Article 1, Section 8, Clause 1 — Make War And Declare War At The Constitutional Convention

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Article I, Section 8, Clause 11:

[The Congress shall have Power . . . ] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; . . .

In its report containing the first full draft of the Constitution considered at the Constitutional Convention, the Committee of Detail included a provision granting to Congress the power “To make war[.]” [1](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/make-war-and-declare-war-at-the-constitutional-convention#fn1art1 " 2 The Records of the Constitutional Convention of 1787, at 182 (Max Farrand ed., 1911) [hereinafter Farrand’s Records]. Although the Committee of Detail did not record or take notes of its deliberations, drafts of its plans for a constitution in the handwriting of Edmund Randolph, the Committee chair, and James Wilson, one of its most influential figures, have been found. See id. at 137 n.6 (providing background on the Randolph draft), id. at 163 n.17 (discussing the Wilson draft). Both versions assign the power “to make war” to Congress. See id. at 143, 168. For background on Wilson’s influence on the Committee, see Clinton Rossiter, 1787: The Grand Convention 202 (1966); Michael W. McConnell, James Wilson’s Contributions to the Construction of Article II, 17 Geo. J.L. & Pub. Pol’y 23, 36–46 (2019). ") The assignment of this power to Congress and the clause’s phrasing, which differed from its counterpart in the Articles of Confederation, prompted debate among the delegates.[2](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/make-war-and-declare-war-at-the-constitutional-convention#fn2art1 " The Convention turned its attention to the clause in August 1787, after spending two weeks addressing other provisions of the Committee of Detail’s draft. 2 Farrand’s Records, supra note 7, at 313–14, (Journal); id. at 318–19 (Madison’s notes). ")

Charles Pinckney of South Carolina made the first remarks about the clause.[3](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/make-war-and-declare-war-at-the-constitutional-convention#fn3art1 " Id. at 318. ") He objected to including the House of Representatives in the power to make war because he believed it to be too large a body for the quick deliberations necessary for the task.[4](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/make-war-and-declare-war-at-the-constitutional-convention#fn4art1 " Id. ") The Senate alone would be the better option, Pinckney maintained, because it would be “more acquainted with foreign affairs, and most capable of proper resolutions.” [5](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/make-war-and-declare-war-at-the-constitutional-convention#fn5art1 " Id. ") Pinckney also argued that, because both small and large states face existential risks from war, the composition of the Senate, with its equal representation of the states, made it a more appropriate body.[6](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/make-war-and-declare-war-at-the-constitutional-convention#fn6art1 " See id. ( “[T]he small have their all at stake in such cases [of war] as well as the large States.” ). ") Pierce Butler of South Carolina voiced an objection to either chamber of Congress being assigned the power to make war.[7](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/make-war-and-declare-war-at-the-constitutional-convention#fn7art1 " Id. ") Butler advocated instead for “vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it.” [8](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/make-war-and-declare-war-at-the-constitutional-convention#fn8art1 " Id. ")

After Butler’s comment, James Madison of Virginia and Elbridge Gerry of Massachusetts moved to change the clause to give Congress the power to “declare” war rather than “make” war.[9](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/make-war-and-declare-war-at-the-constitutional-convention#fn9art1 " Id. ") According to Madison’s notes, the change was intended to “leav[e] to the Executive the power to repel sudden attacks.” [10](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/make-war-and-declare-war-at-the-constitutional-convention#fn10art1 " Id. ") Roger Sherman spoke in opposition to the motion, contending that substituting the term “declare” would narrow congressional authority too significantly.[11](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/make-war-and-declare-war-at-the-constitutional-convention#fn11art1 " See id. (Madison’s notes, discussing the statement of Roger Sherman) ( “Mr. Sharman [sic] thought [the unamended clause] stood very well. . . . ‘Make’ better than ‘declare’ the latter narrowing the power too much.” ). ") Sherman argued that the original term “make” better captured the formulation in which the President was empowered to repel attacks but could not “commence war” on his own.[12](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/make-war-and-declare-war-at-the-constitutional-convention#fn12art1 " Id. ")

