Cornell Law Review Volume 93 Issue 1

Unleashing the Dogs of War: What the Constitution Means by “Declare War”

Does Congress’s power to “declare war” extend beyond the ability to issue formal declarations of war and include the power to decide whether the United States will wage war? Relatedly, does the “declare war” power subsume the authority to decide whether the United States will wage war even when another nation already has declared war on the United States? Using a host of overlooked historical materials, 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, and any decision to wage war, however expressed, was a declaration of war. While the commencement of warfare was the strongest declaration of war because it unmistakably signaled a decision to wage war, other words and deeds could likewise constitute a declaration of war. The Constitution grants the “declare war” power to Congress only, and hence only Congress can decide whether the United States will start a war or wage war against a nation that already has declared war against the United States. Under the original Constitution, the President cannot make these fateful choices.

 

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