U.S. War and Emergency Powers: The Virtues of Constitutional Ambiguity

Posted: 10 Jan 2012  

Gordon Silverstein

Yale University - Law School

Date Written: December 2011


American liberals and conservatives agree about very little concerning foreign policy, war, and emergency powers, but they do agree that the Constitution's ambiguous allocation of foreign policy powers to the legislative, executive, and judicial branches is a problem that must be fixed. For conservatives, the answer has been a reliance on constitutional reinterpretation that might establish a bright line between executive power in foreign policy and war (which they embrace) and national authority to regulate domestic and economic affairs (which they do not). For liberals, who worry that constitutional ambiguity opens the door for the abuse of executive power, the solution has been to trade formal delegation of power constrained by strict statutory limits on the exercise of that power. These efforts -- liberal and conservative alike -- have failed, each producing results quite the opposite of what was sought. After setting these debates in their legal, historical, and political context, this review concludes with a reexamination of the potential virtues of constitutional ambiguity.

Suggested Citation

Silverstein, Gordon, U.S. War and Emergency Powers: The Virtues of Constitutional Ambiguity (December 2011). Annual Review of Law and Social Science, Vol. 7, pp. 237-267, 2011. Available at SSRN: https://ssrn.com/abstract=1982338 or http://dx.doi.org/10.1146/annurev-lawsocsci-102209-152927

Gordon Silverstein (Contact Author)

Yale University - Law School ( email )

127 Wall St.
New Haven, CT 06511
United States
203-432-4640 (Phone)

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