Commander in Chief Clause: Its Modest Origins Under a Microscope
June 18, 2025
The confluence of the 250th anniversary of the creation of the U.S. Army, President Donald Trump’s deployment of the California National Guard and the U.S. Marines to Los Angeles, and the possibility that he might plunge our nation headlong into the war between Israel and Iran, without the constitutionally required congressional authorization, compel a reconsideration of the Commander in Chief Clause, as conceived by the Framers, particularly when, in the words of Justice Robert H. Jackson, the provision has been invoked for the “power to do anything, anywhere, that can be done, with an army or navy.”
On June 15, 1775, the Continental Congress unanimously chose George Washington as “general” of the army that it had created. His commission, approved on June 17, appointed him “General and Commander in Chief of the army of the United Colonies.” The instructions of the Congress drafted by John Adams, Richard Henry Lee, and Edward Rutledge kept Washington on a short leash. He was ordered “punctually to observe and follow such orders and directions, from time to time, as you shall receive from this, or a future Congress of these United Colonies, or Committee of Congress.”
Congress did not hesitate to instruct the commander in chief on military and policy matters, large and small. On June 20, Congress ordered General Washington to repair to Massachusetts Bay and take command of the army of the United Colonies. On October 5, the commander in chief was ordered to intercept two British vessels. On November 10, he was directed to send a force into Nova Scotia. On June 17, 1776, he was directed to send General Gates to command in Canada. Numerous orders followed, and Washington duly complied with them.
In its historical usage, harkening to its creation in English law by King Charles I in 1639, the title of commander in chief had been a generic term referring to the highest officer in a particular chain of command. Thus, it was applied to officers in various theaters of battle. The practice of entitling the office at the apex of the military hierarchy as commander in chief and of subordinating the office to a political superior, whether a king, parliament, or congress, was thus firmly established for a century and a half and thoroughly familiar to the Framers when they met in Philadelphia. This settled understanding and the consequent absence of concerns about the nature of the post accounts for the fact that there was no debate on the commander in chief clause at the Constitutional Convention. Generals and Admirals, even when they are first, do not determine the political purposes for which troops are to be used. They command them in the execution of the policy made by others, which, obviously, was the intention of the Framers.
At the time of the Convention, the office of commander in chief had never carried the power of war and peace. The Framers did not alter this historical understanding. The War Clause of the Constitution (Article I, Section 8) provides: “Congress shall have power To declare War” and “grant Letters of Marque and Reprisal.” This clause, as Alexander Hamilton, James Madison, and others—without challenge or opposition—explained, grants to Congress alone the exclusive authority to move the United States from a state of peace to state of war, and to authorize military hostilities short of war. The rationale for vesting the War Power in Congress, rather than the president, was drawn from historical lessons that taught the danger of entrusting control of the military establishment to a single man who could commit the nation to war. James Wilson, widely viewed as the most learned and profound legal scholar of his generation, and second only to Madison as an architect of the Constitution, told the Pennsylvania Ratifying Convention that the power to declare war had been vested in Congress as a guard against being “hurried” into war so that no “single man can involve us in such distress.” It was for that reason that Congress, not the president, is the repository of the lion’s share of constitutionally authorized foreign and national security powers. The severely limited role of the president was a studied response to what Madison called an axiom: the executive is distinguished by its propensity to use military force. The current climate should be considered in light of the climate that influenced the Framers.
-David Adler