS OF DELEGATES TO CONGRESS, 17741789, at 265, 265 (Paul H. Smith ed., 1983).
164
HENRY A. MUHLENBERG, THE LIFE OF MAJOR-GENERAL PETER MUHLENBERG OF THE
REVOLUTIONARY ARMY 440 (Phila., Carey & Hart 1849). In a similar vein, the Superintendent of Indian Affairs for the Northern Colonies, Sir William Johnson, wrote in 1772 that
the Native Americans considered scalping to be a National Act and Declaration of War.
George H. Bray III, Scalping During the French and Indian War, Archiving Early America,
http://www.earlyamerica.com/review/1998/scalping.html (last visited Aug. 26, 2007).
165
Letter from Abraham Clark to Elias Dayton (Aug. 6, 1776), in 4 LETTERS OF DELEGATES TO CONGRESS, 17741789, at 626, 628 (Paul H. Smith ed., 1979).
166
Letter from Mann Page to John Page (June 9, 1777), in 25 LETTERS OF DELEGATES
TO CONGRESS, 17741789, at 623, 624 (Paul H. Smith ed., 1998).

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turning the ships would be a declaration of war.167 In each of these

situations, Americans saw the seizure as a declaration of war because
of what they thought the seizure signaled, namely recourse to war.
As in Europe, less hostile actions than outright hostilities were
also seen as declarations of war. In 1774, John Adams proposed that if
anyone were arrested in any colony and taken to England for trial,
such action ought to be considered a declaration of war.168 During
the Revolutionary War, Silas Deane reported that while private
Spaniards might lend America ships, the King of Spain would not do
so because that would be the same as a declaration of war.169 Deane
evidently understood that nations generally viewed providing aid to a
party to a war as a declaration of war. In 1787, Ambassador Thomas
Jefferson reported to Foreign Affairs Secretary John Jay that the English had withdrawn from a treaty with France requiring notification
of naval armament.170 Apparently viewing the withdrawal as evidence
of a design to wage war, the French regarded it as a declaration of
war.171
Of course, Americans were well aware of what transpired in England and on the Continent during the Revolutionary War and the
period that followed. They knew that France viewed the English reaction to the notification of the American treaty as a declaration of
war.172 Likewise, Americans knew that the Austrian Emperor had
warned that he would regard Dutch insults to his ships plying the
Scheld River as a declaration of war.173
As in Europe, a document could be a declaration of war even if it
never used the words declare war. One delegate to Congress argued
that the Suffolk Resolves were a declaration of war against England.174
167

Letter from James Duane to George Clinton (Nov. 23, 1777), in 8 LETTERS OF DELECONGRESS, 17741789, at 307, 307 (Paul H. Smith ed., 1981).
168
John Adamss Proposed Resolutions (Sept. 30, 1774), in 1 LETTERS OF DELEGATES
TO CONGRESS, 17741789, at 131, 131 (Paul H. Smith ed., 1976).
169
Letter from Silas Deane to the Committee of Secret Correspondence (Nov. 27,
1776), in 2 REVOLUTIONARY DIPLOMATIC CORRESPONDENCE, supra note 13, at 195, 196.
170
See Letter from Thomas Jefferson to John Jay (Sept. 22, 1787), in 2 MEMOIR, CORRESPONDENCE, AND MISCELLANIES FROM THE PAPERS OF THOMAS JEFFERSON 240, 240 (Thomas
Jefferson Randolph ed., Charlottesville, F. Carr & Co. 1829).
171
See id.
172
See Letter from Richard Henry Lee to Francis Lightfoot Lee, supra note 163, at
26667 (noting that the French considered the Kings message to Parliament a declaration
of war).
173
See Letter from Richard Dobbs Spaight to Alexander Martin (Dec. 18, 1784), in 22
LETTERS OF DELEGATES TO CONGRESS, 17741789, at 79, 7980 (Paul H. Smith ed., 1995).
174
See Joseph Galloways Statement on His Plan of Union (Sept. 28, 1774), in 1 LETTERS OF DELEGATES TO CONGRESS, 17741789, supra note 168, at 119, 120 (describing the
Suffolk Resolves as a declaration of war). The 1774 Suffolk Resolves were a set of resolutions issued by leaders from Suffolk County, Massachusetts. These resolutions denounced
the English Coercive Acts, called for a boycott of English goods, and sought a colonial
militia. See JOSEPH C. MORTON, THE AMERICAN REVOLUTION 140 (2003).

GATES TO

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Another regarded the Declaration Setting Forth the Causes and Necessity of Taking Up Arms as Americas declaration.175 John Adams
argued that if anyone at an international summit denied American
sovereignty, that would be a declaration of war against the United
States.176 As one might imagine, Americans fighting for independence were especially sensitive to denials of sovereignty. Most famously, Americans regarded the Declaration of Independence as a
declaration of war.177
Perhaps the best example of the American conception of declare war comes from John Adams. Writing to his cousin Samuel Adams in 1779, John Adams expressed surprise at the formers failure to
appreciate that France and Britain already had declared war:
Was not war sufficiently declared in the King of Englands speech,
and in the answers of both houses, and in the recall of his ambassador? Has it not been sufficiently declared by actual hostilities in
most parts of the world? I suspect there will never be any other
declaration of war. Yet there is in fact as complete a war as ever
existed.178

Well aware that neither England nor France had issued a formal declaration of war, Adams nonetheless had no difficulty concluding that
both had declared war.
2. American Treaties
Fledgling America took her place on the international stage by
making treaties. Even before the 1783 English Peace Treaty, America
made treaties with France, the Netherlands, and Sweden. After the
Constitutions ratification, the pace of treaty making quickened.179
These treaties provide useful evidence of the meaning of declare
war, confirming that declaration of war was a synonym for the start
of warfare.
175
See Letter from Joseph Hewes to Samuel Johnston (July 8, 1775), in 1 LETTERS OF
DELEGATES TO CONGRESS, 17741789, supra note 168, at 612, 61314 (noting that Congress
recently had published a declaration of war). This 1775 declaration explained to the world
why Americans had taken up arms against England, and some Englishmen apparently regarded it as a declaration of war as well. See Debate, Comments of Lord Mansfield in the
House of Lords (Mar. 14, 1776), American Archives, Documents of the American Revolution, available at http://colet.uchicago.edu/cgi-bin/amarch/getdoc.pl?/projects/artflb/
databases/efts/AmArch/IMAGE/.16027 (saying that Americans will reprint their declaration of war if England wishes to see a list of grievances).
176
See Letter from J. Adams to Vergennes (July 19, 1781), in 4 REVOLUTIONARY DIPLOMATIC CORRESPONDENCE, supra note 13, at 591, 593.
177
See Yoo, supra note 3, at 24647.
178
Letter from John Adams to Samuel Adams, supra note 13, at 48.
179
See infra notes 18691 and accompanying text (discussing the various treaties
signed before and after the ratification of the Constitution).

