Harvard Law Review
Gannett House
1511 Massachusetts Ave
Cambridge, MA 02138
Editorial Office:
617-495-7889
617-496-5053 (fax)
Business Office:
617-495-4650
617-495-2748 (fax)
|
|
 |
|
THE
COMMANDER IN CHIEF AT THE LOWEST EBB — A CONSTITUTIONAL HISTORY
by David J. Barron and Martin S. Lederman [ Full Text
] |
|
| 121 Harv. L.
Rev. 941 (2008) |
| Over the past
half-century, discussions of constitutional war powers have focused on the scope of the
President’s “inherent” power as Commander in Chief to act in the
absence of congressional authorization. Professors Barron and Lederman argue that
attention should now shift to the fundamental question of whether and when the President
may exercise Article II war powers in contravention of congressional limitations, when
the President’s authority as Commander in Chief is at its “lowest ebb.”
This Article is the second part of a two-part effort to determine how the constitutional
argument concerning such preclusive executive war powers is best conceived. |
| In the
companion Article, Professors Barron and Lederman described the structural forces
responsible for this shift in the ground of debate and demonstrated that evidence from
the Founding era does not reveal an original understanding that the Commander in Chief
enjoyed preclusive authority over matters pertaining to warmaking. In this Article, they
move the story forward and systematically examine how the three branches have actually
considered and treated this issue from 1789 to the present day. They examine those cases
in which the President has asserted or relied upon a claim of preclusive war powers. They
also review the discussions of this issue that have appeared in Supreme Court opinions;
in major debates on the floor of Congress; and in the leading constitutional and war
powers treatises, articles, and books of the past two centuries. |
| This
historical review shows that the view embraced by most contemporary war powers scholars
— namely, that our constitutional tradition has long established that the Commander
in Chief enjoys some substantive powers that are preclusive of congressional control with
respect to the command of forces and the conduct of campaigns — is unwarranted. In
fact, Congress has been an active participant in setting the terms of battle and the
conduct and composition of the armed forces and militia more generally, while the
Executive (at least until recently) generally has accepted such legislative constraints
as legitimate. Although history is not dispositive of the constitutional question,
legislators and executive branch actors should not abandon two hundred years of
historical practice too hastily, and should resist the new and troubling claim that the
Executive is entitled to unfettered discretion in the conduct of war. [ More
] |
© 2008 The Harvard Law Review
Association
webmaster@harvardlawreview.org
|
|
