« Christopher J. Peters: Originalism, Stare Decisis, and Constitutional Authority
Michael Ramsey
| Main | Mitchell Berman & Kevin Toh: On What Distinguishes New Originalism from Old
Michael Ramsey
»

09/09/2013

Michael Stokes Paulsen on War Power and Syria
Michael Ramsey

A short, simple and elegant restatement of constitutional war powers that I agree with entirely: 

Michael Stokes Paulsen: How to Avoid an Unconstitutional War: A Beginner's Guide for Presidents and Congresses.  The core of it this:

The framers of the Constitution did not intend for the president of the United States to have the power to take the nation to war, all on his own. The Constitution’s allocation of war-power authority is, rather, a classic application of the framers’ vision of separation of powers. Congress, not the president, has the power “to declare war,” a term of art the framers used to embrace the decision to initiate a state of war with another nation or force.

Prior to the adoption of the Constitution, the powers of war and peace traditionally were regarded as part of the executive power—in England, the province of the king. The framers of the Constitution deliberately altered this balance by relocating the power to take the nation into a state of war from the executive to the legislature—to Congress. The records of the Constitutional Convention, the discussions in the ratifying conventions, the defense of the proposed Constitution by Alexander Hamilton, James Madison, and John Jay in The Federalist essays, and the statements of early presidents and congresses, are almost uniform in recognizing this as a foundational principle.

My only quibble is the essay's assumption that a limited attack on Syria, and similar limited uses of force, are "wars" in the constitutional sense.  I agree that they are (see here), but the point is not self-evident.