The consent of the sovereign

National Review puts the matter plainly in its lead: 'a constitutional republic and democracy cannot achieve satisfying ends in war without the consent of its true sovereign.' I would not have chosen different words had I written them myself — though I would note that the Constitution already settled the question of who that sovereign is and how its consent must be obtained.

The text is unambiguous. Article I, Section 8 vests in Congress — not the executive — the power to declare war, to raise and support armies, to make rules for the government and regulation of the land and naval forces. Article II makes the President Commander in Chief, but that office executes a war; it does not authorize one. The framers at Philadelphia divided these powers deliberately, because they had witnessed what happened when a single hand held both the sword and the decision to draw it.

The structural logic runs deeper than any single conflict. In Federalist No. 51, I argued that the great security against a gradual concentration of powers in a single branch lies in giving each branch the constitutional means and personal motive to resist encroachments by the others. War is the most consequential encroachment a government can make upon the liberty and lives of its people. If the legislature surrenders its war-making voice — through inattention, political timidity, or the seductive speed of executive action — then the balance is gone, and gone quietly, without amendment, without debate, without the people's consent.

Faction compounds the danger. I argued in Federalist No. 10 that the extended republic moderates the violence of faction by making it harder for any single interest to seize and hold all the levers of government. But war has a way of consolidating those levers. A prolonged conflict fought without a formal declaration tends to become the executive's war in practice, whatever the parchment says. The legislature, having neither voted for it nor against it, cannot be held accountable for it; the executive, having waged it, claims the glory or deflects the blame. The people — the sovereign National Review rightly invokes — are left without a clear constitutional address to which to send their verdict.

The remedy is structural, not rhetorical. I mark as inference, not recollection, anything specific about the present conflict the article references — I cannot know its theater, its scale, or its particulars. But the structural remedy is the same regardless: Congress must assert its Article I authority, not merely complain about its absence. A resolution of disapproval that lacks the force of law is a grievance, not a check. An appropriations rider that conditions funding is a check. The War Powers Resolution of 1973 — passed long after my era, as inference compels me to note — attempted to restore that balance; its adequacy is for living legislators to judge. What I can say with confidence is that no statute substitutes permanently for a Congress willing to exercise the powers the Constitution already places in its hands.

The question to carry forward is structural. Does the present arrangement — however it operates in the specific conflict the article describes — strengthen the balance between the branch that decides and the branch that acts, or does it erode it further? A republic that consistently wages war without a deliberate legislative voice will eventually find that it has exchanged republican government for something older and less forgiving. The framers knew that tendency well. They designed against it. The design holds only as long as the branches choose to honor it.