Reviewed by Robert J. Spitzer, Department of Political Science, SUNY Cortland. Email: Robert.spitzer [at] cortland.edu
The War of 1812 was America’s first declared war. Beyond that, most Americans know little or nothing about the conflict, and are barely aware that this year marks its bicentennial. Yet this conflict, by Brien Hallett’s reckoning, is pivotal to understanding how the war power has shifted from Congress to the presidency. In his new book, Hallett asserts that “Congress lost forever the power to decide the question of war or peace in 1812” (p.6) As a result, he concludes that we have been governed, since that time, by a “Dictatorial President” (p.4) who has “become a tyrant” (p.5) when the clouds of war gather. This occurred so early in our history because the Constitution’s founders failed to anticipate the prospect of Congress ceding initiative to the president, as it did in 1812. To analyze this, Hallett relies on speech act theory and conflict resolution theory, insofar as declarations of war are “speech acts” (p.xv) animated by either acts of anger and vengeance, or by the need for conflict resolution.
Hallett begins with what he considers the pivotal events surrounding the declaration of war of 1812. As many have noted, this was a war begun in obscure motives, lacking in the degree of public enthusiasm that accompanied subsequent wars (indeed, the congressional vote was the closest of any war declaration in history). The nation was woefully unprepared, confused about its military strategies, suffered a series of military defeats, and its ultimate result left things pretty much where they were (Crain 2012). Perhaps it was fitting that America’s greatest military victory in the war, the Battle of New Orleans, came after the treaty ending the war had already been signed.
Hallett provides a careful look at the machinations behind the run-up to the war declaration. The chief culprit in giving over war powers to the president was Henry Clay. The young, ambitious “War Hawk” freshman, installed at Speaker of the House, planned legislative strategy with President James Madison’s Secretary of State, James Monroe. This culminated in Clay accepting “presidential initiative and leadership for declaring war” because the “constitutional duty to recommend” would now make the president “not just a full partner with the Congress, but the lead partner as well”(p.25). The result, according to Hallett, is that the president became, and is now, “the dictatorial partner who takes the decision for war or peace and then ‘recommends’ it to the Congress so that it might ‘adopt his decision by declaring (or ‘authorizing’) it” (pp.25-26). In Hallett’s telling, this had the effect of taking a power belonging to Congress and forever more [*512] dividing it between Congress and the president, with the president holding most of the trump cards. In this way, “all power is drained from the power ‘to declare war’” (p.26).
The difficulty with Hallett’s analysis is that it fails by the terms of the Constitution, and the powers of Congress. While no one can dispute that presidents acquired more political control over war-related matters, the idea that Congress permanently lost its actual control over the war decision is contradicted by the simple fact that Congress at no point is obliged to accept (and certainly not without modification if it so chooses) any presidential recommendation for war. It is unsurprising in the extreme that a young, inexperienced, ambitious House leader would seek political aid and cover from the venerable, pro-war President Madison in agreeing to have Madison offer an initial recommendation to Congress, especially given the tenuous political support for the move. It was a political concession, to be sure – one that would become typical of presidential-congressional relations in the decades to come. But to say that presidents have become “dictators” or “tyrants” because of this is not only factually incorrect, but historically perverse. A standard political dictionary defines a dictator as one who possesses “the arbitrary exercise of absolute power by the regime” (Plano and Greenberg 1985, p.11). To apply the term to Madison or any subsequent president when the nation was on the brink of war would have meant that a “no” vote by Congress on a declaration of war would mean automatic loss of office, or torture, or death by any in Congress who would have dared to oppose Madison – for that is the very meaning of dictatorship. There would not, and could not have been, any dissenting votes in Congress. Yes, Clay’s deal with Madison ceded power to him, but it was a political bargain, not some kind of rewriting of the Constitution. Nothing that happened in 1812 or since warrants Hallett’s “dictator” label. It is sheer hyperbole that has no place in serious analysis.
And finally, what of Madison himself? He was, after all, not only present at the Constitutional Convention, but considered the document’s “father.” Was he acting to somehow dismantle the constitutional balance he labored to construct in 1787? Did Madison ever express such feelings or misgivings in 1812 or later? Hallett doesn’t say.
