Wednesday, September 19, 2007

Delahunty and Yoo on Making War

Robert J. Delahunty, University of St. Thomas, and John C. Yoo, U.C. Berkeley, have posted a new essay, Making War. It is a comment on Saikrishna Prakash, "Unleashing the Dogs of War: What the Constitution Means by 'Declare War.'" Both pieces are forthcoming in the Cornell Law Review.

As an aside: An interesting feature of the essay is that it draws upon "small wars" in early U.S. history in support of an argument that the power to declare war has not been solely lodged in Congress since the founding. Attention to "small wars" can also serve a different purpose. It helps us to see that the lines between "wartime" and "peacetime" are blurry, making an assumption that wartime is an exceptional time, and war powers necessarily temporary, problematic. If war, and war powers, are more ubiquitous than we might have thought, perhaps that cuts in favor of more vigilant attention to the way wars and war powers can undercut democratic government.

Here's the Delahunty and Yoo abstract:
Presidents have long initiated military conflict without specific congressional authorization. For large wars, this practice extends at least as far as the Korean War, if not further, and for smaller conflicts, the practice can be traced to the very first administrations. During the Vietnam War, academic critics turned to the original intent of the Constitution's Framers to argue that this form of war-making was illegal. This view became the governing consensus through the 1970s and 1980s, and reached its culmination in books by John Hart Ely, Louis Fisher, Michael Glennon, and Harold Koh, among others. Simply put, they conclude that Congress's power to “declare war” gives it the full and plenary authority to decide whether to initiate military hostilities abroad, except in cases of self-defense.
Originalists have quarreled about war powers ever since. We have argued that the original understanding does not prove that modern practice is illegal. If anything, the best reading of the text finds significant support for presidential initiative in war. Unleashing the Dogs of War represents the latest step in the originalist discourse. Professor Prakash maintains that we can infer the Constitution's allocation of war powers through a broad survey of the eighteenth-century use of the phrase “declare war.” This approach, he claims, yields more support for the conventional wisdom than originalists have commonly thought. Prakash has made an important contribution by bringing more historical sources to bear on the question of the original understanding of war powers.
In this Comment, we carry the dialogue further. First, we argue that Prakash's interpretive approach imposes an unexplained burden of proof that places little to no importance on the starting point for constitutional interpretation: the text. The best reading of the text rejects Prakash's claim about Congress's power to declare war. We supplement our textualist reading by exploring constitutional structure, which should not tolerate the redundancies created by Prakash's approach. The key point here is that the constitutional structure already gives Congress more than enough constitutional authority through the creation and funding of the military, a power that was all the greater in the eighteenth century when the United States had no standing army or navy. Second, we address Prakash's use of the historical sources and argue, in short, that he has thrown his net too wide. Accumulating statements where some diplomats and government officials used the phrase “declare war” in a broad sense ignores the use of the phrase in a constitutional setting. Examination of the important antecedents to the Constitution, developments in eighteenth-century American constitutional thought, and the broader intellectual understanding of war and international law during the ratification period shows that “declare war” does not bear the meaning that Prakash claims. We close with a more complex account of early war-making under the Washington and Jefferson administrations, an account that yields different lessons from those that Prakash has elicited. We think that, when analysis is applied to evidence, the historical data weigh against the modern approach to war powers.