We receive many interesting questions through the Law Library’s Ask A Librarian service, and if a patron gives us permission, we are occasionally able to share some of the highlights with you. A patron recently reported that a popular internet site claimed a Joint Resolution had been introduced in the 64th Congress that would have required a referendum to be held prior to a declaration of war. The question is an intriguing one and the patron was kind enough to allow me to write a blog post about it.
Article I, Section 8 of the United States Constitution commits the power to declare war to Congress, while Article II, Section 2 states that the President is Commander in Chief. In establishing our Constitutional system of checks and balances, the Founders anticipated that the three branches of government would guard their respective powers from encroachment by the other branches (Federalist 51). The legislative and executive branches have indeed competed for power over the conduct of foreign relations and war, and there have been instances where the legislative branch has sought to reign in the executive through measures such as the War Powers Resolution, which passed over the veto of President Nixon. Still, until I received this question, I had never before heard of an attempt to limit the conduct of foreign relations and war by requiring a referendum on a declaration of war.
I turned to the Congressional Record for the 64th Congress and quickly found there was not just one, but multiple pieces of legislation introduced to require such a referendum, including a Joint Resolution that proposed amending Article I. Many references to this legislation could be found under headings in the index to the Congressional Record, such as, “War and Preparation for War” and “Declaration of War.” I was surprised to find that some pieces of the legislation even included a sample ballot. Since the Constitution commits the power to issue a declaration of war to Congress, it seems that only if one of the two proposed amendments were ratified would Congress have been required to heed the referendum. The rest of the legislation treats the referendum as advisory, recognizing that the power to declare war would remain with Congress.
The proposed resolutions largely shared the same general structure, but there were differences as to how the referendum would be implemented. Many resolutions would have required one percent of eligible voters to first petition for a referendum to be held, and many would have allowed an invasion or insurrection to be repelled without the need for a vote. Additionally, some legislation explicitly allowed action against an imminent or threatened invasion without the need for a vote. Where procedure is mentioned, most would have required approval by a simple majority of Congressional Districts for the referendum to pass, and the Census Bureau would have been responsible for tabulating the votes.
If you are interested in viewing the legislation introduced on referendums on declarations of war in the 64th Congress, the pertinent bills and resolutions are: S.5796, S.J. Res. 10, H.J. Res. 128, H.R. 15385, H.R. 20998, H.R. 21002, H.R. 21032, H.J. Res 371, H. Res. 492, H. Res. 495, H. Res. 497, H. Res. 498, H. Res. 507.
The referendum did not pass in the 64th Congress, but the idea was an enduring one, finding prominent champions in Senator Robert La Follette, Sr. and William Jennings Bryan. Support for such a referendum even found its way into the 1924 Democratic Party platform, and interest in the referendum was also revived in the run up to World War II.
Have you come across a reference to unusual legislation that you are curious about? Contact the Law Library of Congress through our Ask A Librarian Service.
 Patch, B.W. (1938). The power to declare war. Editorial Research Reports 1938 (Vol. I). Washington, DC: CQ Press. Retrieved from http://library.cqpress.com/cqresearcher/cqresrre1938010600.