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looking nothing like a formal declaration of war as declarations of war

nonetheless.197
3. The Constitutions Creation
We have seen that in Europe and in America it was well understood that waging a war was a declaration of war. Moreover, hostile
actions short of warfare were understood as declarations when they
signaled that a nation had decided to wage a war. Hence, a nation
might declare war by making a treaty with a warring nation or recalling an ambassador.198 While the Founders might have incorporated
the narrow, formalist understanding of declare war, the evidence indicates that they incorporated the broader definition of declare war. As
discussed below, substantial founding era evidence supports the idea
that to start a war was to declare war. More importantly, there is much
support for the derivative proposition that Congress, and not the President, could decide whether the nation would wage war. Finally, there
is no evidence that anyone, either in Philadelphia or in the states,
read declare war in the Constitution as only authorizing Congress to
issue formal declarations of war.
When it comes to the genesis and meaning of declare war,
scholars and commentators have extensively examined the Philadelphia Convention.199 Nonetheless, there is more relevant evidence
here than many suppose. Most powerfully, James Madison observed
that the use of force against a delinquent state . . . would look more
like a declaration of war[ ] than an infliction of punishment.200 This
was Madisons way of denouncing the Articles of Confederation because it regulated the states as political entities rather than regulating
individuals.201 In any event, Madison clearly understood that the use
of force could constitute a declaration of war. Less obvious, but no
less illuminating, was Alexander Hamiltons complaint that the Arti197
American treaties were not the only ones to embrace the categorical theory of declare war. A 1786 treaty between France and England was understood as providing that
the recall of an ambassador was a declaration of war. See Treaty of Navigation and Commerce Between His Britannic Majesty and the Most Christian King art II, Gt. Brit.-Fr., Sept.
26, 1786, in 1 GEORGE CHALMERS, A COLLECTION OF TREATIES BETWEEN GREAT BRITAIN AND
OTHER POWERS 517, 519 (London, 1790); see also THE SPEECHES OF THE RIGHT HONOURABLE
CHARLES JAMES FOX 498 (1853). The treaty itself did not expressly provide that the recall
would be a declaration of war but made it clear that the recall was equivalent to the commencement of hostilities, which was itself a declaration of war. See Treaty of Navigation
and Commerce Between His Britannic Majesty and the Most Christian King art II, Gt. Brit.Fr., Sept. 26, 1786, supra, at 517, 519.
198
See supra text accompanying notes 11729.
199
See, e.g., FISHER, supra note 9, at 312; Yoo, supra note 3, at 25669.
200
1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 54 (Max Farrand ed.,
1966).
201
See generally ARTICLES OF CONFEDERATION (defining the rights of the states and their
relationships as states).

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cles of Confederation barred the states from having navies or armies

before war is actually declared.202 Hamilton thus equated peacetime with the period before war was declared because the Articles
prohibition only applied during peacetime.203 His equation only
makes sense given the established sense that waging war was itself a
declaration of war. Had Hamilton been using the formal, narrow definition of declare war his reading of the Articles would have been
quite mistaken because, as Hamilton clearly understood, wars were
typically fought without a formal declaration.204
Of course, the famous change of language in Article I, section 8
from make war to declare war205 was accompanied by comments
suggesting the President should not be able to start a war. James
Madison, Elbridge Gerry, Roger Sherman, and George Mason all opposed giving the President the power to wage a war, with only Pierce
Butler speaking in favor of the proposition.206 But more interestingly,
scholars have overlooked a statement from Oliver Ellsworth tucked
away in that debate that [w]ar . . . is a simple and overt declaration,
while peace talks often require secrecy.207 Ellsworth could be read as
suggesting that warfare was itself a declaration of war.
Subsequent discussions suggest that delegates understood that
the grant of declare war authority meant that Congress could start a
war. In a discussion of the Senate majority necessary to secure a peace
treaty, Gouverneur Morris argued that the Legislature will be unwilling to make war if peace treaties were hard to approve.208 He
thereby implied that Congress could decide whether the nation would
go to war. Another delegate argued that both chambers might require secrecy, as when [m]easures preparatory to a declaration of
war might be necessary.209 This point was premised on the notion
that the declaration would commence the war and that secrecy would
be necessary until either warfare had begun or the other side had
been formally notified of the declaration. If declarations did not sig202

1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 200, at 298.
See ARTICLES OF CONFEDERATION, Art. VI (No vessels of war shall be kept up in time
of peace by any state, except such number only as shall be deemed necessary by the United
States, in Congress assembled, for the defense of such state, or its trade; nor shall any body
of forces be kept up by any state in time of peace, except such number only, as in the
judgement of the United States, in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such state . . . .).
204
See THE FEDERALIST NO. 25, at 165 (Alexander Hamilton) (Clinton Rossiter ed.,
1961).
205
2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 200, at 31819.
206
See id.
207
Id. at 319.
208
Id. at 548.
209
Id. at 613.

203

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nal a decision to wage war but were instead meant to trigger the application of domestic statutes, secrecy would have been pointless.
Scholars likewise have combed through the ratification debates.
James Wilsons claimthat because Congress had the power to declare war, no one man could involve the nation in a waris well
known.210 Slightly less well known are the comments of Pierce Butler
at the South Carolina ratifying convention. Butler, who in Philadelphia actually had sought to grant the President the power to make
war, noted that some delegates had opposed granting the President
the war power because it would grant him the influence of a monarch, having an opportunity of involving his country in a war.211
There are many other hitherto unknown statements pointing in
the same direction. In Massachusetts, Rufus King and Nathaniel
Gorham described the bicameralism and presentment needed to declare war and claimed that as war is not to be desired and always a
great calamity, by increasing the Checks, the measure will be difficult.212 Clearly, King and Gorham, two delegates to the Philadelphia
Convention, thought that America could not wage war unless Congress first declared it. In New York, Robert Livingston talked of Congress enter[ing] into a war to protect the fisheries,213 thereby
confirming that Congress would decide whether to go to war. Livingston was Chancellor of New York and had served as the Congresss
Secretary of Foreign Affairs.214 His reading of the Constitution was
thus the product of extensive legal and foreign affairs experience. In
North Carolina, James Iredell noted a very material difference between England and America in that the President could not declare
war.215 If the proposed Constitution had incorporated the formal
reading of declare war, it would be impossible to describe it as embodying a very material difference from its English counterpart on
210
See 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS, ON THE ADOPTION OF THE
FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA,
IN 1787, at 528 (Jonathan Elliot ed., 2d ed. Washington 1836) [hereinafter THE DEBATES IN
THE SEVERAL STATE CONVENTIONS].
211
4 id. at 263. In a private letter, Pierce Butler discussed the Englishs Crowns war
authority: The King has the sole Right of declaring War or making Peace, so that the lives
of thousands of His Subjects are at His will. Letter from Pierce Butler to Weedon Butler
(May 5, 1788), in 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 301, 302 (Max
Farrand ed., 1911). Butler thereby equated declaring war with actually fighting a war, a
conflation only possible if one adopts the broad definition of declare war. Under the
narrow view, the entity that merely declares war is not the one who actually puts peoples
lives in jeopardy.
212
See Rufus King and Nathaniel Gorham, Response to Elbridge Gerrys Objections, in
4 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 186, 190 (John P.
Kaminski & Gaspare J. Saladino eds., 1997).
213
2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS, supra note 210, at 292.
214
Robert Livingston, ushistory.org, http://www.ushistory.org/declaration/related/
livingston_r.htm (last visited Sept. 6, 2007).
215
4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS, supra note 210, at 107.

