add, will be inserted in the record as written, and the same applies to Mr. Schlesinger.

STATEMENT OF DR. FORREST MC DONALD, DISTINGUISHED RESEARCH PROFESSOR OF HISTORY, UNIVERSITY OF ALABAMA, TUSCALOOSA, AL

Dr. McDONALD. I did not prepare a written statement except something else that is in the record.

Professor Schlesinger as always is a hard act to follow. But I think that at least I can demonstrate that there is sometimes as much disagreement among historians as there is among Senators.

the War Powers Resolution has generated a huge body of historical literature, some of it very good, some of it not so good. But the most striking thing about it, as I have reviewed it in these last few weeks-and I've read most of it-is curiously the lack of historical perspective. I think the same observation applies to what Professor Schlesinger just said. Let me supply two aspects of the historical background of the whole question of the power of the Executive in matters of foreign affairs.

First off, the British background. History had shown for 500, 600 years prior to the meeting of the Constitutional Convention, that the executive power and the legislative power are inherently antagonistic, inherently adversarial. They cannot be cooperative. They cannot be shared. From Magna Carta in the early 13th century until the glorious revolution of 1688-89, England was in turmoil continuously because of the adversarial relationship between the crown and the parliament. It went on and on and on. There were civil wars. There were dynastic wars. There were regicides. There was perpetual turbulence.

The British hit upon an ingenious solution to the problem, and it's the only solution to the problem that I can see. In the wake of the glorious revolution they merged the various branches of government. Government in England after 1689 was not by Crown and parliament; it was by Crown in parliament, conceived of as the Crown, the Lords spiritual and temporal, and the Commons. And they had the power.

During the course of the 18th century, the British refined this solution by making what they called the government, what we would call the administration, a branch of the legislative. The ministry has to be members of parliament and responsible to parliament.

Now, in the colonies and in the United States of America, for various reasons, just as the British were resolving this age-old problem, we opted for an institutionalized opposite answer to it, going back to the original thing. Partly this arose from colonial experience, the fact that the colonial Governors, all except those in Rhode Island and Connecticut, were appointed from London, and were regarded by the people living in America as agents of some sort of foreign power. The legislatures were elected by the people locally, and the adversarial relationship became habit. It was second nature. It had more than a century of history by the time of the American Revolution.

In addition to that, there was the matter of what has been called the country party ideology in Great Britain and adopted in the United States, which held that the ministerial system and this government by crown in parliament was a perversion of the ancient constitution, and that only by restoring the ancient constitution with its real or imagined separation of powers could there be true liberty. The Americans were convinced that corruption and tyranny had taken over in England. This was the nature of things as of 1776.

In 1776 when independence was declared, we tried to make do without any executive authority. The Governors of the States had no powers for the most part, and there was no executive arm of the Continental Congress. By 1787 most thinking Americans had come to believe that you cannot have a reasonable government without Executive power. Most of them were committed to the Montesquieuan principle that the executive power has to be independent of the legislative power, and they were ready to do something about it.

Nonetheless, the tradition of fearing executive authority was so strong that in the Constitutional Convention of 1787, fully onequarter, possibly as many as 40 percent, of the delegates wanted to opt for a multiple, a plural, executive. A majority prevailed in favor of a single executive probably for one reason and one reason alone: George Washington was there. And every American knew that George Washington could be trusted. Only because George Washington existed, only because George Washington could be trusted, were they willing to create a separate Executive at all.

But another part of this historical context is the microhistorical context, not macro, and that is this. During the course of the Constitutional Convention, a very serious problem plagued the delegates and that was how are you going to choose the President. For the most part, the attitude was that the Congress has got to elect the President, but if the Congress elects the President, if he is reelectable, then he is just a toady of the Congress. He's a creature of the Congress. If he is not reelectable, you have to make his term long enough so that it would be dangerous. What are you going to do?

Various means were suggested. We think automatically of a popular election. But if you consider transportation and communication at the time, it was not practicable. So, throughout the convention, they kept trying various other means, but kept coming back to election by Congress. Now, this is going to be congressional government.