Hallett proceeds in the next chapter to the Spanish-American War declaration of 1898, which he notes was the only instance when Congress actually wrote the declaration, illustrating, in his view, the incompetence of Congress in such matters, characterized by what he describes as “congressional games” (p.61) By this, he means what most would refer to as legislative politics. These “political politicians” of Congress, Hallett sniffs, “were politicians first and declarers of war second” (p.71).
Chapter Four moves to his treatment of the War Powers Resolution of 1973, where Hallett concludes that the act made presidential military action easier, removed ever further any likelihood of a congressional declaration of war for future conflicts, and confirmed “the tautological principle that war is not peace, and peace is not war” (p.86). In Chapter Five, Hallett rejects “the [*513] unproductive congressional scholarship of the past” by introducing a new vocabulary to then “rediscover the classical vocabulary of Roman law” (p.92). Among other things, Hallett rejects any notion of undeclared war, noting for example that the difference between the Spanish-American War and the Vietnam conflict is that the first “was ‘declared’ legally in accordance with the Constitution, whereas the latter was ‘declared’ tyrannically in defiance of the Constitution” (p.95). They were certainly different conflicts on many levels, but there was the little matter of the congressionally-enacted Gulf of Tonkin Resolution (although Hallett later says that the Tonkin Resolution was the Spanish-American War declaration “before its time” (p.131)).
Chapter Six extols the Declaration of Independence, produced by the unicameral Second Continental Congress, as “the gold standard against which all exercises of the power to declare war . . . must be measured” (p.130). He finds that neither the bicameral Congress nor the president is really able to formulate “procedurally perfect declarations of war” (p.144) because in particular Congress is not “organized” (p.164) to handle such matters; it is simply a “fundamental flaw in the Constitution” (p.163). (This assertion would seem to undercut his earlier claim that this was all the fault of Henry Clay.) For Hallett, “the pole star” (p.40) of any discussion of the war power “is the example set by the Second Continental Congress and its declaration [of Independence]” because it both deliberated and declared war, which, Hallett insists, “Congress has never done,” even though Congress apparently did so in 1898 (pp.40-41).
The succeeding chapter describes six organizational structures whereby proper war declarations might be constructed. Chapter Eight looks backward to theory to parse the origins and development of governing powers in order to propose a constitutional amendment to create a “Council on War and Peace” (p.175) modeled after the Second Continental Congress, which would be vested with the said powers. The next chapter examines Congress’s inadequacies more closely; the next jumps back to Roman law and then to the second President Bush. The final chapter examines the ontology of the language of the rule of law.
As this summary suggests, this book suffers from both a lack of organizational, and intellectual, coherence. While Hallett considers the actual distinction between declared and undeclared wars to be artificial – fair enough – he pays essentially no attention to the hundreds of conflicts throughout the country’s history that lacked formal declarations but did possess legislative authority through what are now typically called “use of force” resolutions. Many have examined these enactments (e.g. Spitzer 1993; Fisher 2004), too often ignored by congressional critics, as critical to understanding the full interplay between the two branches on war-related matters. And then there are assertions like Hallett’s claim that the Mexican-American War of 1846 was actually not a declared war because it was declared “unsolemnly in an appropriations act” (p.112). Here I will accept Fisher’s verdict that, on May 13, 1846, “Congress declared war” (2004, p.42). The Congress of 1846 might not have adhered to Hallett’s preferred form, [*514] but the fact of the law is the trump.
One may argue, as does Hallett, that Congress both cannot, and ought not, declare war. There is plenty of legal, historical, and political evidence to marshal on behalf of such an argument (e.g. Posner and Vermeule 2011). While this book at times alludes to that evidence, it manages to obfuscate rather than illuminate that debate.
Crain, Caleb. 2012. “Unfortunate Events.” The New Yorker, October 22: 77-80.
Plano, Jack C., and Milton Greenberg. 1985. The American Political Dictionary. New York: Holt, Rinehart, and Winston.
Spitzer, Robert J. 1993. President and Congress: Executive Hegemony at the Crossroads of American Government. New York: McGraw-Hill.
Copyright 2012 by the author, Robert J. Spitzer.