Document Type

Article

Publication Date

1997

Abstract

Almost without discussion, and essentially without opposition, the Framers and Ratifiers of the United States Constitution vested in Congress the "Power ... To declare War, [and] grant Letters of Marque and Reprisal." During the past fifty years, one of the fiercest controversies in constitutional law has concerned what the Founders meant by this grant. It is a debate that has had, and that continues to have, dramatic importance. When Presidents committed troops or prepared to commit troops in Korea, Vietnam, Grenada, Panama, Iraq, Somalia, Haiti, and, most recently, Bosnia, they claimed that the Constitution did not require them to seek explicit congressional approval for their actions. In each instance, critics proclaimed the Presidents' actions unconstitutional. When Congress sought to control presidential war making by passing the War Powers Act of 1973, defenders of the statute declared that it simply tracked the War Powers Clause. Presidents, however, have repeatedly claimed that the statute violates the Constitution, because they believe the War Powers Clause grants Congress only limited powers. The same question has been at issue on each occasion: Does the Constitution give Congress alone the power to initiate conflict?

The roster of scholars engaged in the controversy over the original understanding of the war making power reads like a who's who of constitutional scholars and scholars of foreign affairs. On one side of the debate-the pro-Congress side-are such academics as Raoul Berger, Alexander Bickel, John Hart Ely, a Louis Fisher, Harold Koh, Leonard Levy, Charles Lofgren, Arthur Schlesinger, Jr., and William Van Alstyne. They have argued that the original understanding was that, except for a limited power to repel sudden attacks, the President could not commit troops to combat without congressional authorization. They believe that modern constitutional law should reflect that understanding. In contrast, other scholars have adopted a pro-Executive stance. These include Phillip Bobbitt, Robert Bork, Edward Corwin, Henry Monaghan, Eugene Rostow, Robert Turner, W. Michael Reisman, and John Yoo, among others. The pro-Executive scholars have argued either that the power to declare war was intended to be a very limited, power-conferring on Congress the power to classify a conflict as a war for purposes of international law (rather than conferring on it the exclusive power to initiate conflict)--or that, for reasons unique to the War Powers Clause, original understanding is irrelevant to resolution of modern controversies.

Publication Citation

82 Cornell L. Rev. 695-772 (1997)