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Hamiltons views are especially probative, given that some scholars regard him as advancing overly expansive views of executive power.243
His antagonist, Helvidius, agreed with Hamilton on this point.
Writing as Helvidius, James Madison argued that [w]ar is in fact the
true nurse of executive aggrandizement.244 Free states act to counter
this tendency by granting the power to declare war to the legislature.245 Moreover, Madison wrote that those who are to conduct a war
cannot be proper judges of whether a war ought to be commenced, continued, or concluded.246 Madison was praising the grant of declare
war power to Congress and confirming that to start a war was to declare it.
Supreme Court Justice James Wilson, in his famous Lectures on
Law, adopted the view that declare war encompassed the power to
start a war. He praised America for having returned to the ancient
Anglo-Saxon constitution where the Wittenagemote, the early English
239

See id. at 367.

Id.
241
Letters of Pacificus, No. 1 (June 29, 1793), in 4 THE WORKS OF ALEXANDER HAMILTON 432, 443 (Henry Cabot Lodge ed., 1904).
242
No. 1, Examination of Jeffersons Message to Congress of December 7, 1801, in 8
THE WORKS OF ALEXANDER HAMILTON, supra note 241, at 246, 249.
243
See, e.g., David Gray Adler, The Steel Seizure Case and Inherent Presidential Power, 19
CONST. COMMENT. 155, 17073 (2002).
244
Helvidius, No. 4 (Sept. 14, 1793), in JAMES MADISONS ADVICE TO MY COUNTRY
107, 107 (David B. Mattern ed., 1997).
245
See id.
246
Helvidius, No. 1 (Aug. 24, 1793), in JAMES MADISONS ADVICE TO MY COUNTRY,
supra note 244, at 107, 107.
240

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Decree Which Declares that the French Republic is at War with the King of England and the Stadtholder of the United Provinces, in A COLLECTION OF ADDRESSES, supra
note 111, at 157, 161.
264
1 W. H. Fitchett, HOW ENGLAND SAVED EUROPE 37 (1900).
265
See Prakash, supra note , at 209 n.73 (citing more wars).
266
See Letter from John Adams to Samuel Adams, supra note 13, at 48.
267
See THE ANNUAL REGISTER, OR A VIEW OF THE HISTORY, POLITICS, AND LITERATURE,
FOR THE YEAR 1788, supra note 107, at 7576.
268
See, e.g., 1 NECKER, supra note 14, at 273; Letter from John Adams to Samuel Adams,
supra note 13, at 48.

263

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tion. Nelson was exasperated because these generals refused to seize

French vessels, claiming that their King had not yet declared war.269
Nelsons view of the matter bears quoting in full:
I have been thinking all night of the General and Duke of Sangros
saying, that the King of Naples had not declared war against the
French. Now, I assert that he has, and in a much stronger manner
than the ablest minister in Europe could write a declaration of war.
Has not the King received, as a conquest made by him, the Republican flag taken at Gozo? Is not the Kings flag flying there and at
Malta . . . ? Is not the flag shot at every day by the French, and
returned from batteries bearing the Kings flag? [Neapolitan ships
would] fight the French meet them where they may. . . . If those
acts are not tantamount to any written paper, I give up all knowledge of what is war.270

Nelsons discussion clearly reflects the understanding that all parties

waging war necessarily declare war. He did not try to determine who
declared war first and then say that only that nation had declared war.
His arguments only made sense precisely because he understood that
a nation might informally declare war against another, even after war
had previously been declared on it.
Similarly, that the Neapolitan generals were reluctant to wage war
indicated that they too understood that their King had to issue a response declaration of war (of some sort) if they were to fight a war. If
response declarations of war served no purpose, these generals ought
not to have questioned whether their King had declared war; they
ought to have fought the French without hesitation. These generals
understood that their King had other options besides waging war, and
hence they wondered whether he had decided to wage war. Nelsons
description of the warfare reveals his belief that the King had chosen
to wage war and had therefore declared it.
2. American Understandings
The United States has its own experiences with the response declaration of war. Its first formal declaration of war, the declaration
against England in 1812, was a response declaration of war.271 In that
war, Congress regarded America as the victim of unprovoked war269

See MAURICE, supra note 90, at 3233.

Id. (final alteration in original). Nelson was not alone in concluding that the
Neapolitans had declared war. See id. at 32.
271
Act of June 18, 1812, 3 Stat. 755 (stating that war is . . . hereby declared to exist,
indicating that England had started the war prior to America engaging in war). See also
Special Message to Congress (June 1, 1812), in 8 THE WRITINGS OF JAMES MADISON 192,
199200 (Gaillard Hunt ed., 1908) (Madison noting that England was already in a state of
war with the United States).
270

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fare.272 Nonetheless, no one thought that the President could unilaterally decide that the nation would fight England. Instead, President
James Madison went to Congress and sought a declaration of war. He
realized that he could not declare war and hence could not decide
whether the nation would wage war.273
This understanding of the declare war power did not originate
with the War of 1812. Despite the many formal and informal declarations of war against America in its early years, every President before
James Madison likewise understood that if the nation was to go to war,
the Congress would have to authorize as much. There were three
components of this shared understanding. First, because only Congress could declare war, only Congress could authorize offensive measures against other countries. Second, if Congress chose to authorize
limited offensive actions against a foe, those were the only offensive
measures permitted. Third, whatever Congress might do, the President was constitutionally empowered to adopt defensive measures
meant to protect American lives, property, and territory so long as
such measures did not amount to an informal declaration of war.
Practice in the Washington Administration is especially illuminat274
ing.
The Creeks had declared war against the United States in the
spring of 1793.275 Writing to South Carolina Governor William Moultrie in the summer of that year, President Washington noted that he
hoped to launch an offensive expedition against the refractory part
of the Creek Nation, whenever Congress should decide that such measure be proper and necessary. The Constitution vests the power of
declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated
upon the subject, and authorized such a measure.276 Washington
272
See Act of June 18, 1812, 3 Stat. 755; see also REPORT OF THE COMM. ON FOREIGN
RELATIONS, TO WHOM WAS REFERRED THE MESSAGE OF THE PRESIDENT OF THE UNITED
STATES, OF THE 1ST OF JUNE, 1812, in OFFICIAL LETTERS OF THE MILITARY AND NAVAL OFFICERS OF THE UNITED STATES DURING THE WAR WITH GREAT BRITAIN IN THE YEARS 1812, 13,
14, & 15, at 15, 20 (John Brannan ed., D.C., Way & Gideon 1823) (noting that England
had declared war through her hostilities).
273
See infra text accompanying footnotes 32633 (discussing Madisons request for authority to fight England).
274
Many, but not all, of these episodes were first recounted in Abraham Sofaers masterful work on war and foreign affairs in the early republic. See ABRAHAM D. SOFAER, WAR,
FOREIGN AFFAIRS AND CONSTITUTIONAL POWER 12224 (1976).
275
Extract of a letter from Andrew Pickens, Esquire, to General Clarke (Apr. 28,
1793), in 1 AMERICAN STATE PAPERS: INDIAN AFFAIRS 369, 369 (Walter Lowrie & Matthew St.
Clair Clarke eds., D.C., Gales & Seaton 1834).
276
Letter from George Washington to William Moultrie (Aug. 28, 1793), American
Memory from the Library of Congress, http://rs6.loc.gov/cgi-bin/query/r?ammem/
mgw:@field(DOCID+@lit(gw330067)) (for a scan of the original letter, follow the
IMAGES hyperlink).

