44 Pages Posted: 19 Sep 2007 Last revised: 10 Aug 2008
We respond here to Unleashing the Dogs of War by Sai Prakash, which represents the latest originalist argument that war cannot be started by the executive without congressional authorization. First, we argue that Prakash's interpretive approach imposes an unexplained burden of proof that places little to no importance on the starting point for constitutional interpretation: the text. The best reading of the text rejects Prakash's claim about Congress's power to declare war. We supplement our textualist reading by exploring constitutional structure, which should not tolerate the redundancies created by Prakash's approach. The key point here is that the constitutional structure already gives Congress more than enough constitutional authority through the creation and funding of the military, a power that was all the greater in the eighteenth century when the United States had no standing army or navy.
Second, we address Prakash's use of the historical sources and argue, in short, that he has thrown his net too wide. Accumulating statements where some diplomats and government officials used the phrase "declare war" in a broad sense ignores the use of the phrase in a constitutional setting. Examination of the important antecedents to the Constitution, developments in eighteenth-century American constitutional thought, and the broader intellectual understanding of war and international law during the ratification period shows that "declare war" does not bear the meaning that Prakash claims. We close with a more complex account of early war-making under the Washington and Jefferson administrations, an account that yields different lessons from those that Prakash has elicited.
Keywords: Law of war, war powers, constitutional interpretation, originalism
Suggested Citation: Suggested Citation
Delahunty, Robert J. and Yoo, John, Making War. Cornell Law Review, Vol. 92, 2007; U of St. Thomas Legal Studies Research Paper No. 07-32; UC Berkeley Public Law Research Paper No. 1015401. Available at SSRN: https://ssrn.com/abstract=1015401