given the understanding that the war power encompassed authority to determine both war and
peace.
37
With the exception of Pierce Butler’s remarks, there is nothing in the Framers’
comments, arguments, or train of discussion to suggest even a vigorous flirtation with the
proposition of vesting the war power in the executive. The various conventions, moreover,
included delegates in Philadelphia who informed and assisted their deliberations. James Wilson,
perhaps only slightly less important than James Madison in the Constitutional Convention, told
the Pennsylvania Ratifying Convention:
This system will not hurry us into war; it is calculated to guard against it. It will not be in
the power of a single man, or a single body of men, to involve us in such distress; for the
important power of declaring was is vested in the legislature at large: this declaration
must be made with the concurrence of the House of Representative: from this
circumstance we may draw a certain conclusion that nothing but our national interest can
draw us into war.
38
Similar assurance was provided in other state conventions. In North Carolina, James
Iredell, who was destined to be a member of U.S. Supreme Court, stated: “The President has not
the power of declaring war by his own authority…. These powers are vested in other hands. The
power of declaring war is expressly given to Congress.”
39
Furthermore, Charles Pinckney, a
delegate in Philadelphia, told the South Carolina Ratifying Convention that “the President’s
powers did not permit him to declare war.”
40
Likewise, in New York, Chancellor R. K.
Livingston responded to objections that the Continental Congress did not have “the same
powers” as the proposed Congress.
41
He explained that if the two bodies shared “the very same”
power, including the power “of making war and peace[,]. . . they may involve us in a war at their
pleasure.”
42
The debates on the War Claude afforded no support for the assertion of a unilateral
presidential power to initiate the use of military force, nor is it the case, as President Bush has
contended, that this authority can be squeezed from either the Vesting Clause or the Commander
in Chief Clause.
43
3. Commander in Chief
As Francis D. Wormuth observed, “the office of commander in chief has never carried
the power of war and peace, nor was it invented by the framers of the Constitution.”
44
In fact,
37
Id.
38
2 JONATHAN ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF
THE FEDERAL CONSTITUTION 528 (2d ed. 1836). Robert McCloskey wrote that Wilson was the “most learned
and profound legal scholar of his generation.” 1 WORKS OF JAMES WILSON 2 (R. G. McCloskey ed., Harvard
University Press 1967).
39
4 JONATHAN ELLIOT, supra note 105, at 107-08
40
Id. at 287.
41
2 JONATHAN ELLIOT, supra note 105, at 278.
42
Id. at 278.
43
For discussion of the argument that these clauses are a source of unilateral executive war-making, see generally
David Gray Adler, The Constitution and Presidential War-making: The Enduring Debate, 103 POL. SCI.Q. 1, 8-17
(1988) [herinafter Presidential War-making].
44
Francis D. Wormuth, The Nixon Theory of the War Power: A Critique, 60 CAL. L. REV. 623, 630 (1972).
Convention