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recognized that if the nation was to use more than defensive measures
against the Creeks, Congress would have to authorize as much.
Washingtons 1793 State of the Union address revealed the same
line between defense and offense. In his message, he simultaneously
noted that troops had taken offensive measures against the Wabash
Indians north of the Ohio River and that offensive measures were
prohibited against the Creeks and the Cherokees during the recess of
Congress.277 Washington concluded that it was for Congress to pronounce what shall be done with respect to the latter Indians.278 Why
did Washington order offensive measures against the Wabash but bar
such measures against other tribes? Because Washington had concluded that Congress had informally sanctioned such measures
against the Wabash279 but had not authorized war against any other
tribes.
Washingtons cabinet agreed that he lacked the constitutional authority to order offensive measures, even in the face of a declaration
of war. In 1792, Governor William Blount of the Tennessee territory
had written to War Secretary Knox, informing him that several Cherokee tribes had declared war against the United States. Knox wrote a
letter to the President stating that the Governor should be instructed
that all measures of an offensive nature be restrained until the meeting of Congress, to whom belong the powers of war.280 Knox reported that this was the unanimous opinion of the Secretary of
State, Thomas Jefferson, and the Treasury Secretary, Alexander
Hamilton.281
In his reply to Blount, Knox observed that until Congress passed
judgment on the matter it seems essential to confine all your operations to defensive measuresThis is (intended) to restrain any expedition against the Indian Townsbut all incursive parties against your
frontiers are to be punished with the greatest severity.282 These limitations were necessary because Congress possess[es] the power[ ] of
declaring war.283 In separate letters to nearby governors, Knox simi277
See Fifth Annual Message of George Washington to the Congress (Dec. 3, 1793),
Avalon Project at Yale Law School, http://www.yale.edu/lawweb/avalon/presiden/sou/
washs05.htm.
278
Id.
279
See SOFAER, supra note 274, at 12224. Sofaer also notes that further reasons the
government did not take additional offensive actions were that these actions may have
been regarded as too dangerous and Washington was concerned that state governments
would be unfair and excessively brutal. Id. at 124.
280
Letter from Henry Knox to George Washington (Oct. 9, 1792), in 11 THE PAPERS
OF GEORGE WASHINGTON: PRESIDENTIAL SERIES, supra note 238, at 212, 212.
281
See id.
282
Letter from Henry Knox to William Blount (Oct. 9, 1792), in 11 THE PAPERS OF
GEORGE WASHINGTON: PRESIDENTIAL SERIES, supra note 238, at 212, 213 n.3 (containing
quoted excerpts of that letter).
283
Id.

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In April 1798, Congress authorized the purchase of ships to defend American shipping from French predations.302 The question
was what orders naval commanders should receive. War Secretary
James McHenry sought advice from Hamilton as to what Adams ought
to do. Confining himself to construing Adamss constitutional authority, Hamilton stated,
I am not ready to say that [the President] has any other power than
merely to employ the Ships as Convoys with authority to repel force
by force, (but not to capture), and to repress hostilities within our
waters including a marine league from our coasts. Any thing beyond this must fall under the idea of reprisals & requires the sanction of that Department which is to declare or make war.303

Hamilton understood that only Congress could authorize the

capture of French vessels and that only Congress could authorize the
Navy to make war on French shipping generally. So even though
Hamilton believed that France was waging war against the United
States,304 he concluded that the President could do nothing more
than repel French ships and suppress French hostilities within our territorial waters. Hamilton apparently did not believe that the Constitution authorized Adams to wage war against a nation already waging
war on the United States. Hamiltons advice about the Presidents
constitutional powers was consistent with the opinion that Knox had
earlier ascribed to Hamilton regarding the proper executive response
to the Cherokee declaration of war.305
McHenry conveyed this advice to Adams.306 Adams apparently
agreed with it as he issued narrow instructions to a captain in the
Navy.307 After first reciting Congresss powers to declare war, grant
letters of marque and reprisal and make rules concerning captures,
Adams noted that the captains operations must be partial and limited.308 Adams authorized defensive measures and did not permit
the general capture of French ships or other offensive operations.309
As noted earlier, Adams held this narrow view of his constitutional

302

See Act of Apr. 27, 1798, 1 Stat. 552, 552 (obsolete).

Letter from Alexander Hamilton to James McHenry (May 17, 1798), in 21 THE
PAPERS OF ALEXANDER HAMILTON 461, 46162 (Harold C. Syrett ed., 1974).
304
See Americus, The Warning, in 6 WORKS OF ALEXANDER HAMILTON, supra note 241, at
229, 243.
305
As we shall see later, Hamilton did not stay true to this reading of the declare war
power. See infra notes 33451 and accompanying text.
306
See SOFAER, supra note 274, at 155.
307
See id. at 156.
308
See id.
309
See id.
303

R
R

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authority even though he believed that France already was at war with
the United States.310
Congress would subsequently declare a limited war, granting narrow authority to capture French vessels and constrained authority to
attack French military vessels.311 This authorization suggests that
members of Congress grasped that the President could neither wage a
limited war nor escalate and wage a general war. All that President
Adams could do was dictate defensive measures of the type he had
already ordered. Had members of Congress thought that Adams
could order offensive measures, they would have declined to pass legislation authorizing the limited naval warfare and instead would have
told Adams to rely upon his own powers.
Adams regarded Congresss legislation as a declaration of war.
Writing to Secretary of State John Marshall in 1800, Adams explained
that Congress has already, in my judgment, as well as in the opinion
of the judges at Philadelphia . . . declared war within the meaning of
the Constitution against [France] under certain restrictions and limitations.312 Summing up, Adams thought France was waging war, concluded that he could not order the Navy to wage war in response, and
described congressional legislation as a declaration of war. Hence,
Adams clearly believed that only Congress would decide whether war
was appropriate, even in the face of Frances naval war. Moreover, by
describing congressional legislation as a declaration of war, Adams
confirmed the view that only Congress could issue response declarations of war.
As President, Thomas Jefferson acted consistently with the repeated advice he gave Washington and the path Adams trod. In 1801,
Tripoli declared war against the United States.313 American ships had
been sent to the region and had captured a Tripolitan cruiser.314 After disabling the Tripolitan ship, the American forces released it and
its crew.315 Jefferson thought that no other measures were appropriate because offensive measures were left to Congresss discretion:
Unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defence, the vessel, being disabled
from committing further hostilities, was liberated with its crew. The
310
See DECONDE, supra note 288, at 23; see also 1 OP. ATTY GEN. 84 (1798) (reflecting
the opinion of Charles Lee that the French were waging an actual maritime war); 1 NAVAL DOCUMENTS RELATED TO THE QUASI WAR WITH FRANCE 194, 204, 452, 454, 501 (Navy
Secretary repeatedly noting that United States was at war with French armed vessels only).
311
See Act of May 28, 1798, 1 Stat. 561, 561 (obsolete); Act of June 13, 1798, 1 Stat. 565,
56566 (expired); Non-Intercourse Act, 1 Stat. 613, 613 (expired).
312
DECONDE, supra note 288, at 28182.
313
See 11 ANNALS OF CONG. 11 (1851).
314
See id.
315
See id.

