Clio at War: The Misuse of History in the War Powers Debate
University of Colorado Law Review, Vol. 70, pp. 1169-1222, 1999
Posted: 28 May 2001
This article critiques the current scholarly discussion of the allocation of the war power between the President and Congress. Many academics support the view that the president cannot engage the United States military in hostilities without congressional authorization based upon claims made about the original understanding of the Declare War Clause in Article I, Section 8 of the Constitution. These scholars have failed to use history in a rigorous manner in order to determine the original understanding by failing to pay proper attention to primary and secondary historical sources. When the sources are examined in their broader historical context, within the developments in constitutional thought that were occurring during the revolutionary and ratification period, a more flexible system of war making authority emerges, one in which the branches were to use their constitutional powers to cooperate or struggle over the control of war.
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