{"title":"Unleashing the Dogs of War: What the Constitution Means by 'Declare War'","authors":"S. Prakash","doi":"10.2139/SSRN.977244","DOIUrl":null,"url":null,"abstract":"Though a good deal of war powers scholarship makes claims about the original meaning of \"declare war,\" these works do not consider a host of sources pertinent to the inquiry. This Article considers these materials and sheds new light on two questions. Does Congress's power to declare war encompass the authority to decide whether the nation will wage war? Relatedly, does Congress's power to decide whether the country will wage war extend to those situations where another nation already has declared war on the United States? This Article answers both questions in the affirmative. In the eighteenth century the power to declare war was a power to decide whether a nation would wage war. Materials from that era reveal that any decision to wage war, however expressed, was a declaration of war. The commencement of warfare was regarded as the surest declaration of war. Because the Constitution grants Congress the power to declare war, only Congress can determine whether the nation will start a war or enter a war against a nation that already has declared war against the United States. Necessarily, the President cannot unilaterally choose to wage war against another nation, even when that nation has already declared war.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"105 1","pages":"45"},"PeriodicalIF":2.5000,"publicationDate":"2007-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"6","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"Cornell Law Review","FirstCategoryId":"90","ListUrlMain":"https://doi.org/10.2139/SSRN.977244","RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q1","JCRName":"LAW","Score":null,"Total":0}
引用次数: 6
Abstract
Though a good deal of war powers scholarship makes claims about the original meaning of "declare war," these works do not consider a host of sources pertinent to the inquiry. This Article considers these materials and sheds new light on two questions. Does Congress's power to declare war encompass the authority to decide whether the nation will wage war? Relatedly, does Congress's power to decide whether the country will wage war extend to those situations where another nation already has declared war on the United States? This Article answers both questions in the affirmative. In the eighteenth century the power to declare war was a power to decide whether a nation would wage war. Materials from that era reveal that any decision to wage war, however expressed, was a declaration of war. The commencement of warfare was regarded as the surest declaration of war. Because the Constitution grants Congress the power to declare war, only Congress can determine whether the nation will start a war or enter a war against a nation that already has declared war against the United States. Necessarily, the President cannot unilaterally choose to wage war against another nation, even when that nation has already declared war.
期刊介绍:
Founded in 1915, the Cornell Law Review is a student-run and student-edited journal that strives to publish novel scholarship that will have an immediate and lasting impact on the legal community. The Cornell Law Review publishes six issues annually consisting of articles, essays, book reviews, and student notes.