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Tuesday, January 22, 2008

Scholarship on the "Declare War" Power

In the hopes of expanding my teaching range in constitutional law this semester, I spent some time this weekend reading three very interesting articles in the November 2007 volume of the Cornell Law Review, in which the authors debate the constitutional power to declare war. I found the articles an illuminating and valuable read, and not only for the substantive issues being debated. More after the jump.

Professor Saikrishna Prakash begins the exchange with Unleashing the Dogs of War: What the Constitution Means by “Declare War,” 93 Cornell L. Rev. 45. A cool title, and I figured any academic debate that begins by bringing Christopher Walken and werewolf flicks to mind had to be worth a look.

Professor Prakash frames the debate around a “categorical theory,” under which the declare war power includes “the power to control all decisions to enter war,” a “pragmatic theory,” under which the declare war power is obviated when another nation has waged war on the United States, and a “formalist theory,” under which the declare war power constitutes only a formal documentation of executive war-making decisions. Analyzing constitutional text and a tremendous range of 18th century historical materials, Professor Prakash concludes that the declare war clause in Article I captures the categorical theory. Therefore, except in actual defense to an attack, only Congress may decide whether the country will wage war, even against a nation that has declared war against the United States.

In Making War, 93 Cornell L. Rev. 123, Professors Robert Delahunty and John Yoo contend that Professor Prakash understates the full range and import of relevant constitutional text in analyzing the meaning of the declare war clause, and that Professor Prakash utilizes an under-sophisticated approach to analyzing his historical data. Professors Delahunty and Yoo conclude from their own review of constitutional text and history that the declare war clause was not meant to regulate relations between Congress and the President in war-making decisions. Rather, it was designed only to “regulate the relations between the United States and other states.”

In the third piece, The President’s Power to Respond to Attacks, 93 Cornell L. Rev. 169, Professor Michael Ramsey largely agrees with Professor Prakash, but parts company on Professor Prakash’s position that the Constitution leaves in Congress the power to decide whether a counter-attack should be launched in response to another nation’s aggression. Professor Ramsey concludes that because the other nation’s aggression already would have placed the country at war, the Constitution would not view a responsive counter-attack itself as a declaration of war beyond the President’s own war powers.

Interesting stuff, and very helpful to someone like me relatively new to teaching constitutional law. Indeed, beyond the substantive insight and rich authority these pieces offer on the declare war clause and related provisions of the Constitution, these articles provide a valuable example of how a single school of constitutional interpretative methodology still may yield different results. Each article approaches its task with an “originalist” methodology, emphasizing constitutional text and contemporary historical understanding of that text. And yet, all three articles produce distinct conclusions on constitutional meaning.

Perhaps the editors at the Cornell Law Review had these divergent originalist outcomes in mind when they placed the lead article in volume 93, Guthrie, Rachlinski & Wistrich, Blinking on the Bench: How Judges Decide Cases, 93 Cornall L. Rev. 1. This empirical study of judicial decision-making finds that while judges endeavor to decide cases on facts, evidence and "highly constrained legal criteria," in reality judges rely more on an intuitive system of judgment than a deliberative system. Maybe originalist academics too?

Posted by Brooks Holland on January 22, 2008 at 05:55 PM in Constitutional thoughts | Permalink

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