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Rational War and Constitutional Design


Jide Nzelibe


Northwestern University - School of Law

John Yoo


University of California at Berkeley School of Law; American Enterprise Institute


Yale Law Journal, Vol. 115, 2006
UC Berkeley Public Law Research Paper No. 894117
Northwestern Public Law Research Paper No. 894117

Abstract:     
Contemporary accounts of the allocation of war powers authority often focus on textual or historical debates as to whether the President or Congress holds the power to initiate military hostilities. In this Essay, we move beyond such debates and instead pursue a purely functional or comparative institutional analysis of the relationship between Congress and the President on war powers. More specifically, we focus on the following question: Which war powers system would best enhance the effectiveness of the United States in making decisions on war and peace? Our answer draws on one of the few facts considered to be close to an empirical truth in international relations: democracies do not tend to go to war with each other. First, we articulate and evaluate the various arguments that underpin the democratic peace literature and analyze their relationship to the United States constitutional structure of war powers. Second, we distinguish between two types of constitutional processes that would be most necessary for successfully combating different regimes. We argue that if the United States were involved in a dispute with another democracy, the President ought to involve Congress because a dual branch process would help facilitate a peaceful resolution to the dispute by allowing the United States to signal more effectively its intentions. If, however, the United States were involved in a dispute with a non-democracy or a terrorist organization, a unilateral presidential approach might make much more sense because a non-democratic regime or terrorist organization is unlikely to appreciate the value of congressional participation. Finally, we conclude with the observation that in the war powers debate, only an approach that gives the President the complete flexibility to seek congressional participation would permit the United States to adapt its domestic decision making structure to the exogenous demands of the international system.

Number of Pages in PDF File: 32

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Date posted: March 30, 2006  

Suggested Citation

Nzelibe, Jide and Yoo, John, Rational War and Constitutional Design. Yale Law Journal, Vol. 115, 2006; UC Berkeley Public Law Research Paper No. 894117; Northwestern Public Law Research Paper No. 894117. Available at SSRN: http://ssrn.com/abstract=894117

Contact Information

Jide Nzelibe (Contact Author)
Northwestern University - School of Law ( email )
375 E. Chicago Ave
Unit 1505
Chicago, IL 60611
United States
John Choon Yoo
University of California at Berkeley School of Law ( email )
Boalt Hall
890 Simon
Berkeley, CA 94720-7200
United States
510-643-5089 (Phone)
510-643-2673 (Fax)
American Enterprise Institute ( email )
1150 17th Street, N.W.
Washington, DC 20036
United States
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