Declaring War
Congress, the President, and What the Constitution Does Not Say

Offers an historical, legal, constitutional, moral and philosophical analysis of the declarations of 1812, 1898 and the War Powers Resolution of 1973.

Brien Hallett (Author)

9781107608573, Cambridge University Press

Paperback / softback, published 13 August 2012

287 pages, 10 b/w illus. 10 tables
23.8 x 15.2 x 1.4 cm, 0.36 kg

Declaring War directly challenges the 200-year-old belief that Congress can and should declare war. By offering a detailed analysis of the declarations of 1812, 1898 and the War Powers Resolution of 1973, the book demonstrates the extent of the organizational and moral incapacity of Congress to declare war. It invokes Carl von Clausewitz's dictum that 'war is policy' to explain why declarations of war are an integral part of war and proposes two possible remedies - a constitutional amendment or, alternatively, a significant re-organization of Congress. It offers a comprehensive historical, legal, constitutional, moral and philosophical analysis of why Congress has failed to check an imperial presidency. The book draws on Roman history and international law to clarify the form, function and language of declarations of war and John Austin's speech act theory.

1. A constitutional tyranny and presidential dictatorship
Part I. What Is the History?: 2. How the president declares war: the War of 1812
3. Why the Congress ought not declare war: the Spanish-American War, 1898
4. A plan for acquiescence: the War Powers Resolution of 1973
Part II. What Is a Declaration of War?: 5. Declaring and commanding: forms, functions, and relationships
6. Lawful and unlawful declarations of war: quantity over quality
7. Six possible structures
Part III. What Are the Solutions?: 8. A constitutional amendment
9. A congressional work-around
Part IV. What Is the Theory?: 10. Bellum justum et pium: the rule of law and roman piety
11. The rule of law: searching for ontology
12. Senator Malcolm Wallop
Appendix I. Five congressional declarations of war and one appropriations act
Appendix II. The federative powers in parliamentary governments.

Subject Areas: Constitutional & administrative law [LND], Law [L], International relations [JPS], Politics & government [JP]