Exhuming the Seemingly Moribund Declaration of War
52 Pages Posted: 21 Jan 2010
Date Written: 2008
Scholars and politicians insist that declarations of war are relics of the past. As proof, they note that in over two centuries the United States has declared war in a total of five ways and that the nation last declared war over sixty years ago. Perhaps because declarations seem so rare, relatively little scholarly attention has been paid to them. This Article considers the much neglected declaration of war, making two contributions. First, those who assert that Congress has not declared war in sixty years fundamentally misapprehend what it means to “declare war” under the Constitution and what constitutes a declaration of war. Whenever Congress authorizes or commands a war, it has issued a declaration of war, regardless of whether Congress uses the phrase “declare war.” This broader conception of what constitutes a declaration of war means that every war sanctioned by Congress in the past half century was a declared war, even though Congress never passed a formal declaration during that period. Second, congressional declarations of war need not be laconic documents that do no more than authorize warfare, leaving tremendous discretion to the Commander in Chief. Instead, Congress can enact detailed declarations, as was typical in the founding era. Among other things, war declarations may constrain the use of military force and may regulate the wartime rights of citizens and foreigners. By exhuming the declaration of war, we belatedly perceive that reports of its death are quite premature.
Keywords: Declaration of War, declaring war, treaty termination, rights of enemy nationals, order to use force, authorization to use force
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