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Legislature will doubtless consider whether, by authorizing measures of offence also, they will place our force on an equal footing
with that of its adversaries.316

Jefferson evidently thought that the Constitution barred him from taking offensive actions that would amount to declaring war.317
Congress concurred. In December of 1801, Congress considered,
as one Representative put it, whether the President shall be empowered to take offensive steps.318 Congress made it lawful for the President to use the Navy to capture Tripolitan ships and goods and to take
any other acts of precaution or hostility.319 Had Congress disagreed
with Jeffersons view of his own authorityhad members believed that
the Constitution itself authorized the President to order full warfare
against Tripolimost of the informal declaration of war would have
been wholly superfluous.
On a number of other occasions, Jefferson expressed similar sentiments. After the British vessel Leopard attacked the Chesapeake, an
American naval vessel,320 Jefferson noted in a letter that [w]hether
the outrage is a proper cause of war, belonging exclusively to Congress, it is our duty not to commit them by doing anything which
would have to be retracted.321 In the face of Spanish possession of
the disputed West Florida, Jefferson argued that he could not author316
Id. It should be noted that certain members of Jeffersons cabinet, in advice previously given to him, disagreed with Jeffersons claim that the President needed congressional authority to order offensive measures against a nation that already had declared war.
See infra note 334.
317
Sofaer argues that Jeffersons speech to Congress was less than candid because orders to an American commodore authorized the general destruction of Tripolitan ships.
See SOFAER, supra note 274, at 21013. Moreover, Jefferson lamented that other ships were
not captured. See id. at 210. But the question is why Jefferson failed to reveal that the
orders permitted the destruction of enemy ships. In this case, it seems that his dissembling
stemmed from a desire to appear a scrupulous observer of the Constitutions limits on his
authority. Jefferson said that disarming the ship was all that could be done because he
thought that anything more would intrude upon congressional prerogatives. In other
words, the best explanation for why Jefferson hid the truth is that Jefferson understood
that the actual orders to naval officers were or might have been constitutionally suspect.
Sofaer also points out that Jefferson was not consistent in opposing congressionally
unauthorized captures. When a naval captain had seized a Moroccan ship guilty of capturing an American brig, Jefferson praised the captain in messages to Congress. See id. at
22324. To be sure, Jefferson never intimated that the captain had unconstitutionally ventured beyond the line of defense. Id. Yet Jefferson did say it was for Congress to consider
the provisional authorities which may be necessary to restrain Morocco, suggesting that,
once again, Jefferson believed that Congress would have to authorize offensive warfare. See
id. at 224.
318
11 ANNALS OF CONG. 327 (1851) (comments of Representative Eustis).
319
Act of Feb. 6, 1802, 2 Stat. 129, 130 2 (obsolete).
320
See SOFAER, supra note 274, at 198.
321
Id. at 199 n.. In another letter, Jefferson observed [t]hat the power of declaring
war being with the Legislature, the executive should do nothing, necessarily committing
them to decide for war in preference of non-intercourse. Id.

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ize offensive force but could order defensive measures.322 He also

told Congress that because it alone is constitutionally invested with
the power of changing our condition from peace to war, I have
thought it my duty to await their authority for using force in any degree which could be avoided.323
Finally, as noted at the outset, James Madison shared the view
that only Congress could decide whether to wage war against a nation
that waged war against the United States. In his 1812 message to Congress that preceded Americas formal declaration of war, Madison recounted a host of indignities meant to show that Britain was waging
war against the United States.324 He cited impressments, blockades,
and other measures as evidence that Great Britain was in a state of war
with the United States.325 At the end of his message, Madison noted
that whether the United States would continue passive or oppos[e]
force to force in defense of their national rights was a solemn question which the Constitution wisely confides to the legislative department of the Government.326 Plainly, Madison believed that it was for
Congress to decide whether to declare war even in a situation where
Great Britain was waging war (albeit a limited one) against the United
States.
Once again, Congress agreed with this categorical reading of declare war. A committee report had noted that it would be superfluous . . . to state, that . . . the British government [has] declared direct
and positive war against the United States.327 Yet rather than informing Madison that he was mistaken and that the President could wage
war at will because England had already informally declared war, Congress famously enacted a formal declaration of war, which authorized the President to use the whole land and naval force of the
United States to carry the [declaration] into effect.328 Such a declaration would have been wholly unnecessary had the informal British
declaration of war been sufficient for the President to take America
into a war.
322

Id. at 200.
Id. at 200 n.* (quoting 15 ANNALS OF CONG. 19).
324
See Special Message to Congress (June 1, 1812), in 8 THE WRITINGS OF JAMES
MADISON 192, 199200 (Gaillard Hunt ed., 1908).
325
Id.
326
Id.
327
REPORT OF THE COMM. ON FOREIGN RELATIONS, TO WHOM WAS REFERRED THE MESSAGE OF THE PRESIDENT OF THE UNITED STATES, OF THE 1ST OF JUNE, 1812, supra note 272, at
20. The committee report referred to a British order in council from 1807 that consummated a system of hostility on American commerce. Id. at 19.
328
Act of June 24, 1812, 2 Stat. 755 (obsolete) (declaring War between the United
Kingdom of Great Britain and Ireland and the dependencies thereof, and the United
States of America and their territories).
323

