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http://www.globalsecurity.org/military/library/report/1991/BJL.htm
The Declaration Of War: One For The History Books?
AUTHOR Major John L. Bacon, USMC
CSC 1991
SUBJECT AREA - National Security
EXECUTIVE SUMMARY
TITLE: THE DECLARATION OF WAR: ONE FOR THE HISTORY BOOKS?
I. THEME: To discuss the background of the declaration of
war and to determine its relevance in light of current war
powers legislation and trends in modern warfare.
II. THESIS : The declaration of war, while originally thought
of as the preferred option in justifying the use of U.S.
forces, is, in reality, a seldom-used concept that will
become increasingly difficult to enact with the passage of
the War Powers Resolution (WPR) and our recent success in
Southwest Asia.
III. DISCUSSION: While orginally conceived as a desired
method of manifesting public support for American entry into
war, the declaration of war has seldom been enacted prior to
U.S. involvement in hostilities, The five declared wars,
while different in terms of their causes and effects, have
all been "popular" wars that enjoyed the support of the
people and were preceded by a strong incident that rallied
the public desire for armed intervention. The majority of
the declared wars resulted from Congress blindly following
Presidential leadership in an attempt to echo their
constituent's desire for war. The passage of the War Powers
Resolution (WPR) in 1973 formalized the dialogue between the
President and Congress on how to commit troops without a
declaration of war. The declaration of war may be reserved
for the type of war represented by its history -- long,
protracted, global affairs -- and may not be aligned with
current models of warfare. The modern concept of rapid,
limited wars leans heavily toward the WPR as the preferred
method of quickly committing iorces to action, whereas the
debate on a formal declaration of war would tie up necessary
manpower and equipment for an extended period. Our recent
success in the Persian Gulf bears out the reality of the
"come as you are" war and how the President can achieve
public backing without a declaration of war ever being
raised as an issue.
IV. SUMMARY: The declaration of war is a troubled concept
that faces an uncertain future.
V. CONCLUSION: There are signs that we may be approaching a
period in our history when the changing nature of warfare,
the existence of the WPR, and our lack of resolve to approve
a declaration of war may limit the future usage of this
concept.
OUTLINE
THE DECLARATION OF WAR: ONE FOR THE HISTORY BOOKS?
THESIS STATEMENT: The declaration of war, while originally
thought of as the preferred option in justifying the use of
U.S. forces, is, in reality, a seldom-used concept that will
become increasingly difficult to enact with the passage of
the War Powers Resolution (WPR) and our recent success in
Southwest Asia.
I. Declaration of War Rarely Used in American History
A. Disparity between declared and undeclared wars
B. War of 1812
C. The Mexican War
D. The Spanish-American War
E. World War I
F. World War 11
II. Similarities of All Five Declared Wars
A. All declared wars were "popular" wars
B. All involved a strong incident to declare war
C. 80% involved blind Congressional support
III. The War Powers Resolution (WPR) of 1973
A. Basis for debate on war powers
B. Key elements of the WPR
C. Opinions on the WPR
IV. Role of Declaration of War in Modern Warfare
A. Declaration supports rare, unlikely type of war
B. Description of the modern war
C. Need for public support
THE DECLARATION OF WAR: ONE FOR THE HISTORY BOOKS?
MAJOR J. L. BACON USMC
CONFERENCE GROUP SEVEN
The concept of the declaration of war has been a
part of the American system of government since the
Constitution was adopted in 1787. Its justification
revolves around the requirement to manifest, via the
legislative process, the backing of the American people
regarding any involvement of U.S. combat forces. With
such reasonable justification, one would expect to see
the Congress approve a declaration of war in every
application of U.S. military force. However, its
history presents an inverse reality. Since 1798, the
United States has involved its military forces in over
200 conflicts. (11:126) Upon closer examination of
these numerous conflicts, it is important to note that
a formal declaration of war was issued on only five
occasions.
In 1973, a major step was taken to finally
prescribe how this country would send its troops to
war. The passage of the War Powers Resolution (WPR) was
seen by many as an attempt to reign-in the authority of
the Commander-in-Chief to commit U.S. military forces.
