How The Framers & Early Constitutional Commentators Established That ONLY Congress May Declare War & Authorize Military Action - & How We've Drifted From The Design Of The Constitution

On Monday’s The Sons of Liberty radio, I presented the case against President Donald Trump’s unlawful attack on Iran, which didn’t do anything but waste our money, endanger our people and do absolutely nothing.  On top of that, the president then openly lied to the people about what it accomplished because the Iranians’ enriched uranium was not “obliterated”.   In fact, the US knew ahead of time that all of that was moved, along with personnel from the facilities that were bombed.  In other words, it was nothing but political war theater at our expense, but it was also criminal.

First, consider the Constitution’s provision for the only political body that can declare war or call up the military in the service of the united States:

“The Congress shall have Power … to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”-Article I, Section 8, Clause 11

“The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States…” -Article II, Section 2

So, we see that unlike a king, who can just commandeer the military, the president’s hands are bound by the People through their representatives in Congress, which are the ONLY ones who can declare war or authorize military action.  In this recent case of an attack on Iran, just like the two times Trump attacked Syria, Congress never authorized any of it, making it a war crime and an impeachable offense.

The framers of the US Constitution debated the issue of restricting the war power of the executive.

During the Constitutional Convention of 1787 the framers shifted wording from “make war” to “declare war” deliberately to prevent the executive from initiating hostilities on its own.

George Mason warned against giving such power to the executive, saying it was “not [safely] to be trusted.”

Elbridge Gerry, delegates’ majority voice, declared “never expected to hear in a republic a motion to empower the Executive alone to declare war.”

James Madison, in Federalist No. 41, affirmed that declaring war was a function residing solely with Congress.  

Alexander Hamilton, in Federalist No. 69, emphasized the contrast with a monarch.  He said that while the president would command forces, “the declaring of war … would appertain to the legislature.”

So, how did early jurisprudence and commentators on this issue respond?

“The whole powers of war being… vested in Congress, the acts of that body can alone be resorted to as our guides in this inquiry.” -Chief Justice John Marshall in Talbot v. Seeman (1801)

 

“The Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the Legislature.” -James Madison, father of the Constitution

 

“Congress alone is constitutionally invested with the power of changing our condition from peace to war…” -Thomas Jefferson and James Wilson

In the Federalist Papers, not a single essay is laid out on the subject.  However, the collective body of the Federalist Papers defends a system where Congress checks the impulse of the executive, deliberating before committing the nation to war.  This balance is core to federalist philosophy and was embedded in War Powers architecture.

This is how things began, but since World War II, this understanding has greatly been diminished and has brought us all sorts of ills in our country and to countries that we have unlawfully attacked and terrorized.

No longer are there formal declarations of war, something the Constitution is explicit on concerning that authority being with Congress.  Instead, Congress has issued “Authorizations for Use of Military Force (AUMFs)“, ig., 2001 AUMF post–9/11, 2002 Iraq AUMF; broad grants that aren’t time-limited.  

The War Powers Resolution of 1973, intended to check unilateral presidential war-making, has often been bypassed or considered insufficient.  

Meanwhile, Presidents have led military actions (e.g., Libya 2011) without formal Congressional approval—claiming limited engagement, defensive prerogatives, or reliance on preexisting AUMFs.  

While some seem just fine with a single man taking us to war and engaging in lawless military action against other countries, the Constitution remains steadfast about the separation of powers, even though many of our representatives and the People are constantly undermining it.

Recent trends reveal three key shifts:

1. Legislative delegation: Congress passes open-ended authorizations, effectively outsourcing war decisions to the executive.
2. Executive claims of inherent power: Presidents frequently interpret Article II as permitting independent military action short of formal war. 
3. Judicial deference: Courts often avoid ruling on war-powers issues, invoking political-question doctrines—further entrenching executive dominance.

This shift bypasses constitutional design, weakening the ‘deliberative function’, the ability of Congress to hold the executive accountable, to debate, to fund, or to stop military engagement.

So, how are we to restore the founding principles, which our Constitution has not changed on?

The framers comprehended human nature: that executives, once armed, might pursue war without restraint. 

This is why they clearly vested the power to declare war in Congress, specified that the president must execute, not originate, war efforts, and protected against unilateral war-making, emphasizing Congress’ role in war funding and oversight.

Recent trends, such as broad AUMFs, unchecked executive actions, and judicial inaction, have eroded the separation of powers.  If we wish to honor the constitutional framework and prevent executive overreach, we must reinvigorate Congress’ role in authorizing and reviewing military action, and resist the illusion that delegating war power to the executive is constitutional.

In conclusion, the framers’ design was neither vague nor ambiguous—Congress must approve war.  However, modern habits have hollowed out that requirement, empowering executives and circumventing the system of checks and balances the Constitution demands.

Article posted with permission from Sons of Liberty Media