Madison Understood the War Power

Former Supreme Court Justice Antonin Scalia's view on original constitutional meaning clashes with the 'living Constitution' approach.

Apr. 1, 2026 at 7:00am

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Former Supreme Court Justice Antonin Scalia argued that the original meaning of the Constitution's text, not the intent of the Framers, should guide interpretation. He rejected the 'living Constitution' view that the document's meaning evolves over time. This contrasts with the Framers' intent, as shown by James Madison, that Congress, not the executive, holds the power to authorize the use of military force, except to repel sudden attacks.

Why it matters

Scalia's originalist approach to constitutional interpretation has been influential, but is challenged by the 'living Constitution' view that the document's meaning can change over time. The debate over the war powers clause is a key example, as it goes to the heart of the balance of power between the legislative and executive branches.

The details

Scalia argued that the Constitution's original meaning, not the Framers' intent, should guide interpretation. He rejected the 'living Constitution' view that the document's meaning evolves. In contrast, the Framers, as shown by James Madison's notes, intended to give Congress the power to declare war, leaving the executive the power to repel sudden attacks. This balance of power has been a source of ongoing debate.

  • On August 17, 1787, the Constitutional Convention debated the war powers clause.
  • On April 2, 1798, Madison wrote a letter to Thomas Jefferson addressing the war power.
  • On March 2, 2026, Secretary of State Marco Rubio explained recent preemptive military strikes against Iran.

The players

Antonin Scalia

A former Supreme Court Justice who argued for interpreting the Constitution based on its original meaning, not the Framers' intent.

James Madison

A Founding Father who took notes at the Constitutional Convention, showing the Framers' intent to give Congress the power to declare war, while leaving the executive the power to repel sudden attacks.

Thomas Jefferson

The Vice President to whom Madison wrote a letter addressing the war power.

Joseph Story

A former Supreme Court Justice who wrote about Congress' power to declare war in his Commentaries on the Constitution.

Marco Rubio

The current Secretary of State who explained recent preemptive military strikes against Iran.

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What they’re saying

“I will consult the writings of some men who happened to be Framers — Hamilton's and Madison's writings in the Federalist, for example. I do so, however, not because they were Framers and therefore their intent is authoritative and must be the law; but rather because their writings, like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood.”

— Antonin Scalia, Former Supreme Court Justice

“The constitution supposes what the History of all Govts demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl.”

— James Madison

“The power to declare war may be exercised by congress, not only by authorizing general hostilities, in which case the general laws of war apply to our situation; or by partial hostilities, in which case the laws of war, so far as they actually apply to our situation, are to be observed.”

— Joseph Story, Former Supreme Court Justice

What’s next

If President Trump is considering the use of ground forces in an ongoing conflict with Iran, he should first seek congressional authorization, in line with the original understanding of the Constitution's war powers clause.

The takeaway

The debate over the original meaning of the Constitution's war powers clause versus the 'living Constitution' approach highlights the ongoing tension between the legislative and executive branches over the use of military force, an issue the Framers sought to carefully balance.