By Logan Beirne*
Olin Searle Scholar, Yale Law School
**This is the first installment of the “What Would George Do?” series — a joint project of ConSource and the National Constitution Center’s Constitution Daily.
The recent tragedy at the U.S. consulate in Benghazi, Libya has reignited the debate over American involvement in the region. But how would have our first Commander-in-Chief, George Washington, handled the situation?
Since this spring, commentators have expressed alarm over the President’s use of military force throughout the Muslim world without authorization from Congress. As the President sends fresh marines into Libya, American forces continue drone attacks in Pakistan, Yemen, and Somalia, and the U.S. weighs intervention in Syria, we are once again in the throes of a long-standing debate over the constitutionality of executive war-time power.
Article I of the U.S. Constitution bestows the President with “commander-in-chief powers,” but provides virtually no elaboration on what they entail. The laconic text was left in such a state, in part, because everyone in 18th century already knew what this phrase meant: those powers wielded by General George Washington.
“Why quit our own to stand upon foreign ground? Why, by interweaving our destiny with that of any [other nation], entangle our peace and prosperity in the toils of … ambition, rivalship, interest, humor or caprice?”
During the Revolution, Washington served as the nation’s only “commander-in-chief” prior to the Constitution. During that time, he gallantly developed the very meaning of the term amidst the crucible. When the Framers gathered in Philadelphia at the Constitutional Convention, he served as not only the President of the Convention, but as the model for the newly formed Executive Branch. So when they gave the President “commander-in-chief” powers, Washington served of the living embodiment of those terms. The precedents he set as the nation’s first commander-in-chief would, thus, have a lasting impact on the meaning of the Constitution.
As we debate the current administration’s military policies, we might do well to ask ourselves “What Would George Do?” An analysis of George Washington’s two terms as president, reveal two interesting precedents: an inclination toward isolationism and congressional consultation.
Washington was highly reluctant to entangle the United States in the affairs of other nations, even ignoring allies’ pleas for help securing liberty. For example, when the French overthrew the chains of monarchy in their quest for democracy, Washington refused to help. And when Britain subsequently declared war on France, Washington again steered clear.
Washington’s decision was motivated by his unashamed desire to protect America’s self-interest—another war with Great Britain would be too costly and was unlikely result in an American victory. Washington famously asked in his farewell address, “[w]hy quit our own to stand upon foreign ground? Why, by interweaving our destiny with that of any [other nation], entangle our peace and prosperity in the toils of … ambition, rivalship, interest, humor or caprice?”
When Washington did involve the United States in conflict, he made sure it was of direct benefit to the nation. When Haitian slaves revolted in the French colony of Saint-Domingue, Washington lent aid to the French. His decision was motivated by his desire to serve American interests: he used the aid to repay the U.S.’s debt owed to France for assistance during the Revolutionary War, and also sought to preserve Southern economic interests by dissuading American slaves from following suit.
It is worth noting that in the rare instances in which Washington determined that the direct benefits outweighed the costs of committing U.S. lives and resources abroad, he made sure to first obtain congressional approval for his actions. Modern presidents, including President Obama, have not necessarily followed Washington’s lead.
II. Congressional Approval
In 2011, Yale Law professor Bruce Ackerman poignantly wrote, “In taking the country into a war with Libya, Barack Obama’s administration [broke] new ground in its construction of an imperial presidency – an executive who increasingly acts independently of Congress at home and abroad.” In ordering the U.S. air strikes on Libya, President Obama consulted the United Nations, NATO, and even the Arab League, but apparently not the United States Congress. In fact, as Professors Ackerman and Hathaway have pointed out, “[h]e ignored repeated calls — by … Hillary Rodham Clinton and Joe Biden, among others — to submit it to Congress for approval.” Along the same lines, the President has not obtained legislative authorization for his drone strikes within Pakistan, Yemen, or Somalia. George Washington, among others, would be surprised, to say the least.
The Constitution was specifically designed to ensure congressional involvement in the initiation of hostilities. James Madison declared, “The power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature… . the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.” And even during those actions without a formal declaration, the legislature played an important role in authorizing the Executive’s actions.
Since before the Revolution, Americans had fought against a confederation of numerous Native American tribes for control of the Northwest Territory. After the United States emerged triumphant, the seething British incited the Native Americans to renew their attacks. In response, President Washington sent troops to enforce the U.S.’s control over the territory. While he did not have a formal declaration of war, this was a continuing war in which Congress was very much so involved. Washington defended the land claims granted by Congress and the American settlers directly under siege. He was in close communication with Congress, which responded favorably to Washington’s pleas and granted the funds to raise the army he sent. While undeclared, this was a war that was granted and continually received congressional approval.
Following Washington’s lead just a few years later in 1789, President John Adams commanded the U.S. military against France in the “Quasi War.” Although Congress did not declare war, it passed the long-winded “Act Further to Protect the Commerce of the United States.” While it did not exactly roll off the tongue, the Act did the trick – Adams had Congressional authorization to protect American shipping under attack.
Again, in 1801, when pirates were likewise threatening U.S. ships, President Jefferson attacked – ironically – Tripoli without a declaration of war. However, he did have other congressional votes to back him. Congress authorized him to seize the ships of Tripoli and “to cause to be done all such other acts of precaution or hostility as the state of war will justify.”
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At our nation’s founding, military action was a last resort—one only utilized to directly better American interests or defend against attack. And when the Washington and the first Presidents led the nation into battle, Congress was deeply involved in the initiation of military action.
This history remains highly relevant as we navigate our response to the dire situations in Libya, Pakistan, Yemen, and Syria. In order to fully understand the powers of the president as this list keeps growing, we may better understand the terse text of Article II by looking to Washington and our founding fathers for guidance on how to respond to unique global challenges while remaining faithful to our nation’s core constitutional principles.
* Logan Beirne is an Olin Searle Scholar at Yale Law School and the author of Blood of Tyrants: Washington’s War. He received his J.D. from Yale, was a Fulbright Scholar at Queen’s University, and practiced as an attorney at Sullivan & Cromwell LLP. Logan is directly descended from Revolutionary War patriots and his family tree includes the “Father of the Constitution,” James Madison. Some of Washington’s papers were discovered in his ancestor’s storage chest.