The U.S. Constitution and the Power to Go to War: Historical and Current Perspectives

By Gary M. Stern; Morton H. Halperin | Go to book overview

Introduction

Gary M. Stern and Morton H. Halperin

This book examines the "war powers" of the President and Congress in light of the end of the Cold War. After 45 years, the principal motivator of U.S. foreign policy abruptly disappeared. But the dissolution of the Soviet Union did not mean that the United States would no longer be fighting wars; indeed, just as the U.S.S.R. was taking its final gasps, the United States amassed and engaged the largest military force since World War II when it attacked Saddam Hussein's Iraq. Nor did the end of the superpower rivalry give the United States a green light to initiate wars without any fear of international recrimination; rather, the United Nations has begun to emerge as a control on international military action. These factors thus compel a new look at a very old subject.

The drafters of the Constitution understood the critical importance of the decision to go to war. They recognized that war and the government's fear of foreign enemies posed a threat to individual liberty here at home. They also believed that in a democratic nation, the decision to go to war should be preceded by public debate and should only be made if there was a consensus in support of the use of force. At the same time, they recognized that the President had to be able to act decisively in genuine emergencies.

The War Clause represents their effort to incorporate these goals into the governmental structure. It hinges the decision to go to war on the cooperation of both political branches, which must act on the public record, yet allows the President to respond militarily to immediate threats to the nation and grants him or her full command authority. In this way it sought to cure the defects experienced under both the British monarchy and the Continental Congress.

During the Cold War, the government assumed that these principles could no longer be applied in the face of a potentially overwhelming adversary "whose avowed objective is world domination by whatever means and at whatever cost."1 On this rather newfound rationale, Presidents took the nation into armed combat with no intention of seeking prior congressional approval; they also used the

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The U.S. Constitution and the Power to Go to War: Historical and Current Perspectives
Table of contents

Table of contents

  • Recent Titles in Contributions in Military Studies ii
  • Title Page iii
  • Contents v
  • Acknowledgments vii
  • Introduction 1
  • Notes 8
  • 1: Historical Survey of the War Powers and the Use of Force 11
  • Notes 26
  • 2: Constitutional Constraints: The War Clause 29
  • Notes 46
  • 3: Statutory Constraints: The War Powers Resolution 55
  • 4: Treaty Constraints: The United Nations Charter and War Powers 83
  • Notes 98
  • 5: International Law Constraints 107
  • Notes 118
  • 6: Judicial Constraints: The Courts and War Powers 121
  • Notes 128
  • 7: Constraints on "Covert" Paramilitary Action 133
  • Notes 147
  • 8: "Covert" Paramilitary Action and War Powers 149
  • Notes 157
  • 9: Emergency War Powers 159
  • Notes 166
  • 10: Common Ground 167
  • Notes 176
  • Appendix 179
  • Selected Bibliography 181
  • Index 191
  • About the Editors and Contributors 197
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