In reality, the WPR solidified the often tenuous
relationship between the executive and legislative
branches regarding an accepted method of introducing
American troops into a crisis. Our latest success in
the Persian Gulf, initiated solely within the
guidelines of the WPR, raises further questions about
the role of the formal declaration of war in future
conflicts theorized as being rapid, limited affairs.
Accordingly,the declaration of war, while originally
thought of as the preferred option in justifying the
use of U.S. forces, is, in reality, a seldom-used
concept that will become increasingly difficult to
enact with the passage of the War Powers Resolution
(WPR) and our recent success in Southwest Asia.
At the time of the Constitutional Convention in
1787, a formal declaration of war was neither required
by conventional international law nor practiced as
customary international law. John Jay stated in The
Federalist, "The founders were fully aware of the lack
of power actually contained in the war declaration
clause because hostilities were rarely preceded by
formal declarations of war." (10:16, 434-435) The
record shows that since 1798, there have been 211
instances of U.S. military hostilities without a
declaration of war, 91 instances of hostilities with
actual combat or ultimatums, 102 military actions
lasting more than 30 days, and 116 U.S. military
actions outside the Western Hemisphere. (10:47-91 and
11:126-155)
In our history, a declaration of solemn war, fully
invoking the international law of war, has been issued
on only five occasions: The War of 1812 (18 June 1812),
The Mexican War (13 May 1846), The Spanish-American War
(25 April 1898), World War 1 (6 April 1917), and World
War II (8 Dec 1941 against Japan and 11 Dec 1941
against Germany and Italy). Additionally, there have
been four conditional declarations of war: against
Paraguay in 1853, against Venezuela in 1871, and
against Spain in 1886 and 1898. Of these, only the last
resulted in an actual declared war with the U.S. (3:53,
56)
A short review of the events leading up to each of
the five declared wars is presented here as an aid in
understanding what caused our national leadership to
declare war against another country.
WAR OF 1812. For years following the American
Revolution, Britain sought opportunities to disrupt
American trade and foment unrest among the Indians.
Chief among their methods of intimidation was the
impressment of U.S. sailors into service for the
British. Since 1803, 917 American ships were seized and
approximately 7,000 American seamen were impressed into
British service.(7:106) The British also issued orders
to blockade American ports and to prohibit all U.S.
trade with foreign nations that didn't enter through
British seaports. The British, sensing the Indian
hatred of the white man, sold them weapons and planned
to use the Indians as their war proxies in America.
(7:102-106)
President Madison sent a war resolution to
Congress on 1 June 1812, citing the points mentioned
above as reason for the U.S. to declare war against
Great Britain. Congress went into secret session after
receiving the war resolution and entered into an
intense debate on the issue of declaring war. In a
close vote, Congress forinally declared war against
Britain on 18 June 1812.
THE MEXICAN WAR. Since the fall of the Alamo on 6
March 1836 and the subsequent rout of Santa Anna's army
by Sam Houston the following month, the dispute between
Texas and Mexico regarding an accepted agreement over
their border continued with no end in sight. Mexico
stated that the Nueces River was the southern border of
Texas; however, Texas, and later the U.S. Government,
indicated that the Rio Grande River, farther to the
south than the Nueces River, was the true southern
border with Mexico. A joint resolution was passed in
1844 to annex Texas and on 4 July 1845, Texas voted to
reliquish her independence and accept annexation into
the U.S. When Texas entered the Union on 29 December
1845, Mexico responded by declaring war against the
U.S. on 23 April 1846.
