The Historical Presidency: “Generalissimo of the Nation”: War Making and the Presidency in the Early Republic

One of the central issues in the debates leading up to the Constitution's ratification was the proper role of the executive. Of particular concern to many were new powers given to a president to command the military and call the state militias into national service. The well-known anti-Federalist Cato exclaimed that "He is the generalissimo of the nation, and of course has the command and control of the army, navy and militia; he is the general conservator of the peace of the union ... Will not the exercise of these powers therefore tend either to the establishment of a vile and arbitrary aristocracy or monarchy?" (Storing 1981, 113-16). (1) Patrick Henry similarly remarked that "your president may easily become king" (Ketcham 2003, 213). In response, Alexander Hamilton in Federalist #69 defended the commander-in-chief power as nothing extraordinary: The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature. Congress, Hamilton averred, would remain primary in the politics of deciding when and where to go to war (Kramnick 1987, 398). Yet in the modern period, at least, scholars have come much closer to agreeing that Cato was correct in his warning that presidents would be largely unconstrained when they decide to start a war. The consensus view among political scientists, historians, and legal experts is that the modern presidency has enabled presidential aggrandizement in war making (Schlesinger 2005). Louis Fisher, for example, has written numerous articles and books arguing that presidents nowadays are virtually unrestrained by Congress in starting unilateral wars (Fisher 1994-1995, 1998, 2000a, 2000b, 2004, 2005, 2008). Some have gone so far as to argue that this state of affairs was designed by the Constitution's framers and is normatively desirable as well (Yoo 1996, 2005). Indeed, it seems that Hamilton's prediction has found little support on either side of the debate about the proper balance between presidents and Congress in war making. In a recent rereading of this state of affairs, William Howell and Jon Pevehouse (2007) have presented new data that demonstrate the means through which members of Congress still influence presidential decisions over whether to engage in armed conflict. According to them, the partisan composition of Congress, posturing in the media, and raising public doubts about potential engagements all have significant influences over presidential deliberations regarding the timing and content of military conflicts. This important new line of work, joined by that of other scholars, has raised a fresh perspective on the modern presidency and demonstrated how even the most powerful presidents face limitations on their prerogatives (Carter and Scott 2009; Kriner 2010; Marshall and Prins 2011). Despite the significance of these findings, something is oddly missing from these new works: an analysis of wars that took place prior to the modern era. Howell and Pevehouse, for example, state that "for much of American history ... most major uses of force received formal sanctioning by both Congress and the president. While presidents occasionally pressed outward on the boundaries of their constitutional authority ... Congress's rightful place in deliberations over war appeared reasonably well established" (2007, 3). Having laid out that stark thesis, the authors proceed to ignore all military actions prior to World War II. …