began attacking American vessels, which were no longer under British protec-
tion.
142
Three months into Jefferson’s presidency, the President ordered a small
naval squadron to defend American commerce in the Mediterranean.
143
The expe-
dition’s initial instruction was to only use defensive force.
144
But then President
Jefferson ordered the expedition to respond to aggression “by sinking, burning
or destroying their ships & Vessels wherever you shall find them” if one of the
Barbary states declared war first.
145
The order was prescient because Tripoli
soon declared war against the United States on May 14, 1801.
146
An instructive debate ensued among Jefferson’s cabinet when the President
learned about Tripoli’s declaration of war. In the President’s first annual message
to Congress on December 8, 1801, Jefferson stated that he was “unauthorised by
the [C]onstitution, without the sanction of Congress, to go beyond the line of
defence.”
147
This view is consistent with Jefferson’s positions during the
Proclamation of Neutrality and Quasi-War when the future President favored lim-
ited executive power.
148
However, this was at odds with his cabinet’s consensus,
that the President did not need any statutory authority to fight in a war initiated by
another state.
149
In fact, University of Virginia Law Professor Robert Turner sur-
mises that Jefferson intentionally misrepresented the Declare War Clause as a po-
litical maneuver to accelerate Congressional action.
150
In his notes from a May 15, 1801, cabinet meeting, Jefferson recorded that, “if
war exists,” can the squadron constitutionally “search for [and] destroy the
enemy’s vessels wherever they can find them?—all except L[incoln]—agree
they should; M[adison], G[allatin], [and] S[mith] think they may pursue into
the harbours, but M[adison] that they may not enter but in pursuit.”
151
Jefferson’s
Treasury Secretary, Albert Gallatin, took the position that the President has equal
power to direct military forces, whether Congress declares war on another state or
another state declares war on the United States.
152
142. Id.
143. B
URNS, supra note 2 at 96.
144. B
URNS, supra note 2 at 95.
145. Robert F. Turner, War and the Forgotten Executive Power Clause of the Constitution: A Review
Essay of John Hart Ely’s War and Responsibility, 34 V
A. J. INT’L. L. 903, 911 (1994) (emphasis
omitted).
146. B
URNS, supra note 2 at 95.
147. Thomas Jefferson, First Annual Message to Congress, in 36 T
HE PAPERS OF THOMAS JEFFERSON
58, 59 (Barbara B. Oberg. ed., 2009).
148. See supra notes 73, 100.
149. Robert F. Turner, State Responsibility and the War on Terror: The Legacy of Thomas Jefferson
and the Barbary Pirates, 4 C
HI. J. INT’L. L. 121, 130 (2003).
150. Turner, supra note 145, at 912.
151. Thomas Jefferson, Notes on a Cabinet Meeting, in 34 T
HE PAPERS OF THOMAS JEFFERSON 114,
115 (Barbara B. Oberg. ed., 2007) [hereinafter 34 J
EFFERSON]; see also Turner, supra note 145, at 911
(naming the cabinet members based on the initials in Jefferson’s notes).
152. Thomas Jefferson, Notes on a Cabinet Meeting, in 34 J
EFFERSON, supra note 151, at 114–15.
2023] THE FOUNDERS’ DECLARATION OF WAR 301