On 25 April 1846, Mexican calvary ambushed General
Zachory Taylor's forces on the Texas side of the Rio
Grande River, killing 16 Americans. Up to this point
the Congress was unaware of the Mexican declaration of
war and was hesitant to approve funding for Taylor's
army at the request of President Polk. With the news of
the Mexican attack into Texas, President Polk delivered
a war message to Congress on 11 May 1846, asking for a
declaration of war:
. . . after reiterated menaces, Mexico has passed the
boundry of the United States, has invaded our
territory and shed American blood upon American
soil. She has proclaimed that hostilities have
commenced, and that the two nations are now at
war...by act of the Republic of Mexico, a state of
war exists between that Government and the United
States." (3:55)
Congress passed a declaration of war against Mexico on
13 May 1846. The Senate vote was 40 to 2 in favor.
(5:18)
SPANISH-AMERICAN WAR. In the years leading up to
the end of the 19th Century, Spanish rule on the
Caribbean Islands grew increasingly hostile toward the
inhabitants. Native-born islanders had no right of
citizenship with Spain, even though their birthplace
had been under Spanish rule since the days of
Christopher Columbus. The inhabitants were heavily
taxed to support a government in which they had no
voice and saw little in return for their taxes. The
government was impotent in dealing with Yellow Fever
and Malaria, which spread throughout the islands to
North and South America and eventually back to Spain.
Beginning in 1895, a-provisional government was
constituted in Cuba and proclaimed their independence
from Spain. Insurgents began attacking Spanish rule in
Cuba. In return, the Cuban government imposed martial
law and conducted a roundup of all guerrillas, forcing
them into concentration camps. In an attempt to starve
out the guerrillas, the Cuban government's plan
backfired, resulting in widespread starvation among the
general population.(7:278-280) Over 400,000 people were
imprisoned and over 210,000 died from squalor and
disease. (1:2-3)
President McKinley attempted to resolve the plight
of the Cubans through diplomacy while U.S. citizens
smuggled weapons and ammunition to the insurgent groups
in Cuba. Concern was growing regarding the safety of
U.S. citizens living in Cuba and surrounding islands.
To provide a symbol of American concern, President
McKinley ordered the battleship U.S.S. Maine to Havanna
harbor. The Maine arrived and dropped anchor on 25
January 1898. On 15 February 1898, the U.S.S. Maine
exploded, killing 266 of her crew of 354. Investigators
concluded that the Maine was sunk by a submarine mine.
Americans, upon hearing of the sinking, were
adamant for revenge against the Spanish government.
President McKinley demanded indemnity for the Maine and
independence for Cuba. On 9 April 1898, Spain denied
independence for Cuba and President McKinley received
appproval from Congress to intervene on behalf of the
Cuban rebels. On 21 April 1898, the Navy established a
blockade of Cuba. Cuba responded by declaring war on
the U.S. on 24 April 1898. The following day, 25 April
1898, Congress formally declared war on Spain, drawing
strong public support. (5:280)
WORLD WAR I. President Wilson set a policy of U.S.
neutrality concerning the European war that erupted in
August 1914. He assisted Britain and France by sales of
war materials and loans. Despite the sinking of the
Lusitanla in May 1915, costing 120 American lives,
President Wilson held on to the neutrality concept.
After Wilson's reelection in 1916, American concerns
began to mount regarding Germany's role if she won the
war. Germany would have the ruling fleet and have open
access to European colonies, including the Caribbean.
(7:307-313)
On 31 January 1917, the German High Command
informed the U.S. that all ships would be sunk on sight
after 1 February 1917. President Wilson responded on 3
February by breaking U.S. diplomatic relations with
Germany. On 25 February 1917, the Cunard liner Laconia
was sunk without warning by a submarine off the Irish
coast, with the loss of American lives. In addition,
President Wilson learned the contents of a telegram
from German Foreign Secretary Arthur Zimmerman to the
German minister in Mexico City. The contents of the
"Zimmerman Telegram" were released on 1 March 1917:
If we are unable to keep the U.S. a neutral party
after submarine warfare begins on 1 February,
approach President Carranza of Mexico on the
subject of a triple alliance to include Germany,
Mexico, and Japan. Assuming a victorious outcome of
the war, Mexico will get back from the United
States its lost territory in Texas, New Mexico, and
Arizona. (8:58)
On 12 March 1917, the American steamer Algonquin was
sunk, followed 4 days later by the sinkings of U.S.
