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

Author: Brien Hallett
Publisher: Cambridge University Press
ISBN: 9781107608573
Published In: August 2012
Format: Paperback , 288 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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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.

• First book to offer a radical internal re-organization of Congress itself to achieve the same objective

• Offers the provocative conclusion that the Constitution is fundamentally flawed because Congress is entirely incapable of declaring war

• Offers a comprehensive historical, legal, constitutional, moral and philosophical analysis of why Congress has failed to check an imperial presidency

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