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The Algerian war teaches the same lessons. In 1812, the Algerians declared war against the United States.329 When the war with England ended, Madison went to Congress in 1815 complaining of
Algerian acts of more overt and direct warfare against the citizens of
the United States trading in the Mediterranean.330 He recommended that Congress pass an act declaring the existence of a state
of war between the United States and Algeria and such provisions as
may be requisite for a vigorous prosecution of the war.331 Within
days, Congress enacted a statute permitting the President to employ
the Navy to protect commerce near Algeria and permitting him to
instruct naval commanders to capture Algerian vessels and to take
all . . . other acts of precaution or hostility, as the state of war will
justify.332
These events parallel those that led to the declaration of war
against England. They once again show that President Madison did
not believe that he could wage war merely because another nation
had declared war and was waging war against the United States.333
Moreover, the episode confirms that Congress understood that only it
had the power to determine whether to wage war (i.e., authorize offensive measures) against Algeria.
That Washington, Adams, Jefferson, and Madison (and many of
their assistants) were of the view that they could not take actions that
would amount to a response declaration of war is powerful evidence
that early Americans regarded such declarations as committed to congressional discretion. These Presidents arguably had the incentive to
voice readings that maximized executive power and minimized the
import of the declare war power. Yet each adopted self-abnegatory
readings of declare war. Each confirmed that the President could
not take actions that would amount to a response declaration of war
because the power to declare war was committed to Congress in toto.
It also bears repeating that Congress agreed with the presidential
endorsement of the categorical theory of declarations. Congress
329
2 THEODORE LYMAN, JR., THE DIPLOMACY OF THE UNITED STATES 369 (2d ed., Boston,
Wells and Lilly 1828).
330
Confidential Message of the President to the House and Senate (Feb. 23, 1815), in
9 JOURNAL OF THE HOUSE OF REPRESENTATIVES 783, 783 (D.C., Gales & Seaton 1815).
331
Id.
332
Act of Mar. 3, 1815, 3 Stat. 230 (obsolete).
333
A decade after Madison left office, he wrote a letter to James Monroe in which he
claimed that the President can enter on a war when a state of war has been actually
produced by the conduct of another power. Letter from James Madison to Mr. Monroe,
in 3 LETTERS AND OTHER WRITINGS OF JAMES MADISON 599, 600 (Phila., J.B. Lippincott &
Co. 1867). As evidence, he cited the war with Tripoli during Jeffersons administration.
Id. Yet Madison also stated that it ought to be made known as soon as possible to the
Department charged with the war power, suggesting perhaps that Congress might still
have to declare war or authorize more limited hostilities. Id.

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never told Washington, or any of his successors, that the Constitution

granted the President the right to wage war as soon as another nation
declared war against the United States. Instead, members of Congress
realized that they could decide whether something more than defensive measures were necessary. Congress sometimes declined to do anything, as with the Creeks and Cherokee, leaving the Executive to
continue implementing a purely defensive strategy in the face of their
warfare.
On other occasions, Congress authorized warfare after other nations began a war against the United States. Indeed, in the declarations of war against England, Tripoli, and Algeria, Congress laid the
onus for starting the war on these other countries. By authorizing the
President to fight those wars, Congress thereby confirmed that even
when another nation declares war against the United States, only Congress may decide whether the United States would wage war in
response.
B. Arguments Against the Idea of Response Declarations
Those inclined to resist the categorical theory of declare war
might respond with a number of arguments. First, one might argue
that once another nation had created a state of war through its declaration, it was impossible, given conventional understandings of declare war, for the victim nation to respond with a declaration of its
own. Alexander Hamilton could be read as arguing as much when he
mocked Jeffersons claim that Congress would have to approve offensive measures against the Tripolitans.334 An English judicial opinions
claim that [a] declaration of war by one country only is not . . . a
mere challenge, to be accepted or refused at pleasure by the other335
perhaps points to the same conclusion. Second, one might contend
that customary international law did not require a nation that was at334
See Lucius Crassus, The Examination No. 1, N.Y. EVENING POST, Dec. 17, 1801, reprinted in 25 THE PAPERS OF ALEXANDER HAMILTON, supra note 303, at 444, 45556.
Hamilton was not alone in the view that when another nation declared war on the
United States, no congressional response declaration was necessary. Jefferson wrote of a
cabinet meeting in which most of the cabinet believed that he could order U.S. ships to
search for and destroy Tripolitan cruisers. See Entry of May 15, 1801, in THE COMPLETE
ANAS OF THOMAS JEFFERSON 213, 213 (Franklin B. Sawvel ed., 1903). The lone dissenter was
Jeffersons Attorney General, Levi Lincoln, who argued American vessels could repulse an
attack but could not destroy the attackers. Id. Madison apparently registered a partial
dissent: although Jefferson listed Madison as agreeing that Jefferson could order American
captains to search and destroy the enemy, Madison also said that American vessels could
not go into Tripolis harbors, unless in pursuit of an enemy vessel. See id. Perhaps Madison
thought that going after Tripolitan ships in harbors was too close to an offensive measure
and hence would amount to a declaration of war. For a slightly more fulsome discussion,
see SOFAER, supra note 274, at 209.
335
The Eliza Ann, (1813), 165 Eng. Rep. 1298, 1299300, 1 Dodson 244, 247
(Adm.).

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tacked to respond with a declaration of war. Under this view, because

international law did not require declarations of war, the President
did not need to wait for Congress to issue a declaration. Instead, he
could immediately wage war in response to another nations declaration against the United States. Third, one might admit that although
a nation could issue response declarations, the phrase declare war
somehow encompassed fewer functions in the response context. In
particular, if a nation did nothing more than wage war in response to
a declaration, its war making would not itself constitute a declaration
of war.
The first argument defies history. As discussed in the previous
subpart, response declarations were quite common. When another
nation declared war, the victim nation might respond by trying to sue
for peace and the like. But if the victim nation decided to wage war,
this decision, however made or expressed, was the victims declaration
of war. There is no historical warrant for supposing that a nation
could not declare war on its enemy after its enemy had declared war
on it.
While Alexander Hamilton may have argued otherwise, his claims
do not withstand scrutiny. Writing as Lucius Crassus, Hamilton ridiculed Jeffersons request for congressional authority to fight the Tripolitans, arguing that it was impossible to conceive the idea, that one
nation can be in full war with another, and this other not in the same
state with respect to its adversary.336 If both nations were in a state of
war, he argued, there was no need to declare war.337 Hence, there was
no need for Jefferson to go to Congress because he could prosecute
the war as he saw fit.
The problems with this argument are legion. To begin with, it
rests on an easily contestable claim about when a nation was at war.
One might say that every nation that is attacked is ipso facto in a state
of war, as Hamilton insisted. But one might just as easily say that the
nation attacked is not in a state of war until it decides to wage war
against the aggressor. The proper way to characterize this situation is
not obvious. For instance, consider a nation of Quakers. When attacked by an aggressor, the Quaker nation might not resist out of respect for its principles. As far as this nation is concerned, it is not in a
state of war. And outsiders may agree that while the aggressor is at
war with the Quakers, the Quakers are not at war.
Interestingly enough, Presidents John Adams and James Madison
voiced the exact distinction that Crassus wholly disparaged. Adams
observed that France is at war with us, but we are not at war with
336
Lucius Crassus, The Examination No. 1, N.Y. EVENING POST, Dec. 17, 1801, reprinted in
25 THE PAPERS OF ALEXANDER HAMILTON, supra note 303, at 444, 45556.
337
See id.

