Madison Understood the War Power

Terence P. Jeffrey
Tue, 31 Mar 2026 17:56:23 -0700
Opinion

Former Supreme Court Justice Antonin Scalia visited Princeton University in 1995 and gave a lecture in which he discussed his approach to interpreting the Constitution.

He argued that what mattered most was the original meaning of the text when it was ratified.

"I will consult the writings of some men who happened to be Framers — Hamilton's and Madison's writings in the Federalist, for example," he said. "I do so, however, not because they were Framers and therefore their intent is authoritative and must be the law; but rather because their writings, like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood."
Updated: Wed Apr 01, 2026

Former Supreme Court Justice Antonin Scalia visited Princeton University in 1995 and gave a lecture in which he discussed his approach to interpreting the Constitution.

He argued that what mattered most was the original meaning of the text when it was ratified.

"I will consult the writings of some men who happened to be Framers — Hamilton's and Madison's writings in the Federalist, for example," he said. "I do so, however, not because they were Framers and therefore their intent is authoritative and must be the law; but rather because their writings, like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood."

"What I look for in the Constitution," he said, "is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended."

Scalia then lamented that adherence to the original meaning of the Constitution was increasingly challenged by an argument that the meaning of the Constitution was changeable. "But the Great Divide with regard to constitutional interpretation is not between the Framers' intent and objective meaning; but rather that between original meaning (whether derived from Framers' intent or not) and current meaning. The ascendant school of constitutional interpretation affirms the existence of what is called the 'living Constitution,' a body of law that (unlike normal statutes) grows and changes from age to age, in order to meet the needs of a changing society. And it is the judges who determine those needs and 'find' that changing law."

Scalia adamantly rejected this "living Constitution" approach: "It surely cannot be said that a constitution naturally suggests changeability; to the contrary, its whole purpose is to prevent change — to embed certain rights in such a manner that future generation cannot take them away."

On March 31, Secretary of War Pete Hegseth gave a press briefing in which he declined to rule out the possibility that President Donald Trump would use ground forces in the ongoing conflict with Iran.

"(W)ithout asking you to comment on things that you can't talk about," a reporter said to Hegseth, "what is your message to Americans who love the president and strongly believe in him, but are very worried about this notion of boots on the ground?"

"As far as President Trump and boots on the ground, I don't understand why the base — which they have already, they understand, wouldn't have faith in his ability to execute on this," said Hegseth in part of his answer. "Look at his track record of pursuing peace through strength, America First outcomes. And what he's simply saying and it's exactly true and I've said from this podium too, we're not going to foreclose any option.

"You can't fight and win a war if you tell your adversary what you are willing to do or what you are not willing to do, to include boots on the ground. Our adversary right now thinks there are 15 different ways we could come at them with boots on the ground. And guess what? There are," he said.

"So, if we needed to, we could execute those options on behalf of the president of the United States and this department," said Hegseth. "Or maybe we don't have to use them at all.

"Maybe negotiations work, or maybe there's a different approach," he said. "The point is to be unpredictable in that; certainly not let anybody know what you're willing to do or not do."

Under the Constitution, however, the power to authorize the use of military force — other than to repel an attack — is granted to Congress, not the executive.

As Scalia might ask: How was the constitutional war power "originally understood"?

The Constitutional Convention debated the war powers clause on Aug. 17, 1787. The language of the original draft, as this column has noted before, gave Congress the power "to make war." Pierce Butler of South Carolina objected to this language. "He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it," said the notes on the convention taken by James Madison of Virginia.

Madison and Elbridge Gerry of Massachusetts then jointly suggested an adjustment. "Mr. Madison and Mr. Gerry moved to insert 'declare' striking out 'make' war, leaving to the Executive the power to repel sudden attacks," said Madison's notes.

Roger Sherman of Connecticut, said the notes, "thought it stood very well. The Executive shd. be able to repel and not to commence war."

"Mr. Gerry," said Madison's notes, "never expected to hear in a republic a motion to empower the Executive alone to declare war."

The convention agreed with Madison's and Gerry's proposal and approved the constitutional language giving Congress the power "to declare war" — which, as they understood it, would leave "to the Executive the power to repel sudden attacks."

On April 2, 1798, Madison wrote a letter to then-Vice President Thomas Jefferson in which he addressed the war power. "The constitution supposes what the History of all Govts demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it," said Madison. "It has accordingly with studied care, vested the question of war in the Legisl."

Former Supreme Court Justice Joseph Story, who served on the court from 1812 to 1845, wrote in his Commentaries on the Constitution of the United States: "The power to declare war may be exercised by congress, not only by authorizing general hostilities, in which case the general laws of war apply to our situation; or by partial hostilities, in which case the laws of war, so far as they actually apply to our situation, are to be observed."

On March 2, as this column has noted before, Secretary of State Marco Rubio explained the defensive nature of the military strikes that the United States had initiated against Iran.

"We knew that there was going to be an Israeli action, we knew that that would precipitate an attack against American forces, and we knew that if we didn't preemptively go after them before they launched those attacks, we would suffer higher casualties and perhaps even higher those killed, and then we would all be here answering questions about why we knew that and didn't act," said Rubio.

Although these acts were preemptive, they could be justified as repelling a sudden attack — and, thus, not need prior congressional authorization.

But if Trump is now considering the use of ground forces in a continuing conflict with Iran, he should first seek congressional authorization.