The War Power

By Paulsen, Michael Stokes | Harvard Journal of Law & Public Policy, Winter 2010 | Go to article overview

The War Power


Paulsen, Michael Stokes, Harvard Journal of Law & Public Policy


My nearly ridiculous goal for this Essay is to present a comprehensive theory of the Constitution's allocation of war powers and, then, to apply it to every significant issue of the war on terror, in twenty-five pages.

My thesis is straightforward: The allocation of war powers under the Constitution is a classic illustration of the Framers' conception of separation of powers. The Framers regarded the war power as too important to vest it in a single set of hands and so, by conscious design, chopped it up--divided it--and allocated portions of that power to various branches, giving some powers exclusively to each branch and also providing for some areas of overlap, and thus shared authority, among them.

I will make three broad points about the war power as it exists within the Constitution's structural separation of powers. First, the Constitution vests, in the main, in Congress, and not in the President, the decision to initiate war--the authority to take the nation into a state of war. (1) Second, the Constitution vests in the President, and not in Congress, the power to conduct war. (2) Each of these powers is, in the main, autonomous of the powers of the other branch and thus to a substantial degree immune from control by the other's powers.

Third, the Constitution vests no substantive war powers in the judiciary. But questions of the Constitution's allocation of war powers nonetheless can be judicial questions. This susceptibility to judicial decision making does not mean that everything that the courts will decide on such matters is right. Nor does it mean even that everything that the courts say should be followed by the other branches of government. Another aspect of the separation of powers is that the Framers regarded the power to interpret law--the power of constitutional interpretation--as another power too important to vest exclusively in any one branch of government. (3) It too--like the war power--is a divided, shared power. The political branches thus rightfully may use the constitutional powers at their disposal to resist judicial encroachments on the Constitution's assignments of war powers to them. Nonetheless, the judiciary's power to decide cases, including cases concerning the Constitution's allocation of war powers, and to seek to press its interpretations upon the other branches with the limited powers at its disposal, is also part of the separation of powers dynamic.

I. THE CONSTITUTIONAL POWER TO INITIATE WAR (JUS AD BELLUM)

Consider first the constitutional power to start war--to take the nation from a condition of peace into a state of war. That power is Congress's, not the President's. In the American constitutional order, the power to initiate war is a legislative power and not an executive power.

A. Preconstitutional Background Understandings of the War Power

Things were not always that way. Indeed, the war power traditionally was understood to be an aspect of the executive power with respect to foreign affairs. The Framers of the U.S. Constitution wrote against a background understanding that the war power was part of the foreign relations executive power of the king--a description attested to by the best legal authorities known in the eighteenth century, including Montesquieu, Blackstone, and Locke. The Framers wrote against that backdrop, but consciously departed from that familiar design by taking some of the powers traditionally vested in the English king and assigning them instead to the legislature. The most important of those re-allocations in the area of war and foreign affairs is Article I, Section 8's assignment to Congress of the power "[t]o declare War." (4)

B. The Constitution's Allocation of the War-Initiating Power: Text, Structure, and History

Congress, and not the President, thus possesses the constitutional power to declare war or not to declare war. This means that Congress, and not the President, has the constitutional power to initiate war. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • A full archive of books and articles related to this one
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The War Power
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

    Already a member? Log in now.