SOONER OR LATER Congress is going to have to decide whether to declare peace. I’m not saying I’m for it, and I’m not saying I’m against it. But there is a faction that reckons we shouldn’t embark on a peace without declaring it. No doubt some hoped to dodge such a démarche, but they forgot about the New York Times, which just issued an editorial calling on Congress to repeal the authority it granted the president to use military force in the war with al Qaeda.
Now that the Times has issued such a bull, we’re never going to hear the end of it. The Gray Lady will constantly embroider the question like it does with gun control or gay marriage or bans on cigarette smoking. Fair enough. The truth is that the issue of who gets to end a war on which America has embarked is a constitutional conundrum. While the Constitution gives Congress the power to declare war, it is silent on the power to declare peace.
Nor is this some kind of oversight. It turns out that at the convention that drafted the Constitution in 1787, a proposal was made to grant Congress the power not only to “declare war” but to “make peace.” It was, Edward Corwin wrote in the Michigan Law Review, rejected unanimously. The thinking seems to have been that vesting the power in Congress would establish making peace as more difficult than leaving it un-enumerated.
This is a point that should be learned well by those who want Congress to step up in the current crisis. While the Constitution uses the word “war” six times, it uses the word “peace” but thrice.* None of those references involve a declaration of peace or an ending of war. No doubt there are those who will say that since Congress isn’t granted an enumerated power to declare peace, then Congress doesn’t have the power to do it at all.
The Constitution does declare that all powers not granted to Congress are reserved for the states and the people. By this construction, it looks like the only authority to declare peace would rest with the states. Yet would that not seem a bit inefficient? How could one have 50 different states making a decision to end a war? They may almost never start a war, being prohibited in the Constitution from even engaging in war unless they’re “actually invaded” or in “imminent Danger.”
If the states are restricted in their authority to engage in war, can they be trusted with declaring the peace? And what would happen if some states declared peace and others didn’t? It’s tempting to say that the courts ought to be the branch to declare peace, since Congress gets to declare the war and the president gets to fight it. That, however, has never been done in our republic. It has been either the president or the Congress who have declared the end to our wars.
A peace treaty struck at Ghent ended the War of 1812. It was negotiated by, among others, a future president, John Quincy Adams. The Battle of New Orleans was fought after the treaty was signed, owing to the fact that there was no Internet. The Mexican War was ended in 1848 by what is known as the Treaty of Guadalupe Hidalgo. The Civil War wasn’t ended by a treaty; President Andrew Johnson simply declared that it was over—a year and two months after the last Confederates surrendered.
The Spanish-American War was ended by a treaty scratched out in Paris, France, where our envoys (shown left) had been sent a note of humility from President McKinley: “The march of events rules and overrules human action.” Spain surrendered Cuba and ceded to America not only Puerto Rico, but even the Philippines—in exchange for $20 million.
It took a heap of paperwork to end World War I. First came the armistice of 1918. Then came the Versailles Treaty, which ended the state of war between Germany and the Allied powers. There were treaties ending the war with the other belligerents. Then came the Knox-Porter Resolution, which was signed by President Harding on July 2, 1921.
Hostilities in World War II were ended by the Associated Press. This is one of the most famous examples of a level-headed newspaperman getting the jump on grandstanding politicians. The deed was done by a reporter named Edward Kennedy, who had been in a press pool that, on May 7, 1945, was hustled into a C-47 and flown to Reims, France. They were famously kept in the dark as to where they were going or why until they’d been taken aloft. It turned out to be to cover the German surrender.
A controversy erupted once the documents were signed. General Eisenhower wanted the reporters to sit on the news until Stalin could hold a ceremony in Berlin. But a German radio station in an area occupied by the Allies aired the news, at which point Kennedy got on the blower to the AP bureau in London and dictated the story. It created an uproar among press and politicians, but Kennedy understood the logic of rushing out the dispatch lest more of our GIs die for want of word the war in Europe was over.
Truman himself didn’t issue a formal declaration until the last day of 1946. Congress itself waited until 1951 to pronounce the end of the war in Germany and until 1952 to ratify a peace treaty with Japan. The Constitution offered little guidance. Nor, for that matter, does history offer much precedent for agitation aimed at unilateral cessation of hostilities when victory has yet to be achieved. That didn’t even happen in Vietnam, which was ended by a 1973 accord signed in Paris.
What the Times wants now is a repeal of the resolution that authorized the president to use “all necessary and appropriate military force” against those nations and individuals who attacked us on September 11, 2001. The resolution passed Congress by an overwhelming bipartisan margin. The Times worried it “could become the basis for a perpetual, ever-expanding war that undermined the traditional constraints on government power.”
The Founders felt this fear, too, which is why they separated what one scholar, Louis Fisher of the Cato Institute, calls the powers of the sword and the purse. He testified on the point before the Senate in 2007, quoting Madison as writing (his italics) that “[t]hose who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded.”
This is one of those famed checks and balances in the great contraption of our Constitution, as is the constitutional oath itself. For one thing, the president is bound by oath to defend the Constitution of the United States. So are members of Congress, who swear a slightly more complex oath to “defend the Constitution of the United States against all enemies, foreign and domestic.” So no doubt the Times’ call will be answered by those who wonder how a declaration of peace would fit the bill, when enemies of the United States are still appearing in arms.