The Framers of the United States Constitution sought to limit the tendency of chief executives to enhance their power and lead their peoples into war, by providing that Congress alone should have the right to declare war and that the President's treaty-making power should be shared with the Senate. James Madison remarked in a letter to William Cabell Rives:
In no part of the Constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture of heterogeneous powers, the trust and the temptation would be too great for any one man. . . . War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will which is to direct it. In war, the public treasures are to be unlocked; and it is the executive hand which is to dispense them.
Hence it has grown into an axiom that the executive is the department of power most distinguished by its propensity to war; hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence.
Yet the Constitution, as it has worked out in modern times, does not succeed in effectuating this purpose very completely. The President is the Commander-in-Chief of the army and navy; he appoints the Secretary of State and diplomatic representatives abroad; he can carry on private conversations with foreign powers, send public notes and make speeches containing important pronouncements of policy. Thus he can, in effect, create a situation, without the advice or consent of Congress, in which Congress is virtually compelled to declare war. President Wilson, and not Congress, led the country into war in 1917; when he finally came to Congress and asked for a declaration, the important decisions had been made. Debates in Congress dealing with foreign policy, in which criticism of the President's course may be heard while he is engaged in a controversy with a foreign power, are supposed to be unpatriotic; Senators and Representatives will be wary of this sort of thing though they criticize the President on every other conceivable ground.
The danger in the incomplete control by the legislature over steps on the road to war have been illustrated clearly during the present administration. Congress, contrary to the desire of the President and the Secretary of State, passed the Neutrality Act. The great war broke out in China, but on the merely technical ground that this war was not declared, the President declined to invoke the Act. Not only that, but in Chicago he made a speech calling for "quarantining” of aggressors, contrary to the provision of neutrality. Thus a policy favored by Congress with the hope that it would keep us from drifting into a situation where war might become necessary has been blandly ignored by the Executive, who is bringing pressure to bear for a change in the legislature's enactments on the subject.
No matter how much we may approve of Mr. Roosevelt's general intent, and no matter how much we may trust him personally, this is a constitutional weakness that should be repaired. It is far more damaging to leave in the Executive's hands a virtually unchecked power over war and peace than to delegate to him those many powers in control of our economy against which his enemies have been protesting. A national economy requires the delegation of many details or administration if it is to be under public control at all, but there is no good reason for complete delegation of the major decisions on foreign policy which may result in war.
In Hubert Herring's suggestive book, “And So to War,” an interesting suggestion is made to remedy this defect. Congress might by resolution require that the President consult with the Foreign Relations Committees of the House and Senate and obtain their consent before dispatching any important note, making any public declaration of foreign policy or entering into any commitment. Or an even larger special committee might be set up for the purpose, containing members of all minority parties. Of course the discussions of this body could be kept confidential. But it would provide for a continuous check on executive foreign policy by the legislature. It is possible that this procedure could be inaugurated without constitutional amendment, but if an amendment were required, it would harmonize with provisions already in the Constitution.
In parliamentary governments like those of Britain and France the Foreign Office is answerable to Parliament in any case, and the members may always put questions on foreign policy from the floor. In our government the President swings in an orbit of his own as far as foreign relations are concerned, and is completely out of touch with Congress on such issues. He himself would ordinarily benefit in advancing the policies he favors if the contact were closer. It would be one excellent way to build up among the leaders of the nation a larger and better informed group conversant with foreign affairs in their important day-today aspects. It might do something to abolish the almost incredible naivete which is our national failing in this field.
This article originally ran in the July 27, 1938 issue of the magazine.