Thoughts on War Today

War And the United States Constitution

War excites a lot of passions, as it should since it is so serious a matter. But it also excites a lot of black and white thinking, which is bad. Either you are for wholeheartedly or against. Some will take my essay today as a sign that I have become diffident. Not true. As I said, I think the UNSC did the right thing, and that those NATO and Arab League countries that have stepped up to the challenge are acting in accordance with international law, and that, whatever their ultimate motives, the side effect of their intervention has in fact been the salvation of thousands of lives and of a political movement for a freer Libya. But I think we would have all been better off if the emphasis had remained on civilian protection first and foremost, if better coordination with locals had be achieved more quickly, if the US component had comported with the US constitution, and if the Arab League had not lacked the courage of its convictions.(1)



Presidential Powers


The Constitution divides war powers between the Congress and the President. This division was intended by the framers to ensure that wars would not be entered into easily: it takes two keys, not one, to start the engine of war.


The Constitution's division of powers leaves the President with some exclusive powers as Commander-in-Chief (such as decisions on the field of battle), Congress with certain other exclusive powers (such as the ability to declare war and appropriate dollars to support the war effort), and a sort of "twilight zone" of concurrent powers. In the zone of concurrent powers, the Congress might effectively limit presidential power, but in the absence of express congressional limitations the President is free to act. Although on paper it might appear that the powers of Congress with respect to war are more dominant, the reality is that Presidential power has been more important--in part due to the modern need for quick responses to foreign threats and in part due to the many-headed nature of Congress. (2)


The Supreme Court And Presidential Power to Pursue War

The Supreme Court has had relatively little to say about the Constitution's war powers. Many interesting legal questions--such as the constitutionality of the "police action" in Korea or the "undeclared war" in Viet Nam--were never decided by the Court. (Although the Supreme Court had three opportunities to decide the constitutionality of the war in Viet Nam, it passed on each one.) (3)



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(1) http://law2.umkc.edu/faculty/projects/ftrials/conlaw/warandtreaty.htm

(2) http://www.juancole.com/ Top Ten Mistakes in the Libya War Posted on 06/19/2011 by Juan Cole

(3) http://law2.umkc.edu/faculty/projects/ftrials/conlaw/warandtreaty.htm