The Power to Declare War

January 6, 1938

Report Outline
Ludlow Resolution and the Panay Incident
The War-Making Power and the Constitution
Pending Proposals for Popular Vote on War
Opposition to Projected War Referendum
Special Focus

Ludlow Resolution and the Panay Incident

When the American gunboat Panay was sunk in the Yangtze River, December 12, placing a severe strain on American-Japanese relations, the discharge petition filed by Rep. Ludlow (D., Ind.) to bring before the House of Representatives his resolution proposing a constitutional amendment providing for a popular referendum on declarations of war, bore 205 signatures. Within two days the 13 additional signatures needed to complete the petition had been attached. As a result, the House will take up on Monday, January 10, Ludlow's motion to force the resolution from committee. If that motion prevails, the resolution will be immediately debated and will remain before the House until it is adopted or rejected.

Completion of the discharge petition came as a surprise to administration leaders in the House, who had made no effort to prevent such a consummation. President Roosevelt, Secretary, of State Hull, and other administration spokesmen subsequently indicated their disapproval of the Ludlow proposal. While there is believed to be little prospect that the resolution will obtain the two-thirds vote required for adoption, it has attracted wide popular attention.

War Referendum Plan as Curb on Executive Power

Under the Constitution the power to declare war resides solely in Congress. It has been pointed out, however, that the President in effect shares the war-making power, since a situation leading inevitably to war may evolve from Ms conduct of foreign relations. Some persons even assert that the power to declare war rests in fact, if not in theory, almost entirely in the President, Congress being called upon only to ratify a decision already taken by the executive in the making of which it had, and could have, no part. It is because they believe that the present constitutional provision acts as no more than a slight restraint upon the course of executive action in such situations that advocates of the Ludlow resolution contend that the people should be given the right to make their own decision on whether or not this country shall enter a foreign war. President Roosevelt's failure in the Far Eastern crisis to follow the neutrality policy laid down by Congress is cited as an instance of the manner in which the will of the legislative branch can be subordinated to that of the executive branch of the government in matters vital to the issue of war or peace, and hence of the desirability of providing an additional check upon executive action.

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U.S. Constitution