freighters Vigilancia, City of Memphis, and Illinois
with loss of American lives. President Wilson advanced
by two weeks the date for convening Congress, and, on 6
April 1917, Congress declared that a state of war
existed between the United States and Germany. (8:4-5)
WORLD WAR II. With Franklin D. Roosevelt's
inauguration on 4 March 1933, the U.S. entered into a
protracted period of isolationism. FDR believed in the
policy of the "Good Neighbor" regarding U.S.
involvement in foreign affairs, stating that he "would
dedicate this Nation to the policy of the good neighbor
- the neighbor who resolutely respects himself and,
because he does so, respects the rights of others."
(2:2) However, the Good Neighbor Policy failed to fit
into the world picture in 1941: the Nazi's were
advancing on Leningrad and Moscow and the Japanese,
while gaining territory in China, were still hungering
for Maylaysia, the Dutch East Indies, and the
Philippines. Despite these signs, FDR was more
concerned with his domestic "New Deal" program. (2:1-2)
The European nations were concerned with the U.S.
stance of neutrality. After the Atlantic Conference in
August 1941, Winston Churchill said of Roosevelt:
The President had said that he would wage war but
not declare it and that he would become more and
more provocative...he would look for an incident
which would justify him in opening hostilities. If
the U.S. continues to cling to its neutrality, the
emergence of a New Order in Europe and Asia seemed
assured." (2:141-142)
Attacks on the U.S.S. Greer and U.S.S. Kearny by
German U-boats pushed President Roosevelt to arm
merchant ships, establish a shoot-on-sight policy, and
amend the 1939 Neutrality Act. America was dropping its
neutrality legislation as the country edged closer to
war.
In Asia, a stalemate arose between the Americans
and Japanese about the pullout of Japanese troops from
China and the relinquishing of all holdings in S.E.
Asia. Tojo came to power on 16 October 1941, pledging
to fulfill Japan's destiny to expand into Asia.
Relations with Japan soured and diplomacy failed to
make any progress in settling the Japanese thirst for
dominance. Japan set a deadline of 29 November 1941 for
a U.S.-Japan agreement, which passed with no results.
On 1 December 1941, Tojo said:
. . . It is now utterly impossible for Japan to permit
the present situation to continue any longer. In
such circumstances, Japan now has no other way than
to wage war against the United States, Britain, and
the Netherlands in order to achieve a solution of
the present critical situation and secure its
existence and self-defense. (2:158)
The Japanese bombed the U.S. base at Pearl Harbor,
Hawaii on 7 December 1941 and Congress passed a
resolution declaring war on Japan the next day. On 11
December, Germany and Italy, part of the Tripartite
Pact with Japan, declared war on the U.S., who
responded with a declaration of war against Germany and
Japan that same day.
In a comparison of all five American declared
wars, three common issues stand out. First, all of
these wars could be termed "popular wars." For this
discussion, a popular war would be a war in which the
majority of the American-public supported and felt the
reasons for each were worth a fight. These reasons
included our national honor and right to free trade
(War of 1812); protecting U.S. territory from foreign
incursion (Mexican War); supporting humanity and the
expansion of the American Empire overseas
(Spanish-American War); defending the rights of a
neutral country (WW I); and protecting our national
security (WW II). The popular support of the people was
present before the actual declaration was passed by
Congress, reflecting the public's high fever to get the
U.S. involved militarily.
The second common factor in these declared wars is
the fact that the Presidents in power at the time the
declaration of war was approved saw such a declaration
as the last step in a long chain of events. They were
reluctant to proceed with a formal declaration of war
against an agressor nation until a specific incident or
incidents pushed them to ask Congress for the formal
declaration of war. These incidents included the
impressment of American sailors and the British arming
of Indians (War of 1812); repeated incursions by
Mexican General SantaAnna, resulting in American blood
spilled on American soil (Mexican War); protection of
U.S. citizens and the sinking of the U.S.S. Maine
(Spanish-American War); the sinking of American vessels
without warning while a neutral party to a European war
and the interception of the Zimmerman Telegram (WW I);
and the bombing of Pearl Harbor (WW II).
