President Obama’s speech at the National Defense University calling for an end to the war on terror forces the question of who gets to declare peace. The Left wing in our political debate has been agitating for some time to repeal the authorization to use military force that the Congress passed after 9/11. The President boarded the bandwagon yesterday. He vowed he would sign no laws designed to expand the mandate and declared outright that he looks forward “to engaging Congress and the American people in efforts to refine, and ultimately repeal” the congressional mandate to use force. “This war, like all wars, must end,” he said, declaring: “That’s what our democracy demands.”
It strikes us that the President is, as he sometimes so wonderfully phrases it, getting out a bit over his skis. For it turns out that the Constitution is silent on the question of making peace and who, if anyone, gets the power to declare it. The parchment grants Congress the power to declare war, alright, and to grant letters of marque and reprisal, which are classical instruments of war. It makes the president the commander-in-chief. But the Constitution says nothing about making peace. It does not enumerate the power as among those granted to Congress, or any other branch of the government, and it reserves all un-enumerated powers to the States or to the people.
It turns out that this was no mere oversight, as the editor of the Sun pointed out recently in the American Spectator. At the convention in Philadelphia, where the Constitution was crafted in 1787, a proposal was made to grant Congress the power not only to “declare war” but also to “make peace.” It was rejected unanimously, a fact that came up in the Senate during World War I, when Congress was wrestling with a proposal to declare an end to hostilities with Germany. The problem was reasoned out in an article in the Michigan Law Review by one of America’s most famous constitutional scholars, Edward Corwin.
Corwin marked the principal argument against granting Congress the power to make peace. It was advanced by James Madison and Oliver Ellsworth, who reckoned that “it should be more easy to get out of war than into it” and so the power of making peace ought to be lodged “with a less cumbersome body than Congress.” Corwin fretted about using the Treaty Power, by which the Senate can make an agreement the “supreme law of the land” without any action of the House. Corwin’s worry was that, because a treaty requires a two-thirds vote in the Senate, a minority of the upper chamber could frustrate the peace.
Where Corwin came out is that there is “more than one road leading to peace, as to Rome.” The record in our two centuries of constitutional government suggests that we’ve followed nearly all of them. We used the treaty power, in a deal struck at Ghent, Belgium, to end the war of 1812. A treaty, of Guadalupe Hidalgo, also ended the Mexican War. The Civil War wasn’t ended by a treaty, however; President Andrew Johnson simply declared that it was over — a year and two months after the last Confederates surrendered. A treaty was struck at Paris to end the Spanish American War.
“A heap of paperwork,” as your editor put it in the American Spectator, was needed to end World War I. First, in 1918, an armistice, then a treaty (Versailles) to end the war with Germany, treaties ending the war with other belligerents, and then a Congressional resolution, the Knox-Porter, signed by President Harding in 1921, several years after the fighting was done. Truman didn’t formally declare World War II over until the end of 1946 and Congress waited to act on Germany until 1951 and on Japan until 1952. The war in Korea hasn’t yet been ended (just interrupted by an armistice), and the Vietnam war continued despite being ended.
Which leads to the constitutional conundrum in the current crisis. Suppose the President or the Congress do want to end the war with al-Qaeda but al-Qaeda doesn’t want to end its war against us. Is it constitutional for the president or the Congress to declare an end to the war if our enemy is still in the field levying a war against us? Our own view — we would not suggest that it is widely held — is that the question is not clear-cut. For there is the constitutional oath, required of the President, to “defend” the Constitution, and the oath sworn by members of Congress to defend the Constitution against “all enemies, foreign and domestic.” So is it constitutional while war is being levied against us to disappear in arms? Or does the Constitution require that once war is declared the pursuit goes on until victory?