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

NOTES
1.
From the introductory pages in The Constitution of the United States ( Bicentennial Commission).
2.
See generally the debate between Alexander Hamilton (Pacificus) and James Madison (Helvidius) concerning the war powers and separation of powers in foreign relations generally, cited in Abraham D. Sofaer, War, Foreign Affairs, and Constitutional Power: The Origins112-14 ( 1976).
3.
In 1991 I testified that "[t]he War Powers Resolution is, at least in major part, unconstitutional, and if we take the rule of law seriously, as we should, the Resolution should be repealed. Its continued invocation after the Chadha decision demeans the Congress." Hearings on the War Powers of Congress and the President in the Gulf Crisis before the Senate Committee on the Judiciary, 102d Cong., 1st Sess., at 14 n.13 ( Jan. 8, 1991) (testimony of J.N. Moore) (referring to INS v. Chadha, 462 U.S. 919 [ 1983]).

The specifics of my in-depth congressional testimony, with background citations on the constitutional issues, will not be repeated in this chapter. For further analysis, see Statement of J. N. Moore in Hearings on Congress, the President, and the War Powers before the Subcommittee on National Security Policy and Scientific Developments of the House Committee on Foreign Affairs, 91st Cong., 2d Sess. ( June 25, 1970); and Statement by J. N. Moore , "Hearing of Federation of American Scientists," moderated by A. Frye ( Jan. 7, 1991, Fed. News Service: "Capitol Hill Hearing About the Middle-East").

4.
See generally Hearings on War Powers Legislation before the Senate Foreign Relations Committee, 92d Cong., 2d Sess., at 460 ( 1972) (statement of John Norton Moore, Apr. 26, 1971).
5.
See Robert F. Turner, Repealing the War Powers Resolution: Restoring the Rule of Law in U.S. Foreign Policy, chs. 2 & 3 ( 1991).
6.
462 U.S. 919 ( 1983).
7.
Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 610 ( 1952) ( Frankfurter, J., concurring).
8.
Oliver Wendall Holmes, The Common Law 1 ( 1886).
9.
For an analysis of the radical regime syndrome, see John Norton Moore, The Secret War in Central America 153 n.2 ( 1987).
10.
See R. J. Rummel, "The Rule of Law: Towards Eliminating War and Democide," Speech prepared for presentation to the American Bar Association Standing Committee on Law and National Security, Washington, D.C., Oct. 10-11, 1991. The principal scholar in this area believes that the figure is over 142 million killed, or roughly four times the number of persons killed in wars in the same time frame. R. J. Rummel, "Power Kills; Absolute Power Kills Absolutely," at 3 (Paper dated Oct. 20, 1991, Haiku Institute of Peace Research, Hawaii). See generally Professor Rummel's forthcoming book, tentatively entitled Death by Government, on democide in the twentieth century.
11.
Even the War Powers Resolution seems to reflect a congressional assumption of substantial presidential "emergency" or "immediate engagement" authority. Thus, section 5(b) of the resolution purports to terminate presidential use of U.S. armed forces only after the first 60 days from submission of the required report to Congress and makes provision for extending this period another 30 days. 50 U.S.C. § 1544(b). Interestingly, apparently for this reason, and perhaps others as well, the War Powers Resolution was not even invoked by those who sought to challenge the President's authority in the recent Gulf crisis. See, e.g., the brief of plaintiffs in Dellums v. Bush, 752 F. Supp. 1141 ( D.D.C. 1990).

-166-

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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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