48 Chi.-Kent L. Rev. 131 (1971)
Congress, The President and the Power to Wage War

handle is hein.journals/chknt48 and id is 137 raw text is: CHICAGO-KENT
LAW REVIEW

VOLUME 48                        Fall-Winter, 1971                     NUMBER 2
CONGRESS, THE PRESIDENT AND THE POWER TO WAGE WAR
ALEXANDER M. BICKEL*
W    HEN the Constitutional Convention was debating allocation of the
war power within the federal government George Mason of Vir-
ginia said that he was against giving the power of war to the Execu-
tive, because not safely to be trusted with it; or to the Senate, because
not so constructed as to be entitled to it. He was for clogging rather
than facilitating war; but for facilitating peace. Oliver Ellsworth of
Connecticut, later the third Chief Justice of the United States, expressed
the same thought. It should be more easy to get out of war, said Ells-
worth, than into it.'
We have managed, over the years, to reverse the proper order of
things. We have managed to clog peace and facilitate war.
The Founding Fathers were no visionaries. They did not believe
that in terms of formulating and executing the policy of a great nation,
it is in fact easier to make peace than to make war. It is in fact, as Ells-
worth was careful to say, harder to make peace and simpler to make
war. But the Framers of the Constitution intended that our nation's
institutions and processes should be so arranged as to make it harder to
* Chancellor Kent Professor of Law and Legal History, Yale Law School. B. S., 1947,
City College of New York; LL.B, 1949, Harvard Law School; M. A. (Hon.), 1960, Yale
University; Treasurer, Case Editor, Harvard Law Review. Admitted to the Massachusetts'
Bar in 1950. Law Clerk, Judge Calvert Magruder, 1949-50; Law Officer, Department of
State, Frankfurt, Germany and Member, E.D.C. Observer Delegation, Paris, 1950-52; Special
Assistant to the Director, Policy Planning Staff, State Department, 1953-54; Research
Associate, Harvard, 1954-56; Associate Professor, Yale University, 1956-60; Professor, 1960.
Some of Professor Bickel's publications include: The Unpublished Opinions of Mr. Jus-
tice Brandeis-The Supreme Court at Work, 1957; The Least Dangerous Branch-The Su-
preme Court at the Bar of Politics, 1962; Politics and the Warren Court, 1965; The
Supreme Court and the Idea of Progress, 1970.
This article was presented by Professor Bickel to a convocation of students at Chicago-
Kent College of Law on October 29, 1971.
1 See Madison, Notes of the Debates in the Federal Convention of 1787, at 475-76
(Ohio Univ. Press ed. 1966).

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