I have posted my article Textualism and War Powers (University of Chicago Law Review, Vol. 69, No. 4, p. 1543, 2002) (96 pages) on SSRN.  It’s from quite a while back but I think it remains a significant contribution.  Here is the abstract:

This Article explores the eighteenth-century use of the phrase “declare war,” with the goal of shedding some light upon the original understanding of the Constitution’s Declare War Clause It finds that “declaring” war in the eighteenth century had a broader meaning than is commonly supposed. Nations could declare war by formal proclamation, but nations could also “declare” by action alone. An armed attack showing an intent to settle differences between nations by force created a state of war between those nation& Launching such an attack, even in the absence of a formal proclamation, was called “declaring” war. As the Article explains this provides a textual basis for the common assertion that Congress’s constitutional power “to declare War” broadly encompasses the power to initiate warfare. It also refutes the claim that the President can order military attacks upon foreign powers without Congress’s approval so long as no formal declaration is involved. The Article further argues however, that since Congress’s constitutional power is only to declare war (by proclamation or by authorizing an attack), presidential actions that do not create a state of war-even if they involve the use of military force or the threat or likelihood of war-do not require congressional authorization.

The article was inspired by the apparent disconnect between the common assumption in the post-ratification period that the Constitution limited the President’s independent ability to initiate war and the text’s reference only to the power to “declare” war — which sound like a reference only to formal pronouncements.  As the abstract indicates, on further investigation it seemed clear (to me anyway) that “declare” war was used in a much broader sense in the eighteenth century, referring not just to formal proclamations but also to commencement of hostilities.  Thus there actually isn’t any tension between the text and the common founding-era interpretation of it.

Saikrishna Prakash in a subsequent article undertook a much more broad ranging investigation of eighteenth century sources and reached a similar conclusion about the meaning of “declare.”  I think it’s now a fairly common view among textualist/originalists.

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.


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