The United States hasn't officially declared war against another country since World War II, and yet, we've been in dozens of conflicts since then. So what does it mean to "declare war," and how has the definition of war, and how the United States engages in it, changed since our framers wrote the Constitution?
Albin Kowalewski, a historical publication specialist at the U.S. House of Representatives, helps us answer these questions. He spoke with our former host, Virginia Prescott, in 2017.
Hannah McCarthy: [00:00:02] Nick, before I ever got this wonderful job on this wonderful show, I was not a civics buff. Are you shocked?
Nick Capodice: [00:00:11] Completely appalled.
Hannah McCarthy: [00:00:13] However, I did have this one fact that I just loved pulling out, which was the fact that the U.S. Congress has not declared war since World War Two. It was my makes you think, doesn't it fact?
Nick Capodice: [00:00:27] Yeah, I learned that fact in a movie theater in 1997 when I first saw Wag the Dog.
Movie Sound: [00:00:33] Two things I know to be true. There's no difference between good flan and bad flan, and there is no war we show in NASA confirms there is the Canadian border,
Nick Capodice: [00:00:45] And that fact is bizarre to comprehend because of course, we have been to war a bunch of times since then, right?
Hannah McCarthy: [00:00:52] Yeah. Makes you think, doesn't it?
Nick Capodice: [00:00:55] Since World War Two off the top of my head, we've got the Korean War, Vietnam War, Gulf War war in Iraq and the war in Afghanistan.
Hannah McCarthy: [00:01:04] So what I hope you are thinking right now is how is that possible, given the fact that we haven't actually declared war in so long? The way the framers intended it for Congress to make an official declaration essentially seems like a thing of the past.
Nick Capodice: [00:01:21] I feel like we also need to consider the fact that war looks very different now than it did when the framers wrote the Constitution. Like, if the government is a house, you've got the Constitution as the foundation frame, and everyone who came after that foundation was laid has added to it. We need
HGTV: [00:01:38] To create a larger master bedroom closet,
Nick Capodice: [00:01:41] Change things
HGTV: [00:01:42] Around, expand and update the teen bathroom, put up walls, enlarge my daughter's closets,
Nick Capodice: [00:01:48] Build editions,
HGTV: [00:01:49] Create a home office for me.
Nick Capodice: [00:01:51] There's some pretty outlandish wallpaper in the third floor bathroom, courtesy of the Supreme Court. But still, it's a historical property, so it's pretty hard for someone to come and just tear the whole thing down.
Hannah McCarthy: [00:02:05] Yeah, actually, this is really good. Like you look at the house a few hundred years in the future, and it's built on that foundation, but has an entirely different entrance or a whole new wing. One president could come in and decide to make it an open concept and bust all the walls down between the living room, dining room and kitchen. But after a while, it's like the Winchester mystery house. It becomes difficult to trace how and when and why certain things have changed because they're all building on top of each other. And there's that staircase that leads to nowhere.
Nick Capodice: [00:02:37] All right. So the question is, how did we stop using the front door to declare war and ask everyone to please come in through the back?
Hannah McCarthy: [00:02:44] This is Civics 101. I'm Hannah McCarthy. I'm Nick Capodice, and today we're talking about the thing we haven't done since nineteen forty two declaring war.
Archival Sound: [00:02:55] I believe that I interpret the will of the Congress and of the people when I assert that we will not only defend ourselves to the utmost, but will make it very certain that this form of treachery shall never again and dangerous. We are a united nation. Let us boldly proclaim we will not permit any force to strike down. Alien civilization depends on what we do on what we do now and in the months ahead. I have no higher obligation than to safeguard the lives
Archival Sound: [00:03:37] Of American citizens. The House of Representatives. And some days again, I'm. You can end the war.
Albin Kowalewski: [00:04:11] When the United States declares war, it sets in motion a process that the framers of the Constitution first envisioned in 1787.
Hannah McCarthy: [00:04:20] This is Albin Kowalewski, an historical publication specialist at the U.S. House of Representatives. He spoke with our former host, Virginia Prescott, in 2017.
