Zeisberg's Relational Conception of War Authority: Convergence and Divergence in Achieving a New Understanding of War Powers

35 Pages Posted: 14 Jan 2015

Date Written: 2015

Abstract

This essay, a contribution to a symposium on the presidential war powers debate, describes convergences and divergences between the approach I take in my book Long Wars and the Constitution with Mariah Zeisberg’s approach in her book War Powers: The Politics of Constitutional Authority. I first describe the convergences between our approaches in the context of examining the most prominent differences between our theories and the “standard” war powers debate.

Partly because Zeisberg identifies the defensive war theory as the leading rationale for broad presidential war powers, I independently provide a substantial critique of that theory in this essay. I first contextualize the defensive war theory by distinguishing between the two versions it has had in American history – a relatively narrow “Madisonian” version and the leading, more expansive “Hamiltonian” version. I advance several points against the Hamiltonian version: that it rests on a fallacy, is implausible in the light of American diplomatic history, and the distinction between “offensive” and “defensive” war is inherently unsound.

I finally discuss some divergences between my approach and Zeisberg’s, especially with respect to the use of presidential war powers after 1945. These divergences should not be understood as detracting from my genuine admiration and respect for Zeisberg’s work. In particular, I have no doubt that future scholarship will be influenced by her deeply sophisticated “relational” conception of war authority.

Keywords: war powers, presidential power, defensive war theory, Prize Cases

Suggested Citation

Griffin, Stephen M., Zeisberg's Relational Conception of War Authority: Convergence and Divergence in Achieving a New Understanding of War Powers (2015). Boston University Law Review, Vol. 95, 2015, Tulane Public Law Research Paper No. 15-1, Available at SSRN: https://ssrn.com/abstract=2548571

Stephen M. Griffin (Contact Author)

Tulane University Law School ( email )

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