At this point, Elbridge Gerry objected to Butler’s earlier-raised proposition that the clause be shifted to a presidential power. Gerry remarked that he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” [13](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/make-war-and-declare-war-at-the-constitutional-convention#fn13art1 " Id. ") Oliver Ellsworth of Connecticut spoke next and highlighted the distinction between “making war, and making peace.” [14](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/make-war-and-declare-war-at-the-constitutional-convention#fn14art1 " Id. at 319. (emphasis in original). ") To Ellsworth, it should be “more easy to get out of war, than into it.” [15](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/make-war-and-declare-war-at-the-constitutional-convention#fn15art1 " Id. Ellsworth added that, whereas war results from “a simple and overt declaration[,]” peace must be “attended with intricate [and] secret nego[t]iations.” Id. ") George Mason then responded to the several lines of argument that had been raised in response to the motion to substitute “declare” for “make.” Mason maintained that the President could not be trusted with “the power of war,” and that the Senate was “not so constructed as to be entitled to it.” [16](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/make-war-and-declare-war-at-the-constitutional-convention#fn16art1 " Id. at 319. ") Mason endorsed the view that the Constitution should facilitate the process of making peace while making it more difficult to engage in war,[17](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/make-war-and-declare-war-at-the-constitutional-convention#fn17art1 " See id. at 319 (Madison’s notes, discussing statement of George Mason) ( “He was for clogging rather than facilitating war; but for facilitating peace.” ). ") and he concluded by stating that he preferred the phrase “declare war” over “make war.” [18](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/make-war-and-declare-war-at-the-constitutional-convention#fn18art1 " Id. ")

The delegates then voted on the motion to substitute “declare” for “make.” Two rounds of votes were held, and, although the records of the Constitutional Convention provide inconsistent accounts of the first round of voting, the motion passed on the second vote with eight states in favor and one against.[19](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/make-war-and-declare-war-at-the-constitutional-convention#fn19art1 " According to James Madison’s notes, the motion passed in the first round of voting with seven states in favor and two against. Id. (Madison’s notes). Madison wrote that, after the initial vote, Rufus King of Massachusetts remarked that “‘make’ war might be understood to ‘conduct’ it which was an Executive function” and not a power that should be lodged in the legislative branch. Id. Following King’s comment, Oliver Ellsworth “gave up his objection[,]” according to the Madison, and the Connecticut delegation changed its vote so that the motion succeeded with the larger margin of eight to one in favor. Id. The official (but often less accurate) Journal of the Convention, however, provides that the motion initially failed by a vote of four to five, but later succeeded on a second vote. Id. at 313–14 (Journal). Scholars disagree on which account is accurate, but all agree motion to substitute “declare” for “make” passed in a second vote with eight votes in favor only one state, New Hampshire, in opposition. Compare Charles A. Lofgren, War-Making Under the Constitution: The Original Understanding, 81 Yale L.J. 672, 8–9 (1972) (contending that Madison’s notes are incorrect and the official Journal contains the correct tally), with John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Ca. L. Rev. 167, 264 (1996) (arguing that Madison’s notes are the more reliable source). ")

Footnotes

1

2 The Records of the Constitutional Convention of 1787, at 182 (Max Farrand ed., 1911) [hereinafter Farrand’s Records]. Although the Committee of Detail did not record or take notes of its deliberations, drafts of its plans for a constitution in the handwriting of Edmund Randolph, the Committee chair, and James Wilson, one of its most influential figures, have been found. See id. at 137 n.6 (providing background on the Randolph draft), id. at 163 n.17 (discussing the Wilson draft). Both versions assign the power “to make war” to Congress. See id. at 143, 168. For background on Wilson’s influence on the Committee, see Clinton Rossiter, 1787: The Grand Convention 202 (1966); Michael W. McConnell, James Wilson’s Contributions to the Construction of Article II, 17 Geo. J.L. & Pub. Pol’y 23, 36–46 (2019).

2

The Convention turned its attention to the clause in August 1787, after spending two weeks addressing other provisions of the Committee of Detail’s draft. 2 Farrand’s Records, supra note 7, at 313–14, (Journal); id. at 318–19 (Madison’s notes).

3

Id. at 318.

4

Id.

5

Id.

6

See id. ( “[T]he small have their all at stake in such cases [of war] as well as the large States.” ).

7

Id.

8

Id.

9

Id.

10

Id. [](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/make-war-and-declare-war-at-the-consti