|
List of Figures
|
xii
|
|
Acknowledgments
|
xiii
|
|
Prologue
|
xv
|
|
1 A Constitutional Tyranny and Presidential Dictatorship
|
1
|
|
Catch 22: Congressional Incapacity and a Dictatorial President
|
4
|
|
Organization of the Book
|
6
|
|
Part I: What Is the History?
|
9
|
|
2 How the President Declares War: The War of 1812
|
11
|
|
An Absurd War
|
12
|
|
A New Rhetoric of Diabolism
|
15
|
|
A New Congress for Young America
|
16
|
|
A New President or an Old Republican?
|
17
|
|
The War Cabinet
|
20
|
|
The War Hawks
|
21
|
|
Spring Arrives
|
23
|
|
A Dictatorial President Enters Congress
|
24
|
|
The Waiting Game
|
28
|
|
The EndGame
|
31
|
|
Analysis
|
33
|
|
The Absurd Consequences: A Unique Power or a “Divided, but Shared” Power?
|
33
|
|
The Role of Performative Speech Acts
|
35
|
|
Organizational Incapacity
|
37
|
|
Rule of Law
|
39
|
|
Conclusion
|
40
|
|
3 Why the Congress Ought Not Declare War: The Spanish-American War, 1898
|
42
|
|
The Pearl of the Antilles
|
43
|
|
The Restoration Monarchy
|
46
|
|
“To Convene and Give Information”
|
47
|
|
The Message
|
48
|
|
A Bicameral Congress and Electoral Politics
|
50
|
|
Let the “Games” Begin
|
52
|
|
The “Games” Continue in the Senate
|
54
|
|
The “Games” Return to the House
|
59
|
|
The End of the “Games”
|
61
|
|
Analysis
|
65
|
|
Moral Incapacity
|
65
|
|
Decorum and Organization
|
67
|
|
Conflict Resolution Potential
|
67
|
|
Drafting a High-Quality Text: Two Rhetorics
|
69
|
|
Political Politicians
|
70
|
|
4 A Plan for Acquiescence: The War Powers Resolution of 1973
|
72
|
|
An Imperial Presidency?
|
74
|
|
Exorbitant Transaction Costs, Difficulty Coordinating Shared Interests, and an Extensive Collective Action Problem
|
76
|
|
A Congressional Desire to Cooperate
|
78
|
|
Analysis
|
86
|
|
Part II: What Is a Declaration of War?
|
89
|
|
5 Declaring and Commanding: Forms, Functions, and Relationships
|
91
|
|
“Armed Conflict” versus War
|
93
|
|
The Impossibility of an “Undeclared” War
|
94
|
|
“Formal” versus “Informal” Declarations of War?
|
95
|
|
The Impact of Unconstitutional Declarations on International Law
|
97
|
|
War as a Speech Act: Alternative Types
|
101
|
|
Degrees of Existence
|
104
|
|
Degree of Justification
|
106
|
|
Degree of Ceremony
|
106
|
|
Degree of Perfection
|
107
|
|
War as a Speech Act: The Compositional Elements
|
108
|
|
Ends and Means, Declarer and Commander
|
113
|
|
The Difference between War in Theory and in Practice?
|
114
|
|
What Are the Ends of War?
|
117
|
|
“The End Is Preexistent in the Means”
|
118
|
|
Is Declaring Separable from Commanding?
|
121
|
|
The Primary Functions of Declarations of War
|
124
|
|
6 Lawful and Unlawful Declarations of War: Quantity over Quality
|
126
|
|
Defining the Problem
|
127
|
|
The Congressional Declarations of War
|
130
|
|
Second Continental Congress: The Declaration of Independence, 1776
|
130
|
|
Procedurally Perfect Congressional Enactments to Suppress Piracy, 1798–1823
|
130
|
|
Miscategorization: An Act for the Prosecution of the Existing War between the United States and the Republic of Mexico, 1846
|
131
|
|
Procedurally Imperfect Congressional Declarations of War
|
132
|
|
A. Without Authorization to Use the Armed Forces
|
132
|
|
B. With Authorization to Use the Armed Forces
|
133
|
|
Procedurally Perfect Congressional Declarations of War
|
134
|
|
The Presidential Declarations of War
|
136
|
|
The Town Crier Reads a Procedurally Imperfect Declaration of War
|
138
|
|
The Town Crier Rests
|
138
|
|
The Town Crier Reads a Procedurally Perfect Declaration of War
|
138
|
|
Analysis
|
144
|
|
7 Six Possible Structures
|
146
|
|
A Purely Royal or Executive Decision
|
147
|
|
A Mixed Decision, Type 1, Request for an Appropriation
|
148
|
|
A Mixed Decision, Type 2, Request for Authorization
|
150
|
|
A Mixed Decision, Type 3, U.S. Congress, Standing Committee Organization (1812, 1917, 1941)
|
154
|
|
A Mixed Decision, Type 4, U.S. Congress, Standing Committee Organization (1898)
|
156
|
|
A Purely Legislative Decision: Committee of the Whole Organization
|
157
|
|
Part III: What Are the Solutions?
|
161
|
|
8 A Constitutional Amendment
|
163
|
|
Social Orders and Democracy
|
164
|
|
Why Three Functions?
|
168
|
|
A Constitutional Amendment
|
175
|
|
9 A Congressional Work-Around
|
183
|
|
The Committee-of-the-Whole System
|
184
|
|
A Question of Quantity
|
186
|
|
A Changed Dynamic
|
191
|
|
A Question of Quality: A Degradation of Expertise
|
193
|
|
The National War Powers Commission Report of 2008
|
196
|
|
A Joint Drafting Committee
|
198
|
|
Part IV: What Is the Theory?
|
205
|
|
10 Bellum Justum et Pium: The Rule of Law and Roman “Piety”
|
207
|
|
An “Impious” Bush
|
211
|
|
Bureaucratic Propriety
|
213
|
|
11 The Rule of Law: Searching for Ontology
|
216
|
|
Universal Affectivity and Performativity
|
217
|
|
Performative Speech Acts: A Technical Vocabulary
|
219
|
|
Self-Contained and Not-Self-Contained Speech Acts
|
221
|
|
The Rule of Men: Slipping through the Gap between Word and World
|
223
|
|
How Not to Declare War: The Insufficiency of the Sufficient Consequences
|
232
|
|
Epilogue: Senator Malcolm Wallop
|
237
|
|
Appendix I: Five Congressional Declarations of War and One Appropriations Act
|
241
|
|
Appendix II: The Fœderative Powers in Parliamentary Governments
|
251
|
|
References
|
257
|
|
Index
|
265
|
