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

See all articles by John Yoo

John Yoo

University of California at Berkeley School of Law; American Enterprise Institute; Stanford University - The Hoover Institution on War, Revolution and Peace

Abstract

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.

Suggested Citation

Yoo, John Choon, Clio at War: The Misuse of History in the War Powers Debate. University of Colorado Law Review, Vol. 70, pp. 1169-1222, 1999. Available at SSRN: https://ssrn.com/abstract=186311

John Choon Yoo (Contact Author)

University of California at Berkeley School of Law ( email )

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American Enterprise Institute ( email )

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Stanford University - The Hoover Institution on War, Revolution and Peace ( email )

Stanford, CA 94305-6010
United States

HOME PAGE: http://https://www.hoover.org/profiles/john-yoo

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