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war, even after another nation declared war. Within our constitutional regime, the grant of the power to declare war to Congress
means that only Congress can decide to wage war, whatever the circumstances. The President is limited to those measures that do not
constitute a declaration of war.
The last argument against the idea that the power to declare war
includes the power to issue response declarations fares no better. Recall that this argument supposes that declare war in the response
context encompasses some of the functions normally associated with
declaring war but excludes the function of deciding whether to wage a
war. It seems implausible to suppose that declare war had some
more limited meaning in one isolated context. Indeed, there is no
good reason to think that declare war meant something broad in
the context of starting a war but something far narrower in the context of a war already declared by an aggressor. This is a little like
saying that the power to raise taxes means one thing in times of
budget surplus and another thing in times of deficit. In any event,
historical evidence discussed in the previous subpart coheres with the
intuition that when two nations fight a war, both the aggressor and the
victim thereby declare war. In contrast, there is no evidence supporting the speculative assertion that declare war had a narrower
compass in the response context.
Ultimately, none of the objections to the notion of response declarations of war bears any scrutiny. Given the grant of declare war
power to Congress, Congress must determine whether offensive measures are the appropriate response to another nations declaration of
war. The President cannot usurp this decision by waging a full-scale
war in response to an informal or formal declaration of war. Instead,
the President can do no more than take those defensive measures that
do not constitute an informal declaration of war.
IV
SOME CONSEQUENCES OF THE ORIGINAL MEANING
DECLARE WAR

If one accepts the claim that to wage war was to declare war, what
implications and difficulties follow? This Part begins by briefly highlighting some surprising implications arising from the definition of
declare war advanced here. Next, it addresses the difficulties in determining what military measures the President may order, consistent
with Congresss declare war power. Finally, it considers whether the
Constitutions method of going to war is outdated.

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A. Implications of the Categorical Theory

The original meaning of declare war gives rise to a number of
interesting implications for how to discuss declarations and warfare.
The first such implication is that every American war was a declared
war, at least in the constitutional sense. It has been a common complaint that America has fought many so-called undeclared wars. The
examples are familiar: Korea, Vietnam, etc. Some might add the two
Iraq wars and the Afghan conflict to this list. If we use the original
meaning of declare war as a guide, however, the United States has
never fought an undeclared war because that is logically impossible.
Whenever the United States started a war, it necessarily declared war
either formally or informally. Likewise, whenever the United States
decided to enter a war started by another nation, that decision was
itself a declaration of war.
This does not mean that all such wars were constitutionally declared. The complaints against Americas undeclared wars should
perhaps be restated as complaints that Presidents usurped the authority of the constitutional organ enjoying the sole power to declare war.
In other words, the claim should not be that Presidents have fought
undeclared wars, but that Presidents have declared war when only Congress ought to have done so. Whether these complaints have merit
turns on whether, during the relevant periods, Congress passed measures that served as informal declarations of war.
A second implication is that even though the Constitution supposes all wars are declared, it is still possible to say that a warring nation has not declared war. When someone observes that a warring
nation has not declared war, they typically mean no more than that
the nation has not yet issued a formal declaration of war. Or perhaps
they are complaining that the warring nation gave no formal warning
that they were about to attack. Either way, such observations do not
call into question the broad understanding of declare war found in
the Constitution. That a warring nation has not issued a formal declaration of war does not mean that it has not issued an informal declaration of war.
Indeed, it is possible for the same person to say that a nation has
declared war in the informal sense and has not declared war in the
formal sense. During the Revolutionary War, some said that both En-

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gland353 and France354 had declared war but had not formally declared war. This was not a sign of some mental confusion. Rather
speakers were using declare war in two different senses.
The claim that the declare war power included the power to
issue informal declarations of war might seem to generate an odd result. In particular, a nation might be regarded as having informally
declared war and yet never actually wage war. For example, should a
nation in the eighteenth century dismiss an ambassador in a hostile
manner, that nation could be said to have declared war. But warfare
might never ensue, making this something of a phony declaration.355
Although this oddity might seem something peculiar to the broad
definition, it is in fact possible with respect to the narrow, formal definition of declare war as well. Under the formal definition, a nation
might unconditionally declare war and yet never actually commence
warfare. Why might this happen? The declarant nation might have a
change of heart; the declarant might have been bluffing, hoping to
coerce the other nation; the other nation might have successfully pacified the declarant; and other nations might have intervened to stave
off warfare.
In one way, the possibility of a declared war without actual hostilities is more acute once one accepts that a nation can declare war informally because many more actions might be mistaken for
declarations of war when no such declaration was intended. In another way, however, the possibility of a phony war is eliminated in the
case where actual offensive warfare constitutes the declaration of war.
Unlike a formal declaration which leaves open the possibility of no
ensuing warfare, an informal declaration of war that occurs via warfare leaves no gap between intent and reality. When offensive warfare
constitutes the declaration, there is no chance of a false declaration of
war. In any event, the fact that there might be more non-wars after
some kinds of informal declarations does not call into question the
category of informal declarations. Just as a formal declaration of war
353

See Letter from Richard Henry Lee to Thomas Jefferson (July 20, 1778), in 10 LETDELEGATES TO CONGRESS, 17741789, supra note 163, at 322, 32223 (noting that
the Court of France consider the Message of the King of England to his Parliament and
their answer . . . as a denunciation of War on the part of G. Britain, and that they mean to
Act accordingly, without an express declaration, leaving this last to England.).
354
See Letter from Richard Henry Lee to Francis Lightfoot Lee, supra note 163, at
26667 (noting that a French Count had declared war on board his fleet but also noting
that there had been no formal declaration of war).
355
There was something of a phony war in 1775, or so a member of Parliament argued. Speaking before the House of Commons in early 1775, the member argued that
America and England were both in an open and declared war but that no blood had yet
been spilt. See House of Commons, American Archives, Documents of the American
Revolution, http://colet.uchicago.edu/cgi-bin/amarch/getdoc.pl?/projects/artflb/
databases/efts/AmArch/IMAGE/.1850 (last visited Aug. 27, 2007) (comments of
Governour Pownall). As we know, actual warfare eventually did break out.

TERS OF

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is a declaration of war regardless of whether warfare ensues, informal

declarations of war are no less declarations of war even if no warfare
actually results. Because, historically, declaring war was merely a decision to wage war, it always was possible that a nation making such a
decision might have second thoughts prior to actually waging war.
B. Difficulties Associated with the Categorical Theory
The grant of declare war authority to Congress reflects a principle that the President should not embroil the nation in a war. Decisions about whether to resort to warfare rest with Congress. The
primary difficulty with implementing this principle lies in discerning
which statements and actions are forbidden to the President because
they constitute declarations of war. The following discussion considers this question while generally refraining from offering definitive
answers.
Although the President has executive power to communicate with
foreign nations and can say all manner of things to them,356 the exclusive grant of declare war power to Congress makes it clear that there
are some things that the President cannot utter. Under any theory of
the meaning of declare war, the President cannot make speeches or
issue announcements, the substance of which would amount to a declaration of war. The President, acting alone, certainly cannot say I
declare war against another nation. Moreover, acting alone, the President cannot threaten the resort to warfare should another nation not
comply with certain demands. A demand that a nation do something
on pain of war is a conditional declaration of war. Only Congress can
make a conditional declaration of war.357
The greater difficulty lies not with statements but with actions. As
we have seen, the Constitution uses declare war to encompass all
actions that signal a wars onset. It is easy enough to say that the Commander in Chief cannot start a war or join one without some congressional declaration. Implementing that principle is far more difficult
and raises thorny questions.
In discerning what actions are forbidden to the President, should
we be governed by the generic principle reflected in the Declare War
Clause or by the specific actions that would have been regarded as
declarations of war in the eighteenth century? The general principle
356
See generally Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over
Foreign Affairs, 111 YALE L.J. 231 (2001) (arguing that the President has executive power to
communicate with foreign nations and wide latitude in what to say).
357
The President could still threaten to lobby Congress to declare war should another
nation not comply with the Presidents admonitions and demands. But this threat will be
less worrisome precisely because the President cannot wage war without first getting Congress to authorize the warfare.

