"The Congress shall have Power... To declare War."--Constitution of the United States, Article 1, Section 8.

"The President shall be Commander-in-Chief of the Army and Navy of the United States."--Article 2, Section 2.

When President Eisenhower committed the United States to the defense of Formosa and the Pescadores, even at the cost of war with Communist China, he revived a Constitutional problem virtually as old as the nation, the issue of war-making power. Ever since the Philadelphia Convention of 1787, political theorists and politicians alike have attempted to determine the exact legal processes necessary to bring the United States into a state of war with a foreign power. On the theoretical level, the question is as unresolved as ever. But the President's recent decision represents the latest answer on the level of political action.

In their consideration of the war-making power, the framers of the Constitution were reacting to some extent against current British theory and practice. According to historical tradition, he war-power was one of the main royal prerogatives--the king himself had the authority to take the nation into war. Thus the final draft of the Constitution contained the provision that the United States Congress alone could declare war, Hamilton, in the Federalist, made a great point of minimizing the President's powers as Commander-in-Chief and stressed the fact that Congress was empowered to raise and regulate military forces, as well as declare war.

Actually, the framers had no apparent intention of granting the legislature the sole authority over war and peace. In an earlier draft of the Constitution, they had given Congress the power to "make" war, but in the completed document, they settled on the word "declare." Madison explained that this change was made to leave "the Executive the power to repel sudden attacks." Hamilton himself, once the Constitution was safely ratified, abandoned his earlier emphasis on the restricted role of the President in military affairs.

Hamiltonian Tradition

By 1801, when the Barbary pirates were practicing the annoying custom of preying on American shipping, Hamilton had completed his retreat. He expressed contempt for the idea that American vessels had only the right of self-defense, unless Congress formally declared war. He now put the case clearly: "When a foreign nation declares or openly and avowedly makes war upon the United States, they are then by the very fact already at war, and any declaration on the part of Congress is nugatory; it is at least unnecessary."

Down through the years, numerous American presidents of both parties have followed the Hamiltonian tradition of upholding the right of the Executive to use American forces in military operations, even without a Congressional declaration of war. United States ships fought the Barbary pirates informally for years. In 1875 President Polk precipitated a war with Mexico by sending American troops onto disputed soil between Mexico and the Republic of Texas. Once Polk created this "antecedent state of things," in Hamilton's phrase, Congress had no choice but to make a formal declaration of war. Abraham Lincoln, as a first-term Congressman, was among those voting to censure Polk for "unconstitutional" actions. But as President, Lincoln was to undertake drastic actions against the Confederacy without prior Congressional consent. The North never even admitted the existence of a state of war.

American Rights Abroad

Several American Presidents have undertaken military action in defense of the rights and interests of American citizens abroad, thus forming a precedent of sorts for Senator Knowland's demands that the U.S. use military pressure to obtain the release of its prisoners in Red China. In 1854, a United States ship bombarded a Nicaraguan port after some Nicaraguans had manhandled an American consul. The Supreme Court subsequently asserted it to be the Executive's duty to act at his own discretion to protect American citizens. During the Boxer Rebellion in China in 1900, President McKinley sent 5,000 American soldier's and marines on a triumphal march to Peking, a feat unlikely to be repeated in the near future.

The great wars of the twentieth century have come close to destroying altogether Congress' power to commit the country to war, except as a mere formality. The United States was virtually at war, chiefly on Presidential initiative, long before American forces entered either World War on Congressional authorization. The most striking recent instance was, of course, President Truman's decision to send American troops into Korea on the grounds that they were participating in a "police action" to prevent war, not in an act of war itself. No official Congressional authorization was ever given to Truman's actions except for whatever approval was implied in the voting of appropriations for the war.

President Eisenhower's decisions to request a Congressional resolution supporting military action in defense of Formosa represents an apparent departure from the tradition of Executive power. Eisenhower was careful to state his belief that only some, not all, of the actions for which he requested approval, were inherent in his power as Commander-in-Chief. He seemed almost anxious to admit the possibility of Congressional limitations on his powers in such matters, and attitude which not many American Presidents have shown. Unquestionably Eisenhower would hope to gain prior Congressional authorization before undertaking any serious military action anywhere in the world.

But the President also made it clear that he is perfectly willing to order American forces into battle without a previous Congressional vote, if the interests of national security should demand it in an emergency. Thus his request for Congressional approval of his Formosa proposal does not represent a real change from the historical trend establishing the Executive's war making powers. Like his predecessors, Eisenhower realizes that whatever the Constitution says, wars are not usually declared in advance.