Albin Kowalewski: [00:04:29] For them, war was not an abstract concept at all. You know, these guys, almost to a man, had served in some capacity during the American Revolution. The vast majority of them had military experience, either with the Continental Army or with state militias. If they couldn't serve for one reason or another, you know, in the military, they would serve in the safety councils. And I think even one or two of them had been surgeons as well. So these guys had seen the face of war up front. This is something real to them. They had seen the destruction that war could bring to a people. And so the overriding thought at the constitutional convention was to make war difficult to enter.
Nick Capodice: [00:05:10] It makes sense, though, that something so destructive should be so hard to do.
Albin Kowalewski: [00:05:15] Peace peace should be easy. That should be the easy part. That should be the status quo. But war war should be difficult to enter, and so they began considering ways to make that happen. One of the ideas that they settled on was that open debate among the people's representatives could really kind of cool temperatures, cool the push for war. So what the framers ended up doing is that they gave the war powers to the legislative branch. There was some discussion of whether or not they should give the war powers to the president, and they quickly got rid of the idea of giving it to the president. I think only one person brought up the idea at the convention. Everybody more or less seemed convinced that Congress, the legislative branch, should have that power.
Nick Capodice: [00:05:58] And that makes sense because Congress is a large, slow deliberative body and it's hard to get stuff done there.
Albin Kowalewski: [00:06:05] So the idea for declaring war is that by giving Congress the power to declare war, what you're essentially doing is you're getting the American people behind you. You know, you look at the transitive property. Voters elect the representatives. If a majority of the representatives vote to support war, then technically the voters, the American people will have supported war.
Hannah McCarthy: [00:06:25] And given that the framers put Congress first in the Constitution right there in Article one. That is where you find those fighting words. Congress shall have the power, et cetera, et cetera, to declare war. Grant letters of marque and reprisal. Don't worry about that. We're not going to cover that in this episode and make rules concerning captures on land and water.
Nick Capodice: [00:06:45] And what does it actually look like when Congress goes for it?
Albin Kowalewski: [00:06:48] Any time Congress has declared war, it's always been preceded by either a written statement or an address in front of Congress by the president asking for that conflict.
Archival Sound: [00:06:57] The vice president, Mr. Speaker, members of the Senate of the House of Representatives.
Hannah McCarthy: [00:07:05] The way that works and mind you, this is in the case of a formal declaration, is that the president asks for permission to go to war through a joint address to Congress.
Archival Sound: [00:07:15] I believe that I interpret the will of the Congress and of the people when I assert that we will not only defend ourselves to the uttermost, but will make it very certain that this form of treachery shall never again endanger it.
Hannah McCarthy: [00:07:38] The joint address is for fancy stuff. This is also how the State of the Union is delivered. It happened when Nixon resigned. You've been hearing President Franklin Delano Roosevelt asking Congress to declare war on Japan after the attacks on Pearl Harbor in 1941.
Archival Sound: [00:07:54] I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December 7th, 1941, a state of war has existed between the United States and the Japanese Empire.
Nick Capodice: [00:08:27] All right, and assuming Congress is amiable to the suggestion, what happens next,
Hannah McCarthy: [00:08:31] Congress passes a joint resolution, which means identical resolutions in both the House and the Senate that declare war against a nation
Archival Sound: [00:08:39] When the historic role is called. I hope there will not be a single dissenting voice.
Albin Kowalewski: [00:08:49] Declaring a state of war is one thing, basically taking, you know, a state of peace and turning it into a state of war, and then Congress is also always authorize the president to employ the military.
Nick Capodice: [00:09:00] What actually practically changes after a declaration of war? To go back to that house metaphor, we just painted our peace house bright red. So what does that mean?
Hannah McCarthy: [00:09:13] Declaring war opens up a set of statutes that give the executive branch and the president special powers things like detaining foreign enemies, taking over transportation systems to supply the war effort and certain intelligence gathering. We are that much closer to the point when we started going to war without declaring war. We'll get to those president war powers after this quick break.
Nick Capodice: [00:09:47] A word here to remind everyone that Civics 101 is a listener supported show. And today I am asking for your support. If you go to our website Civics101podcast.org or just click the link in our show notes to make a donation in any amount, we will give you a sleek, shiny new Civics 101 sticker that says the constitution is my copilot. You can stick it anywhere you want on your laptop, on your car, on your Cuisinart, on your cat to show your love for our podcast and for democracy again, civics101podcast.org. And we are so grateful for your help.