The people on the Committee of Detail, which framed really the first draft of the Constitution and presented it to the convention on August 6, 1787, were so unhappy with this method of electing the President, that they didn't want to give the President any powers. If you look at the Committee of Detail draft reported on August 6, you will see that the power to appoint judges, the power to appoint foreign ministers, the power to negotiate and settle treaties, make treaties, was exclusively lodged in the Senate of the United States, nothing in the President.

But then on September 4-or was it the September 6-early in September, a catchall committee of all the States, headed by a dele

gate from New Jersey named David Brearley, reported a cockamamie scheme for choosing the President and that was essentially the electoral college as we know it. I say a cockamamie scheme. When it was presented, everybody said this is a cockamamie scheme. But as they discussed it for the next couple of days, they realized that this took care of all the objections that had been raised to every other means of electing the President. We could, in other words, have a separate President, and it would be safe.

In the very course of the Resolutions which presented this cockamamie scheme, several powers that had previously been lodged in the Senate were suddenly shuffled back over into the President or to be shared with the President. And in the course of the next few days-remember the convention was almost over for practical purposes, and everybody is in a hurry to get home. During the course of that next few days, bang, as quickly as they could, they shuffled powers over to the Presidency, leaving a foot in the senatorial camp in some powers, leaving a foot in Congress as a whole for some powers, but essentially making the President as independent as they could in the circumstances.

Certain powers that had always been regarded in England as royal powers, royal prerogative, such as the coining of money or the creation of courts or various things, were clearly left to Congress. But when we got to the all-important or the very crucial power of the conduct of foreign relations, well, the fact of the matter is that the Framers, for all their care and all their wisdom, were fairly slipshod craftsmen. They were in a hurry to go home, the result being article 2 of the Constitution, which says the executive powers shall be vested in the President, and the Commander in Chief power, and faithfully execute the laws power, but otherwise leaving some of the traditionally executive powers in the hands of the legislators.

Now, the point of all this is that the normal rules for construing constitutionality can't apply. That is to say, normally you look to the Constitution first. What does it say? Well, the Constitution is ambiguous. It can be interpreted in any of several ways. No. 2, if the law or the Constitution is ambiguous, you go to the legislative history. The legislative history is ambiguous, the point being that once that happens, you have got to go to what has been practiced. Now, practice over the centuries began with George Washington. Washington in 1789 had decided that he was going to try to have a cooperative relationship with the Senate. Remember Rhode Island had not yet ratified, so there were only 24 Senators at this point. This is September 1789.

One day, one Friday, Washington sent a note over to the Senate saying that he and Secretary of War, Henry Knox, were going to come over and advise and consent with the Senate about some Indian treaties. They went in on Saturday morning. There were carriages outside making all kinds of noise. Nobody could hear. It was a hot day. The various propositions were advanced to the Senators, and Vice President John Adams said, "Well, do you advise and consent to proposition No. 1." The Senate considered itself a deliberative body. That's what it is good at. And because it was good at that, it wanted to deliberate. The President wanted advice. He got mad. His face grew as red his hair, and he said, "Well, I'll

come back on Monday." He came back on Monday, and the same kind of thing happened. And he vowed he would never attend the Senate again. It simply was not practical.

After that, all strong Presidents and most Presidents across the board tended to follow Washington's lead, which was to seek advice afterward, at the same time they were seeking consent. Informal advice as you go along from Senators you trust or Senators whose judgment you respect and so on Washington did seek, but otherwise not. And virtually all Presidents followed his example.

Now, President Jefferson is really the most intriguing of the precedent setters because in a lot of ways he thought that Washington's example was monarchical and it needed to be more democratized or at least republicanized. Indeed, in 1787 when he first saw the Constitution, he didn't like the idea of the Executive because he said it was too powerful and responsible to virtually no one, a bad edition of a Polish king. That's 1787.

In 1810, after 8 years in the Presidency, he wrote the following. A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law would be to lose the law itself with life, liberty, property and all those who are enjoying them with us, thus absurdly sacrificing the end to the means.

Do you have to go, Senator Pell? Was that a vote call?
The CHAIRMAN. I'm all right. Thank you.

