Declare War Clause: Article 1, Section 8

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When the Constitution was created, Article 1, Section 8 dealt with federalism, the separation of the powers on the national level versus the state level. The common interpretation of this section has changed over time, and one can generalize them into four broad categories in chronological order. At first, this section was perceived as Enumerated Rights Federalism, which meant that the national government was characterized as a government with limited powers. The national government had power as far as the enumeration in Section 8 went, but the states had everything else that was left over. State power was not given by outlining them directly, but instead by outlining the power of the federal government.

The second category was Fundamental Rights Federalism, where after the Civil War and the Civil Rights Act, the federal government was given the power to override state legislation in order to protect the fundamental rights of American citizens. The third category was New Deal Federalism, which ended Enumerated Rights Federalism, because this gave the federal government the power to regulate the states themselves in terms of intrastate commerce.

Now, enter into the modern era, where courts are trying to find a way to draw lines in order to identify where Congress’ powers end and where states’ powers start. Such efforts include preventing Congress from interfering in noneconomic intrastate activity. This is called State Sovereignty Federalism, where courts try to carve out a zone of autonomy for the states. Federalism has been debated for a long time, whether it be the amount of rights delegated to the national government and Congress versus the states. Some are staunch supporters of giving states the vast majority of rights, pointing to how individual states can establish different legislative/economic systems as a form of experimentation to see which sort of system works best.

Some argue that the methods of the court in terms of determining federalism based on the sovereignty of the states is not a method that adequately takes into account the intricacies of the relationship between the federal and state governments. When talking specifically about the Declare War Clause in Section 8, the common interpretation of that also falls into debate. However, the two sides of the debate are a bit different from the federal vs state government debate.

The debate in this clause specifically is between the executive branch and the legislative branch. The wording of the clause states that Congress can “declare war”, make legislation about conquering on land and water, authority to permit privateers to use force upon an enemy, and authority to legalize the seizing of another foreign nation’s property as repayment for debt. Up until the modern era, it has been unclear whether the Declare War Clause permits the executive branch to respond to sudden violent attacks.

In the case of The Bey of Tripoli, when war was declared upon the United States, President Thomas Jefferson sent frigates in response. However, Congress never formally declared a state of war with the Bey of Tripoli, and ever since, it has been unclear to what extent the executive branch can respond with force to a threat without the authorization of Congress, if at all. Judicial courts have also largely left this issue alone, so the executive branch and Congress have simply needed to reach a state of compromise and agreement with each other.

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