U.S. Constitution · Article I, Section 8, Clause 11

Declare War Clause; Marque and Reprisal Clause

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Also known as: Declare War Clause · Marque and Reprisal Clause

This clause gives Congress the power to declare war, authorize marque and reprisal, and make rules for captures on land and water.

Live in the VFA record

Cited in 4 SI Solutions and 28 grades this month.

70 public items cite this provision · 32 in October 2026 (last month: 2)

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The text

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

National Archives transcription (public domain; original spelling and capitalization). archives.gov

SI explainer

What it means

This provision gives Congress three related powers. Congress may declare war, meaning it makes the formal decision that the United States is in a state of war. Congress may grant Letters of Marque and Reprisal, meaning it may authorize private persons to act against an enemy on behalf of the United States. Congress may make rules concerning captures on land and water, meaning it sets rules for property taken during armed conflict. The power to declare war does not itself direct how a war is fought. The President commands the armed forces, while Congress decides whether to declare war and sets related legal rules. The provision has not been changed by a later amendment and remains in force as written. The Supreme Court has recognized a limit on reading this clause as requiring a declaration before any military response. In the one decision in the record on this provision, the Court upheld a presidential blockade responding to insurrection without awaiting a congressional declaration.

Original meaning

The generation that wrote and ratified the provision understood it to place the decision to enter war in the legislature while preserving executive capacity to respond to emergency. Madison wrote in his notes that Madison and Gerry moved to insert declare in place of make war, leaving to the Executive the power to repel sudden attacks, and recorded Sherman's view that the Executive should be able to repel and not to commence war. Madison wrote in the notes that Gerry objected to empowering the Executive alone to declare war, and that Ellsworth distinguished making war from making peace, saying it should be more easy to get out of war than into it. Hamilton wrote in The Federalist No. 69 that the President would have the supreme command and direction of the forces, while declaring war and raising and regulating fleets and armies would appertain to the legislature. Madison later wrote to Jefferson that the Constitution supposed the executive to be the branch most interested in war and most prone to it, and had with studied care vested the question of war in the legislature.
  • “Mr. MADISON and Mr. GERRY moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks. Mr. SHARMAN thought it stood very well. The Executive shd. be able to repel and not to commence war.” James Madison, Madison's Notes of Debates in the Federal Convention, August 17, 1787 (1787-08-17)
  • “Mr. GERRY never expected to hear in a republic a motion to empower the Executive alone to declare war. Mr. ELSWORTH . there is a material difference between the cases of making war and making peace. It shd. be more easy to get out of war, than into it.” James Madison, Madison's Notes of Debates in the Federal Convention, August 17, 1787 (1787-08-17)
  • “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, James Madison to Thomas Jefferson, April 2, 1798 (1798-04-02)
  • “In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.” Alexander Hamilton, The Federalist No. 69 (1788-03-14)

How the Supreme Court has read it

  1. The Prize Cases, 67 U.S. 635 (1863)

    The Court upheld President Lincoln's 1861 blockade of Southern ports. It held that the President could respond to an insurrection as a war without awaiting a congressional declaration of war.

Two schools of interpretation

Originalist / textualist reading

Originalists and textualists read the clause by its original public meaning: Congress holds the power to declare war and to authorize related measures such as marque and reprisal and rules for captures, while the President as commander in chief may direct forces and repel sudden attacks. They emphasize the Convention's change from make to declare war as evidence that commence-war authority belongs to Congress and defensive response belongs to the executive. On this reading, the text and its founding explanations supply the fixed standard for allocating war authority, and later practice is assessed against that standard.

Living-constitutionalist reading

Living-constitutionalists and pragmatists read the clause as setting a durable principle — legislative control over entry into war — whose application must adapt to changing forms of conflict and the need for rapid response. On this view, the distinction between declared war and other authorized or defensive uses of force has developed through practice and judicial decisions, including recognition that a President may respond to attack or insurrection without awaiting a declaration. The text remains a check on unilateral war-making, but its work is done through the broader relationship between Congress and the President rather than through a formal declaration in every instance of armed conflict.

Open questions

The main unsettled questions concern the line between declaring war, which the text assigns to Congress, and other uses of military force, including what counts as repelling a sudden attack and what authorization Congress must give for sustained hostilities absent a formal declaration.

SI-generated explainer · passed automated checks (Constitution citation, every quotation verified word for word against its public-domain source, every case from a verified case record, independent SI critic) · not individually reviewed by a person · published 2026-10-18 · methodology · Report an error: hello@valuesforamerica.com

Cited in the VFA record

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Cite this page

Values for America Constitution Explorer, https://www.valuesforamerica.com/constitution (text: National Archives transcription, public domain), Article I, Section 8, Clause 11, https://www.valuesforamerica.com/constitution/article-1/section-8/clause-11

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