15
The delegates agreed to assign the power to declare war solely to the Congress.
Their understanding of what war meant with regard to the government power that they
were distributing among the Congress and the President was a condition of overt, armed
hostility between the United States and another nation or nations. Invasion of the United
States could be one form that such armed hostility might take. In the event of invasion,
the implication was that the President could use the military to repel the invasion without
any authorization by the Congress.
But the Congress could play a role. In Article I, Section 8, Clause 15, the
delegates provided Congress with the authority to call “forth the Militia to execute the
Laws of the Union, suppress Insurrections and repel Invasions”. If the President decided
that he needed the state militias, along with the nation’s Army and Navy, to put down an
insurrection or repel an invasion, then he would need to ask Congress to call forth the
militias. In Article I, Section 9, the delegates gave Congress authority to suspend “the
Privilege of the Writ of Habeas Corpus” “in Cases of Rebellion or Invasion” when “the
public Safety may require it”. The delegates used the terms “insurrection” and “rebellion”
interchangeably.
The delegates considered the seriousness and danger of an insurrection within the
United States with as much solemnity as they did the possibility of an invasion by troops
of a foreign nation. That should not surprise us. After all, Shay’s Rebellion had only
recently been put down and most of the delegates had served in the Continental Army or
somehow been involved in the insurrection against the British. So the delegates wanted
Congress to be empowered to call forth the state militias to combat those hostile to the
government and intent on its destruction, whether they were invaders or insurgents.
Convention