he Constitution (New York: W. W. Norton, 1987), 244. committed the country to major wars, in which tens of thousands of American soldiers died, without a Congressional declaration of war. In the Persian Gulf, President Bush might do the same. In the Cuba Missile Crisis, President Kennedy committed the U.S. to a course of action that might have led to nuclear war with the Soviet Union and potentially the deaths of millions of Americans, civilians even more than soldiers. The stakes in the war powers question are thus immensely high.
The problem of war powers can be approached in several different ways. In one sense it is ultimately a legal question: ours is, or is supposed to be, fundamentally a government of laws, not of personal prerogative. It is also, however, a historical, policy, and political question. In the following pages, while legal issues will be touched upon, attention will be devoted to the historical and political aspects of the war making power. We will speak of actual wars, or actions that might lead to war, and their public consequences, rather than of case law.
The framers of the Constitution were well aware of the ambiguities involved in war powers. We are accustomed to thinking of irregular, undeclared warfare as a relatively modern innovation, and imagine that at the time of the Constitutional Convention, the distinction between war and peace was more clearly drawn than today. In fact, however, the practice of beginning wars with a formal declaration of war was already falling out of practice by the eighteenth century.2 Even earlier, Grotius, the first great theoretician of international
2Arthur M. Schlesinger, The Imperial Presidency (Boston: Houghton Mifflin, 1973), 21.
law, had drawn a distinction between "perfect" and "imperfect" war.3 This distinction corresponded roughly to the modern difference between "total" or all out war, fought using the full resources of the nati...