history of the governing process. By examining our historical origins and our subsequent national experience, we are, in effect, celebrating the bicentennial of the greatest of all political documentsthe Constitution of the United States.

The business of the War Powers Act is something that I think goes to the heart of relationships in our Government. I have said that I would like to see the War Powers Act repealed, and I think it's unconstitutional. But, nevertheless, I think in reality it will probably be amended as a result of these hearings.

In their belief in the need for a separation of powers between the three branches of Government, the Founding Fathers relied on the vision of the celebrated French philosopher Montesquieu. As Justice Louis Brandeis observed in Myers v. the United States, the separation of powers according to Montesquieu translated into security for the people and was accepted as such by the Founders. Not surprisingly, a modern day Supreme Court in Buckley v. Valeo onehalf century later emphasized the intent of the Framers that the powers of the three great branches of the National Government be largely separated from one another.

The war power did not derive from emanations or penumbras, but from the minds of very practical men inside a hot, locked room in Philadelphia on August 17, 1787. They carefully delineated making war from declaring war, a distinction that has confounded many ever since. Making war translates in modern day language into defending the national security interests of the United States. Declaring war is exactly what that term implies: a formal statement of hostilities which, in turn, triggers a whole series of international legal duties and obligations. A declaration of war, as the French came to say after July 14, 1789, involves a nation in arms utilizing its major resources and seeking the often elusive goal of military victory over an opposing enemy. That is why Rufus King at the Constitutional Convention referred to making war as an executive function.

A noted American jurist and legal scholar in a famous essay published at the turn of the last century observed that history and law were inevitably bound up with one another. Nowhere is this more apparent than in the significant Supreme Court case of Bas v. Tingy, 1801, decided 1 year after Congressman John Marshall's much quoted statement about the President being the sole organ of American foreign relations. In that case, a unanimous court indicated that the United States could become involved in hostilities without a declaration of war. Members of that court were contemporaries of the Founders and two of the first sitting Justices, John Rutledge and James Wilson, were themselves Constitutional Convention participants. Surely this court knew the intention of the Founders in such matters. They had lived their own history.

With the respect to the Commander in Chief power, historian Clinton Rossiter, author of a landmark text entitled "The American Presidency," has asserted that "the President's power to command the [armed] forces swells out of all proportion to his other powers." In a revised edition published at the end of the Eisenhower era, Rossiter lamented: "Congressmen are more likely to needle the President with inactivity and timidity than to accuse him of acting too swiftly and arbitrarily." How things have changed.

If I remember correctly, Professor Schlesinger was one of the sharpest critics of President Eisenhower as a do-nothing President in foreign policy. We still are stirred by the dramatic words of President John F. Kennedy's inaugural address when he pledged to go anywhere and to pay any price in the cause of freedom and democracy. After Kennedy's tragic assassination, the leaders of his party seemed to have applied a cost-benefit analysis to Presidential powers in the arena of U.S. foreign policy.

In the 200 years of this Republic, the United States has been involved in approximately 200 military conflicts, beginning on the high seas in 1789 and continuing in 1988 in the Persian Gulf. War has officially been declared a half dozen times throughout American history. In the nine decades preceding the Constitutional Convention, the countries of the Western world fought in 38 wars and only 1 of them was declared. At the close of the Argentina conference in 1940, President Franklin D. Roosevelt confided to his soonto-be British ally that he intended to wage war and not to declare it. This is exactly the distinction made by the Framers that hot summer day in Philadelphia when they distinguished between making war and declaring war.

Yesterday morning, Mr. Chairman, during our first war powers hearing, House Foreign Affairs Committee Chairman Dante Fascell asked how do you define "war." The long history of constitutional practice provides the best answers available. The Founders were well aware of the need for national security. That was one of the reasons the Philadelphia convention was originally summoned. Could it be that the men of Philadelphia did not spend much time on the precise distinction between war and hostilities because they knew the difference and had no need to debate it at length?