Finally, in only one of the five wars was the
declaration of war approved by the Congress after a
considerable congressional debate. (War of 1812: Senate
voted 19 For, 13 Against; House voted 79 For, 49
Against) (6:9) In all other wars, the declaration of
war reflected a Congress following Presidental
leadership in urging for a formal declaration of war.
The declarations of war in these cases were the result
of an assessment by Congress that war was what the
public and the President desired to settle the serious
nature of the problems facing the country at the time.
The Congress merely instituted what had already been
settled in the court of American public opinion and was
eager to appear supportive of the President's desire to
settle the issue by force.
The last declared war fought by the U.S. ended in
1945. Since that time, questions have arisen concerning
the authority of the President to involve U.S. forces
in armed conflict. The Vietnam War was the true
watershed of this issue as Congress intensely debated
the issue of who can enter this country into
hostilities with another nation. Their goal was to do
what the Founding Fathers felt they could not do - to
lay out the dividing line between the Constitutional
power of Congress to declare war and of the President
as Commander-in-Chief to commit U.S. troops. The result
was passage of the War Powers Resolution (WPR) (Public
Law 93-148) on 7 November 1973. By their vote, Congress
agreed with a statement made on this issue by Abraham
Lincoln in 1846:
The provision of the Constitution giving war-making
powers to Congress was dictated, as I understand
it, by the following reasons: Kings had always been
involving and impoverishing their people in wars,
pretending generally, if not always, that the good
of the people was the object. This our
[Constitutional] Convention understood to be the
most oppressive of all kingly oppressions, and they
resolved to so frame the Constitution that no one
man should hold the power of bringing oppression
upon us. (3:56)
There are several key elements of the WPR that
merit examination. First, before U.S. troops are
introduced "into hostilities or into situations where
imminent involvement in hostilities is clearly
indicated by the circumstances," the President is to
consult with Congress "in every possible instance."
(4:3) Second, after troops are introduced, in the
absence of a declaration of war, the President is to
submit a report to Congress within 48 hours. Third,
after 60 days (in special cases - 90 days), the
involvement of the troops is to be terminated, unless
Congress has taken affirmative action in the meantime
to either approve it beyond 60 days or has issued a
declaration of war. Finally, Congress can terminate the
involvement of troops prior to 60 days by concurrent
resolution (Presidential approval is not
required). (7:3)
The debate still continues on the accepted
responsibilities of the President as Commander-in-Chief
to involve U.S. forces in hostilities. The fact that
the WPR was passed over the veto of President Nixon led
him to make the following statement:
The restrictions which this resolution would impose
upon the authority of the President are both
unconstitutional and dangerous to the best
interests of the nation...the resolution will
strike from the President's hand a wide range of
important peacekeeping tools by eliminating his
ability to exercise quiet diplomacy backed by
subtle shifts in our military deployments. It would
give every future Congress the ability to handcuff
every future President merely by doing nothing and
sitting still. (4:7-8)
Since the passage of the WPR in 1973, both
Congress and the President have violated its provisions
in committing forces for the evacuation of Saigon, the
Mayaguez recovery, and the Iranian hostage rescue
mission. (10:35-96) Some see the WPR as an avenue of
using troops to quell a problem quickly without the
delay of Congressional debate over a formal declaration
of war. Others, such as President Nixon, see the
requirement to consult with Congress as a reduction of
their authority as Commander-In-Chief. However, most
observers see the WPR as an accepted and expedient
method of introducing forces into hostilities without a
declaration of war.
The truly infrequent use of the declaration of war
contradicts the idea that it is appropriate for every
use of American force. The great majority of military
involvements were neither popular enough to win the
strong support of the public and Congress nor involved
a strong enough incident to lead to a declared war as
the ultimate manifestation of American anger and desire
for retribution. Given the lessons from our
increasingly unpopular involvement in Vietnam, it is
reasonable to expect Congress to subject any notion of
a declared war to lengthy debate and to not side with
the historic record of blind support for Presidential
leadership. Indeed, the declaration of war seems
reserved for a type of conflict that may be passing
from the scene - the long, protracted, and widespread
war that modern theorists feel is the opposite of the
limited conflict indicative of the "modern war."
