Law Lesson: Declarations of War, Last Post on this Topic

This will be my last post on the topic of war declarations. I hope. There were just two things left undiscussed.

First, I want to discuss the legal ramifications if Ron Paul, Alberto Gonzales, and various commenters are right about no constitutional declaration of war existing without a formal declaration.

Second, I will look back at 18th century writers to see what they thought about declarations of war.

I.

Just what are the implications if AUMFs, Tonkin Gulf Resolutions, and “Acts Against the Tripolitan Cruisers” are not examples where Congress has exercised its power to declare war?

The U.S. Constitution gives the power to declare war to Congress. That power is therefore implicitly withheld from the President. So what are we to make of situations where we know that a war is taking place and yet Congress has issued no formal declaration of war? Are those situations where Congress as informally declared war, as I contend? Or are they simply unconstitutional wars?

The Constitution does not explicitly give Congress the power to direct lesser uses of force than to “declare War.” Its only textual war powers are simply “to declare War,” and (arguably) to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” There is no constitutional provision giving Congress the power to issue “authorizations for the use of force.” If Congress possesses that power, it must be found in the Declare War Clause.

From this we must come to the shocking conclusion that if the Constitution requires a formal declaration of war then every piece of legislation authorizing military action short of formally declaring war for the last two centuries has been unconstitutional. That is truly an unbelievable proposition because it simply ignores practical reality.

II.

Also, I was thinking more about the “strict constructionist’s” argument in the original Declaration of War Law Lesson post, especially about how the Founders would have understood informal declarations of war like that which started the First Barbary War. I did a little digging and found some interesting discussions of war declarations from 18th century experts in international law.

The first is Emmerich de Vattel. He was a Swiss philosopher who did important work on Just War theory. Along the way he wrote a comprehensive book of international law titled The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns. An online copy can be found here (warning: it’s in French). Vattel wrote:

As it is possible that the present fear of our arms may make an impression on the mind of our adversary, and induce him to do us justice, - we owe this further regard to humanity, and especially to the lives and peace of the subjects, to declare to that unjust nation, or its chief, that we are at length going to have recourse to the last remedy, and make use of open force, for the purpose of bringing him to reason. This is called declaring war.

(Emphasis added.) He did not note any requirement that a declaration of war use the magic words. Rather, he went on to describe the then-current practice of nations:

[W]ar is at present published and declared by manifestos. These pieces never fail to contain the justificatory reasons, good or bad, on which the [sovereign] grounds his right to take up arms.

Vattel was strongly influenced by another philosopher, a German named Christian Wolff. Wolff had this to say of war declarations:

[W]e should indicate that we are going to bring war upon another, in order that, before there may be a resort to arms, he can offer fair conditions for peace, and thus war may be avoided.

From these two we can see how the 18th century viewed war declarations. They were intended to provide notice to the intended target of the reasons for war and the conditions for peace. The informal declarations of war that have dominated U.S. history match both these requirements.

posted by Gabriel Malor at 03:47 AM

| Access Comments