Textualism and War Powers

Abstract

This Article explores the eighteenth-century use of the phrase "declare war," with the goal of shedding some light upon the original understanding of the Constitution's Declare War Clause It finds that "declaring" war in the eighteenth century had a broader meaning than is commonly supposed. Nations could declare war by formal proclamation, but nations could also "declare" by action alone. An armed attack showing an intent to settle differences between nations by force created a state of war between those nation& Launching such an attack, even in the absence of a formal proclamation, was called "declaring" war. As the Article explains this provides a textual basis for the common assertion that Congress's constitutional power "to declare War" broadly encompasses the power to initiate warfare. It also refutes the claim that the President can order military attacks upon foreign powers without Congress's approval so long as no formal declaration is involved. The Article further argues however, that since Congress's constitutional power is only to declare war (by proclamation or by authorizing an attack), presidential actions that do not create a state of war-even if they involve the use of military force or the threat or likelihood of war-do not require congressional authorization.

Keywords: war power, declare war, executive power, textualism, originalism

JEL Classification: K10, K33