As our involvement of troops since the end of the
Vietnam War indicates, the limited war is becoming the
modern war of highest probability. Limited wars can be
conducted quickly with great success at solving
problems abroad, as Desert Storm so clearly
demonstrated. In reflecting on the U.S. involvement in
such conflicts as Grenada, Panama, and Southwest Asia,
it appears that the declaration of war may remain a
seldomn used concept since the WPR provides a legal
recourse to rapidly employ forces without the
requirement for a declaration of war.
The hard lesson taught to us by our involvement in
Vietnam was that this nation cannot place U.S. troops
in harms way without the support of the American
people. Colonel Harry Summers, Jr., in attempting to
describe the value of the declaration of war, states:
The Constitutional requirement for a Congressional
declaration of war served a dual purpose. It
insured public support at the outset, and through
the legal sanctions against dealing with the enemy,
it created impediments to public dissent.
Legalistic arguments that the form of the
declaration of war was out of date may have been
technically correct, but they obscurred the fact
that this form was designed to be an outward
manifestation of a critical substance - the support
and commitment of the American people...The failure
to involve the national will was one of the major
strategic failures of the Vietnam War. (9:16-17)
As recent events in Southwest Asia have shown, the
support of the people can be obtained without a
declaration of war. President Bush's superb handling of
the buildup and actual commitment of U.S. forces to
fighting in Iraq proved that the President can have
both Congressional and public approval for war without
a formal declaration of war. This fact shakes the very
justification for the design of the declaration of war
to unite the country for war. The low percentage of
declared wars fought by this country casts further
doubt on its applicability as the vast number of
conflicts were settled through American troop
deployments abroad without a declaration of war. The
ability to rapidly introduce forces into combat through
the provisions of the WPR greatly diminish the
opportunities to use the declaration of war again.
A strong message was sent by our latest American
war about the future use of the declaration of war.
This conflict, executed under the mantle of the WPR,
may have been the final coffin nail for a concept
terminally ill from under use and poorly suited to deal
with the current trend in modern warfare. Based on its
history and the future of warfare, the declaration of
war may indeed be one more concept for the history
books.
BIBLIOGRAPHY
1. Budinger, Nicholas J. Events and Influences of The
Spanish-American War. 1898-1902. Illinois: Spanish-
American War Memorial Commission, 1948.
2. Divine, Robert A. The Reluctant Belligerent:
American Entry Into World War II. New York:
John Wiley and Sons, Inc., 1979.
3. Firmage, Edwin B. and Wormuth, Francis D. To Chain
The Dog of War. Dallas: The Southern Methodist University
Press, 1986.
4. Holt, Pat M. The War Powers Resolution: The Role
of Congress in U. S. Armed Intervention. Washington,
D.C.: American Enterprise Institute For Public Policy
Research, 1978.
5. Montaigne, Sanford H. Blood Over Texas. New
Rochelle, New York: Arlington House Publishers, 1976.
6. Perkins, Bradford. The Causes of The War of 1812:
National Honor or National Interest? New York: Holt,
Rinehart, and Winston, 1962.
7. Perret, Geoffrey. A Country Made by War.
New York: Random House, 1989.
8. Spencer, Jr., Samuel R. Decision For War. 1917.
Rindge, New Hampshire: Richard R. Smith
Publisher, Inc., 1953.
9. Summers, Jr., Harry G. On Strategy: A Critical
Analysis of The Vietnam War. Novato, California:
Presidio Press, 1982.
10. Turner, Robert F. The War Powers Resolution: Its
Implementation in Theory and Practice. Philadelphia:
Foreign Policy Research Institute, 1983.
11. United States Senate Foreign Relations Committee.
War Powers Legislation. 1973. Washington, D.C.:
U.S. Government Printing Office, 1973.
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