Irrational War and Constitutional Design: A Reply to Professors Nzelibe and Yoo

19 Pages Posted: 20 Sep 2006

See all articles by Tom Ginsburg

Tom Ginsburg

University of Chicago Law School


In a recent essay entitled Rational War and Constitutional Design, Professors Jide Nzelibe and John Yoo develop a functional account of the constitutional allocation of war powers. They argue that a rational constitutional structure of war-making would balance democratic representation in the domestic sphere with an ability to signal information to other actors on the international plane. Drawing together principal-agent theory, institutional analysis and the literature on international crisis bargaining, they purport to show that an executive-centered system of war powers is superior to one with extensive legislative involvement. In this reply, we show that legislative involvement in decisions to go to war does as well or better in promoting democratic accountability and in signaling information to a foreign adversary. We also note that key assumptions about similarities between rogue states and terrorists are misguided and may lead to poor policy choices. We conclude that a proper reading of the empirical literature does not support Nzelibe and Yoo's position.

Keywords: international law, constitutional law

JEL Classification: K33

Suggested Citation

Ginsburg, Tom, Irrational War and Constitutional Design: A Reply to Professors Nzelibe and Yoo. Illinois Public Law Research Paper No. 06-13, Available at SSRN: or

Tom Ginsburg (Contact Author)

University of Chicago Law School ( email )

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