Mr. Chairman, I do not intend to trace the history of the Republic as it relates to the great issues of war and peace. I will leave that to our eminent witnesses whom we are honored to have here. But I think we ought to recognize that 200 years of state practice have had some legal meaning for the operation of our constitutional system. I don't agree with General von Clausewitz that war is merely diplomacy by other means. I do think, however, that the national interest sometimes mandates the use of armed force or the threat of armed force. And I do not think that a congressional foreign policy is vastly superior to an executive branch foreign policy. As Secretary of State George Shultz has repeatedly said, 535 Secretaries of State are 534 too many.

Professor Rossiter cogently observed more than a quarter century ago: "The Presidency of the future will grow out of the Presidency of the present." We cannot afford to make the future hostage to our present whims. History may or may not teach, but it provides certain examples. It also demonstrates that wrong choices have bad results.

The War Powers Resolution of 1973 was a wrong choice by the Congress. Let us undo the minor constitutional damage that has already been done before the greater political harm befalls us.

Mr. Chairman, I would conclude by saying that this morning I was on a call-in TV show, and someone asked me to predict what would happen to our hearings and the legislation if a Democratic President were elected together with a Democratic Congress. And I

predicted it would probably die until the next time we have a Republican President and a Democratic Congress or vice versa because really it is a wrestling match between the two parties. But I hope because of this wrestling we do not do more constitutional damage than we have already done.

Mr. Chairman, I look forward to hearing from our distinguished witnesses.

The CHAIRMAN. Senator Sarbanes.

Senator SARBANES. Mr. Chairman, I have no statement. I know we may be voting shortly, and I'm very anxious that we should have the opportunity to hear from our two distinguished witnesses that are here today. I'm quite prepared to proceed to their statements.

The CHAIRMAN. Thank you.

Mr. Schlesinger, if you would lead off please.

STATEMENT OF ARTHUR M. SCHLESINGER, ALBERT SCHWEITZER PROFESSOR, CITY UNIVERSITY OF NEW YORK, NEW YORK, NY

Mr. SCHLESINGER. Mr. Chairman, I am honored by the invitation to appear before this subcommittee and pleased to share this table with Forrest McDonald, one of our noted scholars of the Constitution.

The topic under your consideration goes to the very heart of the conundrum of democracy: How to reconcile democratic control of the warmaking power with the imperious requirements of foreign policy. My qualifications, such as they are, for addressing this problem are that it is one that I have had to study for half a century as a historian and also one that I have periodically encountered over nearly half a century as an occasional government official.

I have here a statement which I will submit in extenso for the record, but which I will abbreviate for the purposes of this presentation. The opening parts deal with the actual intentions of the Framers of the Constitution with regard to the warmaking power. The Constitutional Convention had no stouter champion of Executive power than Alexander Hamilton, but even Hamilton vigorously rejected the notion that foreign policy was the personal prerogative of the President. "The history of human conduct," Hamilton wrote in the 75th Federalist, "does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of the President of the United States." Abraham Lincoln accurately expressed the purpose of the Framers with regard to the warmaking power when he wrote 60 years later that "they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us."

The Framers, in short, envisaged a partnership between Congress and the President in the conduct of foreign affairs with Congress, and particularly the Senate, as the senior partner. Hamilton's comment on the treatymaking power applies to the broad legislative-executive balance with regard to foreign policy: "The joint possession of the power in question, by the President and Senate,

would afford a greater prospect of security than the separate possession of it by either of them."

One would think that this historical recital might impress an administration devoted to what the late attorney general has called "the jurisprudence of original intention" and thereby settle some of the arguments that assail us today. For no one can doubt that the original intent of the Framers was to assure Congress the major role in the formulation of foreign policy and above all to deny Presidents the power to make war on their own. Yet the present administration somehow manages to champion a theory of inherent Presidential prerogative in foreign affairs that would have appalled the Founding Fathers.

This theory of Presidential supremacy has only crystallized in recent times. While early Presidents did not hesitate to use armed force without congressional authorization to protect American lives, property, and interests, they used it typically against pirates, brigands, revolutionaries, and tribes rather than against sovereign states. And as Judge Sofaer wrote in his notable work, "War, Foreign Affairs and Constitutional Power," "At no time did the Executive claim inherent power to initiate military action.

