"Congress only can declare war" and "the President is Commander in Chief": Daniel Webster and the War Power

Abstract

Where does the decision to go to war reside under the Constitution of 1787? Which branch of the federal government possesses the power to authorize hostilities against other nations? Article I, section 8, gives Congress the power “to declare War, grant letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water,” but Article II, section 2, stipulates that “the President shall be Commander in Chief of the Army and Navy of the United States.” What military actions, if any, can the executive undertake without prior legislative consent? These and related questions about the war power raise some of the most important issues in the history of American foreign policy and they have been debated for many years by lawyers, politicians, and scholars. Reacting to American involvement in Vietnam, Congress passed a joint resolution in 1973 designed to limit the war-making power of the executive. At that time, and subsequently, both defenders and critics of that controversial statute have appealed to history for support. Senator Jacob K. Javits, for example, argued that there can be “no doubt” that the framers of the Constitution intended to withhold the war power from the executive.1 On the other side, Senator Barry Goldwater has compiled 197 precedents to bolster his contention that it is “the right of the President to take military action at any time he feels danger for the country or its freedoms.”2 Politicians and scholars on both sides of the issue have quoted various statesmen of the past to support their positions, but as yet no one has made a systematic assessment of the thoughts and record of Daniel Webster on the subject. The purpose of this essay is to contribute to the ongoing historical and philosophical dialogue on the war power by examining the career and views of one of America's most eminent interpreters of the Constitution.