Hannah McCarthy: [00:10:28] Welcome back to Civics 101. We're talking declaring war.
Nick Capodice: [00:10:31] All right, this is where things are getting interesting because we're talking about the role of the president, because even though only Congress has the power to declare war, the president is the commander in chief of the armed forces, right?
Hannah McCarthy: [00:10:43] Exactly. The framers recognized that going to war should take careful consideration. Thus, the don't make it too easy congressional vote to actually declare war. But the methodological red tape approach is not necessarily practical when it comes to actually succeeding in war. Imagine if, in order to decide to invade a region, the commanders of the armed forces had to bring their proposals to Congress. Ask the House and Senate to approve these measures, and only then once approved, could they take the action. That would not be the sleekest approach.
Nick Capodice: [00:11:19] I mean, you need someone to literally make executive decisions in this case, i.e. the chief executive, the president. So now this, I understand. But what I am struggling with is how that same executive has in effect taken us to war a bunch of times without the congressional process. What is empowered our presidents to take us to Vietnam, to Afghanistan, et cetera.
Albin Kowalewski: [00:11:44] This was a debate that has not stopped more or less since 1787. So throughout the course of American history, America has used its military to different ways. So you have the declaration of war. And Congress has declared war 11 times against 10 countries during five separate conflicts since 1789. And those those five separate conflicts are the War of 1812, the Mexican-American War, the Spanish-American War, World War one and World War Two. Declarations of war, I think carry with it like a terrible scale, right? Like a war vote is something big and it's imposing, and it's the idea of marshaling resources of one nation state against the resources of another nation state. Kind of a clash of the Titans sort of deal. But for the vast majority of the times that America has used its military, it's been through a simple authorization. Today, we call these things authorizations for the use of military
Hannah McCarthy: [00:12:36] Force, otherwise known as an AUMF, which is what well, essentially Congress has given the president the ability to say we are going to use these forces in this way.
Albin Kowalewski: [00:12:46] The term AUMF is kind of a product of the modern era. I think it kind of came into use during the Gulf War in 1991, but this is the interesting thing. Congress has never declared war without also including an authorization for the use of force, but it has authorized force many, many times without formally declaring war.
Hannah McCarthy: [00:13:05] The technical term AUMF did not come into use until 2001, when President Bush wanted to have the authorization to use military force against terrorists following September 11th. Since World War Two, presidents have been using their role as commander in chief to justify taking military action without the rigmarole of declaring war.
Archival Sound: [00:13:26] Finally, if Congress believes, as I do, that we are at war with ICE, it should go ahead and vote to authorize the continued use of military force against these terrorists for over a year. I have ordered our military to take thousands of airstrikes against ISIL targets. I think it's time for Congress to vote to demonstrate that the American people are united and committed to this fight.
Hannah McCarthy: [00:13:50] But like Albin said, this method of engaging in warfare was happening before the official term came into law.
Albin Kowalewski: [00:13:57] On one level, the nature of war has changed since 1787. Back then, it was a lot of state versus state actors. Since then, America has, you know, gone to war or engaged in conflicts with non-state actors. You know, the rise of these international obligations that the United States now has to meet with the United Nations or NATO. The world is far more interconnected than the founders could have ever have imagined. Back in the 18th century, when Congress declared war, it set in motion a whole bunch of these different provisions in international law about belligerency and about neutrality. And now it is. The United Nations kind of manages that.
Nick Capodice: [00:14:36] So the world changed and Congress let the declaration of war stand down in favor of presidential military force.
Albin Kowalewski: [00:14:45] But I think the biggest change has to do with the rise of nuclear warfare. It requires quick decision making. A ballistic missile is not going to wait for Congress to get together, to vote to draft legislation and to vote on that legislation. In addition to that, you know, America has never really demobilized. After World War Two, we went from World War Two straight into the Cold War.
Archival Sound: [00:15:07] We'll know when it comes. We hope it never comes, but we must get ready.
Albin Kowalewski: [00:15:10] And now it has military installments across the globe.
Nick Capodice: [00:15:13] And besides interconnectivity, what else happened?
Hannah McCarthy: [00:15:17] After World War Two, the U.S. had developed this reputation as a global leader and enforcer of democracy, and this was used as justification for sending military troops into places that were, for example, threatened by dictators. Dictatorships are antithetical to the ethos of the United States.