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is that Congress must decide whether the nation is to wage war. While
nations generally regarded making a treaty of alliance with a warring
party as a declaration of war in the late eighteenth century,358 the
question is whether we should continue to regard such treaties as declarations of war today even if no existing government continues to
regard such treaty making as an informal declaration of war. On the
other hand, there may be actions that nations did not regard as declarations of war in the eighteenth century that the modern world would
generally regard as such today.359 This poses a difficult, if familiar,
question of how to make sense of ancient constitutional text that appears to enshrine concepts whose content may change over time.
Similar questions arise in discerning the original meaning of the ban
on cruel and unusual punishment.
A related question is what to make of a situation where a foreign
nation warns that it will regard certain U.S. actions as a declaration of
war. As we have seen, nations sometimes warned that they would regard seemingly innocuous statements or actions as declarations of
war.360 The better view is that such threats are really attempts to shift
blame for the start of a war. If the President takes the action the opposing nation warned against, the President has not declared war in
the constitutional sense, for another nation cannot make some action
a declaration of war merely because it announces its eager willingness
to treat it as such. Of course, should the other nation declare war in
response to the supposed declaration of war by the United States, the
Congress would face the question of whether the nation would wage
war in response.
Another issue concerns how to understand declare war when
powers committed to other actors might enable them to declare war
through their actions. For instance, if the making of treaties of alliance with warring parties was (and is) a declaration of war, one might
doubt whether the President and Senate could make such a treaty.361
Another question relates to actions that the President might take unilaterally that might constitute declarations of war, such as the dismis358

See NEFF, supra note 28, at 109.

This possibilitythat there might be new actions that constitute informal declarations of warseems less likely given that many seem to be unaware of the possibility of
informal declarations of war.
360
See supra text accompanying notes 13136.
361
See U.S. CONST. art. II, 2, cl. 2 (He shall have Power, by and with the Advice and
Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur . . . .). Washingtons second Attorney General, William Bradford, apparently doubted
that the Executive could, via treaty, commit the United States to wage war. He observed
that such a question would perhaps come more properly before that body in whom the
right of declaring war is vested. Letter from William Bradford to Edmund Randolph (July
5, 1794), http://memory.loc.gov/mss/mgw/mgw4/105/1100/1142.jpg & http://memory.loc.gov/mss/mgw/mgw4/105/1100/1143.jpg.

359

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sal of foreign ambassadors. Of course, such questions about the

interaction of powers arise all the time, as when scholars discuss
whether the treaty power can legislate upon subject matters committed to Congress, like the taxing power.362
Perhaps the most vexing issue is the extent to which the President
can order the use of military force without that use constituting a declaration of war. Without attempting to provide a definitive treatment,
a few comments seem in order. First, it is clear that nations did not
view all uses of force as declarations of war. Although one commentator remarked that hostilities are commonly considered as the strongest declaration of war,363 no one ever claimed that all hostile actions
were regarded as declarations of war.
For instance, consider a wayward cannonball shot across a nations frontier by mistake. No one would say that the nation from
whence the cannonball came had thereby declared war, for a nation
cannot accidentally declare war. Likewise, consider a renegade
French captain who attacked English naval ships. If France disclaimed
the attack and offered restitution, the captains actions could not
properly be attributed to France. This would mean that France had
not declared war through the actions of its renegade captain. Furthermore, any English ships that might attack the French ship in selfdefense would not thereby have declared war against France. Neither
the attack nor the vigorous defense would amount to a declaration of
war because neither nation actually sought to immerse itself in a war.
Early American history indicates that the President might order
the armed forces to defend themselves against attack without such orders themselves constituting a declaration of war. Delegates at the
Philadelphia Convention recognized that not all uses of force constituted declarations of war. Without being contradicted by their comrades, some delegates said the President could repel sudden attacks
without running afoul of Congresss authority to declare war.364 Similarly, Washington and his aides noted that governors could take defensive measures to thwart Indian raids because such measures did
not constitute a declaration of war.365 Jefferson drew the same line
with respect to Tripoli. Even Hamilton agreed with this general division, at least until Jefferson voiced it to Congress.366 What unites the
errant cannonball, the actions of a renegade captain, and those
soldiers who defend themselves and their nations territory is that
362
See, e.g., John C. Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and
the Original Understanding, 99 COLUM. L. REV. 1955, 1959 (1999) (discussing the complicated interaction between the treaty power and Congresss legislative powers).
363
1 NECKER, supra note 14, at 273.
364
2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 200, at 318.
365
See supra notes 27497 and accompanying text.
366
See supra notes 28081, 303 and accompanying text.

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each of these actions in no way resembles a decision to wage war. A

nations armed forces can be quite lethal without ever informally declaring war.
On the other hand, a decision to take the fight to the enemy
and indiscriminately attack that nations ports, territory, etc., would
constitute a declaration of war. That is so because any such decision
would be a decision to wage war and, as such, a declaration of war.
That is why Washington, Jefferson, Knox, and even Hamilton argued
that the President alone could not order offensive measures against
those that had declared war against the United States.
We might profitably draw upon the criminal law concept of selfdefense. Under the generic concept of self-defense, someone attacked may respond with proportional force to ward off or disable the
attacker. A person must use no more force than appears reasonably
necessary in the circumstances. When the danger has passed, the person seeking to use the self-defense argument cannot continue to pursue the original aggressor on grounds of self-defense, for at this point
the victim becomes the aggressor.
In the same way, we might say that a nation has not declared war
when it responds to an attack with defensive measures designed to
thwart the attack. It may destroy the advancing enemy and may take
prisoners. None of these measures would be viewed as a declaration
of war. But if the victim nation creates a new front or decides to attack the aggressor after the aggressor has withdrawn, then the victim
has itself declared war. While such actions may well be justified under
principles of international law or under conceptions of morality, those
matters are not in dispute. The inquiry is whether creating a new
front or pursuing aggressors long after they have retreated would constitute a declaration of war. Materials from the eighteenth century
suggest that the answer is yes.
Accordingly, in response to hostilities initiated by another nation,
the President is limited to a lethal but calibrated defensive response,
reserving to Congress the decision whether to wage an offensive war.
This fuzzy dividing line leaves much up in the air. But this is hardly
something peculiar to the categorical theory of declare war. Any theory that hopes to explain what it means to declare war will have to
explain what actions constitute war and why certain actions fall short
of being termed war. Of more relevance, any theory that accepts
that certain acts of hostilities rise to the level of a declaration of war
will have to explain which acts of hostilities by other nations amount
to an informal declaration of war. This inquiry somewhat mirrors the
questions that scholars might ask of the Presidents ability to order the
use of force short of an informal declaration. Hence, any plausible

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