Dr. McDONALD. I don't know how much time I have left, but just in very brief compass, these are the precedent-setters, Washington and Jefferson.

Now, all the way through-Senator Pressler mentioned-this committee knows. It gathered the figures. There were over 200 armed deployments of American troops abroad during the 180 years prior to the adoption of the War Powers Resolution, sometimes with congressional authorization, sometimes not; sometimes picayune affairs, sometimes not. Presidents Madison and Monroe sent the Navy to the Caribbean for 6 years running without congressional authorization. President Pierce, in 1854 I guess it was, got a word that a bunch of rioters in a little town in Nicaragua called Greytown had stoned the American consulate there. He sent the Navy down. He leveled the town. Admiral Perry was sent to invade Japan. No declaration of war, no congressional authorization, no nothing. He stayed there for a couple of years, had 2,000 men under arms out of a total armed force at that time of about 50,000. In 1900 I suppose it was, President McKinley sent 5,000 troops to aid in the suppression of the Boxer Rebellion. And 1901 to 1904, President Teddy Roosevelt sent 136,000 people to the Philippines to crush an insurrection, and so on. This is not something new. This is not something invented by President Harry S Truman. Now, when you have this long record of unbroken precedent, that becomes a part of the Constitution.

I will close by quoting Justice Felix Frankfurter, a Justice whom the more I study him, the more I admire him. Here's Justice Frankfurter.

A systematic, unbroken executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also

sworn to uphold the Constitution making, as it were, such exercise of power part of the structure of our Government may be treated as a gloss upon Executive power vested in the President by section 1 of article 2.

Thank you.

[The article by Dr. McDonald appears in the appendix.]

The CHAIRMAN. Thank you very much indeed, Dr. McDonald. As you gather, we are going into this subject with a good deal of thoroughness and trying to get the historical perspective that you gentlemen give us, and really trying to make up our minds whether we should leave things as they are, whether we ought to knock out the present War Powers Resolution, whether we ought to move ahead with the Byrd-Nunn-Warner resolution. And we have a very open mind. I think the whole subcommittee has an open mind in this. But to just digest, I would be very interested in being sure I understand correctly what the views of each one of you are.

You, Mr. Schlesinger, as I understand it, if you were in our shoes here, would leave things as they are and leave it to the political process to decide. Is that correct?

Mr. SCHLESINGER. Well, I think that the present War Powers Resolution is a failure. I think that any war powers bill which relies upon good-faith cooperation by the President is doomed to failure because Presidents have their own reasons, their own interests, their own illusions. I think that a war powers bill, to be effective, must contain means of compelling Presidents to act. The best means of doing that would be through the appropriations power. And it is conceivable that you might have a War Powers Resolution hinged on the magnitude and duration of military commitment and governed by the automatic denial of funds in certain circumstances. That seems to me the one valuable suggestion of the Senate Joint Resolution 323 amendments.

But I wonder whether the whole problem of having a War Powers Resolution does not in itself distract attention from the main issue-because Congress is going to spend time arguing about the applicability of the Resolution instead of arguing about the wisdom of the policy. I might say parenthetically that I have no doubt about the constitutionality of the Resolution. So much of the argument about the Persian Gulf has been unprofitably devoted to the question of whether or not the War Powers Resolution applies, when it should be triggered and so on when what we ought to be thinking about is whether the policy itself makes any sense. So, I'm not sure that having a War Powers Resolution has improved our capacity to control Presidents in their warmaking aspirations or to bring about a sounder foreign policy.

The CHAIRMAN. I would ask the timekeeper to bring in the 10minute rule, and I've used up 3 of my minutes already.

Then, in essence, you would not repeal the present one, or you would?

Mr. SCHLESINGER. I don't think it does much good. I opposed it, as you may remember, when it first was proposed. Nothing has happened in the 15 years we have had it that has persuaded me that it adds very much.

The CHAIRMAN. Dr. McDonald, what would you do? Would you repeal it? Would you leave it as is? Would you follow the proposal of Senator Byrd and company or bring in a fourth alternative?