Albin Kowalewski: [00:15:34] But in going to war, taking unilateral action as a president without the support of Congress or without an authorization, it can be dangerous. It can be tricky.
Hannah McCarthy: [00:15:43] So Truman, for example, ordered military action in South Korea to defend it from invasion by North Korea, which was being aided by Russia. Now, Truman justified this by saying that it was part of our agreement with the United Nations, and therefore it was his right as president to command those forces.
Albin Kowalewski: [00:16:00] That was a terrible war. That was a bloody war. And by the end of it, you know, people were calling it Truman's war.
Archival Sound: [00:16:05] I cannot find it in me to exalt in this hour whether it is a time for prayer that we may succeed in our difficult endeavor to turn this armistice to the advantage of mankind.
Albin Kowalewski: [00:16:20] And so without the support of Congress, the president will then take on the responsibility for it completely. But in going through an authorization or through a declaration, the president can then kind of share that responsibility with the legislative branch.
Nick Capodice: [00:16:34] This really speaks to the power of presidential precedent, right? Because then during the Vietnam War, Johnson increased the number of forces in Vietnam, despite the war being largely unpopular among the people and Congress. And then Nixon ordered secret invasions and bombings in Cambodia without telling Congress. It just feels like we've moved so far away from what the framers intended. That war should be a major symbolic action that requires the buy-in of the people and careful consideration by Congress.
Hannah McCarthy: [00:17:08] Well, Congress did try to tamp down on the president's military power with the War Powers Act of 1973.
Archival Sound: [00:17:15] The War Powers Act was an act of congressional desperation. It grew out of the agony of the Vietnam War out of a series of unchecked presidential commitments of troops and treasure to a cause that failed.
Hannah McCarthy: [00:17:26] This act required the president to alert Congress at least 48 hours before a military action. And then the president had 60 days to get retroactive or continued authorization from Congress.
Nick Capodice: [00:17:39] And if a president could do something in under 60 days, they don't need permission of Congress, essentially.
Hannah McCarthy: [00:17:44] And in 2001, President Bush signed the Authorization for Use of Military Force. That's the AUMF into law quote to use all necessary and appropriate force against those nations, organizations or persons. He determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Nick Capodice: [00:18:24] Which, to clarify, was a law passed by Congress. Yes. So basically, the president is allowed to take military action if it is for the purposes of preventing terrorism.
Hannah McCarthy: [00:18:35] And note the fact that as opposed to the specificity of a declaration of war, the AUMF does not name a specific enemy. It's just anybody essentially related to those terrorist attacks. With the rise in the use of emergency powers. You can check out our recent episode on that. A lot of the things that a president used to need a congressional declaration of war to do, like controlling transportation lines and deploying troops can now be done if the president declares a state of emergency.
Albin Kowalewski: [00:19:09] As soon as you give the president the source of powers to commit the military overseas without necessarily having to consult Congress, or even if you know the president doesn't consult Congress initially, but then goes and asks Congress to retroactively authorize that decision. It's incredibly difficult for Congress to get those powers back again.
Nick Capodice: [00:19:26] I think about the fact that a guest once told me that whatever official executive orders that president does, it's easy to overturn by the following administration and acts of Congress are a lot more difficult to unwind. But with military action, it's something that president after president took advantage of. And then finally, Congress passed this act that cemented those powers in a way. And my question is. In essence, has declaring war become obsolete?
Albin Kowalewski: [00:19:59] It's a great question whether or not we've moved past the point in which we will no longer declare war. I guess it's to be determined.
Hannah McCarthy: [00:20:12] This episode was written and produced by Christina Phillips with help from me, Hannah McCarthy and Nick Capodice. Our team includes Jacqui Fulton. Our executive producer is Rebecca Lavoie. Music in this episode by Chris Zabriskie Broke for Free, Krakatoa, Maarten Schellekens, Poddington Bear and Cza. And while we try to pack every episode full of as many facts as we can, there's so much left on the cutting room floor. Luckily, we have a place to put it our newsletter Extra Credit, which you can subscribe to at our website. Civics101podcast.org Civic's one to one is a production of Nhpr.org New Hampshire Public Radio.