Nor indeed did Lincoln in 1861 or Franklin Roosevelt in 1941 claim that power. They undertook warlike and plainly unconstitutional actions because they believed that the life of the Nation was at stake and that their actions responded, in Lincoln's words, to "a popular demand and a public necessity." They rested their case not on assertions of constitutionally valid unilateral Presidential power, but rather on versions of John Locke's old doctrine of emergency prerogative beyond the Constitution.

The claim of inherent Presidential power to send troops into ongoing or potential combat began with President Truman in 1950. It rests doctrinally on an extravagant interpretation of the Commander in Chief clause as a grant of independent substantive power, an interpretation rejected by the Framers and never sustained by the Supreme Court. It rests also on a misreading of the court's 1936 decision in the Curtiss-Wright case. That case did not, as some argue, vindicate the idea of inherent and unilateral Presidential power to go to war. It didn't even involve the warmaking power. It involved the commerce power, and what it did was to sanction Presidential action within a framework laid down by the Congress. As Justice Jackson subsequently wrote, Curtiss-Wright "involved not the question of the President's right to act without congressional authority, but the question of his right to act under and in accord with an act of Congress."

The transfer of foreign policy warmaking power from Congress to the Executive results most of all from our situation in the world. The Republic has become a superpower. It has lived now for half a century in a state of chronic international crisis, real, imagined, and contrived. Under the pressure of incessant crisis, Congress has gladly relinquished many of its constitutional powers to the Presidency. Perhaps it has done so because the congressional record of error between the wars-from the rejection of the Versailles Treaty to the rigid neutrality legislation of the 1930's-had produced an institutional inferiority complex. Perhaps Members of Congress are intimidated by Executive claims of superior knowl

edge and wisdom. Perhaps they simply prefer to dodge responsibility and turn national decisions over to the President. For whatever reason, Congress has let constitutional powers slip away and Presidents now claim the warmaking power as their personal property. It is too bad that this should be the case, for history, I believe, abundantly confirms Hamilton's proposition that the best security lies in partnership between the two branches rather than in separate possession of the warmaking power by either one of them. Neither branch, after all, is infallible. Each can benefit from the experience and counsel of the other.

It is a delusion, sedulously encouraged by the executive branch, that Presidents are necessarily wiser or even better informed than Congress. Sometimes they are; sometimes they aren't. Franklin Roosevelt was better informed than William E. Borah or Burton K. Wheeler and the isolationist leaders of the 1930's. But which body made more sense about the Vietnam war 20 years ago, the National Security Council or the majority of this particular committee? Which body makes more sense about Central America and the Persian Gulf today? As the distinguished minority leader, Senator Dole, put it the other day: "I have learned over the years that occasionally there is some wisdom in Congress. It is not all vested in the White House or those who advise the President."

The War Powers Resolution of 1973 represented a high-minded and ingenious attempt to tap congressional wisdom and to reestablish the constitutional partnership as envisaged by the Founding Fathers. You are all familiar with the terms of that Resolution. I speak as one who was skeptical from the start about the efficacy of the War Powers Resolution. The Resolution, it seemed to me, began by ceding the President what he had heretofore lacked; that is, statutory authority to go to war without congressional consent. Before the passage of the Resolution, unilateral Presidential war represented Executive usurpation. Now unilateral Presidential war becomes, at least for the first 90 days, an entirely legal action.

Practically speaking the Resolution's machinery of restraint seemed to me a hoax. Most wars are popular in their first 90 days. People rally round the flag. The President who orders military action can overwhelm Congress and public opinion with his own rendition of the facts and his own interpretation of the crisis. Given the President's superior ability to define the emergency, to control the flow of information and to appeal to the Nation, it would take an unwontedly bold Congress to reject a Presidential request for the continuation of hostilities or to recall the fighting forces over Presidential opposition.

My skepticism in retrospect was not deep enough for I naively assumed that Presidents would at least go through the motions of honoring or humoring the Act and seek to turn it to their own purposes. In fact, as we all know, Presidents have simply ignored the Act except for occasional and perfunctory quasicompliance with the reporting requirements. Textual ambiguities in defining those requirements have left uncertain the point at which the 60-day clock starts ticking and thereby the hope that the Resolution would be self-activating and automatic in its operation. And the Supreme Court, when it declared the legislative veto unconstitutional in Chadha, presumably annulled the congressional power to termi