Declare yourselves.

IN SEEKING to resolve large constitutional controversies, it is often prudent to start with the language of the Constitution. In order to provide for the common defense, the Constitution distributes the war powers of the national government between the President and Congress. Article I empowers Congress to "declare war," while Article II empowers the President to serve as "Commander-in-Chief." Not to be overly Borkian about this, it appears that there is a role here to be played by both branches of the government.

What precisely those respective roles are, of course, has been the subject of constitutional tension ever since President Jefferson deployed a squadron of warships to the Mediterranean in 1801 to repel Tripolitan pirates without the consent of Congress. As in the past, these matters will be resolved by the normal interplay of political processes. Because these processes, in the end, are conducive to executive action, there will be periodic and largely ineffectual efforts by disgruntled members of Congress to involve the courts in disputes. It is a nice dilemma, but for our part, we would rather have the military policy of the country conducted by Senator Tom Harkin than by Judge Harold Greene.

We should supplement our look at the constitutional text with a review of its surrounding history. James Madison and Elbridge Gerry were the moving forces at the Convention for amending an earlier draft of the Constitution which described Congress's power to "make war" and substituting instead the power to "declare war." This, they observed, would more clearly leave to the Executive the "power to repel sudden attacks." This change not only clarified that the President might take emergency actions without awaiting a formal vote by Congress but also underscored that the conduct of war itself was to be vested in the President.

Nevertheless, as Alexander Hamilton observed in The Federalist #69, the President's war power was inferior to that of the British monarch, or even of the governors of the states in regard to their own militias, because of the role of Congress in the "declaring" of war. Gerry himself, in the course of debate over his and Madison's amendment, stated that he "never expected to hear in a republic a motion to empower the Executive alone to declare war."

Until the outset of the cold war, this rough understanding of the apportionment of constitutional war powers was generally adhered to. On nearly a hundred occasions, the President committed American troops to the use of force abroad without constitutional authorization, almost always in the context of minor skirmishes or to put a stop to interruptions of American commerce. For more substantial military commitments, however, Congress on six occasions was called upon for a formal declaration of war. Nonetheless, responsibility for the waging of war-its tactics and strategies-rested exclusively with the Executive. This constitutional equilibrium was ratified by the Supreme Court in several Civil Warrelated decisions.

With the cold war sharply expanding the range of United States interests, the President's "power to repel sudden attacks" was transformed in recognition that An attack on a country far from our shores can impinge directly on the Nation's security," as a 1966 State Department defense of our involvement in Indochina put it. In Korea and Vietnam, prolonged wars were fought by United States soldiers without formal declarations of war. Perhaps not coincidentally, these were the first wars in our history not to be concluded wholly successfully.

Both the Constitution and sound public policy (as well as wise polities) suggest that the President should seek the concurrence of Congress in going to war with Iraq. The President needs a Congress that shares his self-interest in the success of our Gulf policy, not one that is well positioned to take political advantage whatever the outcome.

Justice Robert Jackson wrote in 1952 in an opinion bearing upon President Truman's conduct of the Korean War, "Congressional inertia, indifference, or quiescence may sometimes, at least as a practical matter, enable, if not invite, a measure of independent presidential responsibility." On similar grounds, President Bush could justify unilateral executive action in the face of Congress's refusal after five months to schedule a vote on whether to declare war. If the opportunity presents itself, however, President Bush-and the Constitution-will benefit if Congress is involved in this momentous decision.