Constitutionalism and War Making

Abstract

This article reviews two volumes that emphasize the role of inter-branch dialogue as a way of fulfilling the original constitutional design regarding the deployment of military force: Mariah Zeisberg’s War Powers: The Politics of Constitutional Authority and Stephen M. Griffin’s Long Wars and the Constitution. Both authors argue that the robustness of deliberations between Congress and the President, rather than the legality of military intervention per-se, ought to be the focus of the public’s concern with regard to war making. The Zeisberg and Griffin volumes tackle the problem of constructing constitutional meaning for a critical aspect of the government’s founding document—its allocation of war authorities—that generally escapes judicial interpretation and enforcement. This article argues that both books are too quick to dismiss law as a significant force for the very kind of institutional behavior they so urgently seek. Because Congress and the Executive are routinely involved in the production, review, and application of law—even when their interpretations are unlikely to be reviewed in court—they consequently do and should think of themselves as obligated to frame within a principled legal framework their deliberations over the exercise of government power, and this legal framing is critical to understanding the institutional dynamics and substantive outcomes that attend such deliberations. Further, this article questions whether these legally informed inter-branch negotiation practices can be institutionalized.