A two-front war

Cornell Law Review

Volumn 93, Issue 1, 2007, Pages 197-219

  Prakash, Saikrishna ^a,b,c  

^a UNIVERSITY OF SAN DIEGO   (United States)

^b YALE UNIVERSITY   (United States)

^c STANFORD UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 38149062654     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (140)

1. Robert J. Delahunty & John Yoo, Response, Making War, 93 CORNELL L. REV. 123 (2007).
2. Michael D. Ramsey, Response, The President's Power to Respond to Attacks, 93 CORNELL L. REV. 169 (2007).
3. Saikrishna Prakash, Unleashing the Dogs of War: What the Constitution Means by "Declare War," 93 CORNELL L. REV. 45 (2007). In large measure, Unleashing responds to the excellent war powers scholarship of Professors Yoo and Ramsey.
4. See MICHAEL D. RAMSEY, THE CONSTITUTION'S TEXT IN FOREIGN AFFAIRS 218-49 (2007);
5. JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11 (2005);
6. Michael D. Ramsey, Textualism and War Powers, 69 U. CHI. L. REV. 1543 (2002);
7. John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167, 246-47 (1996).
8. See Prakash, supra note 3, at 49-50, 52-54 (describing the categorical theory).
9. See id. at 46-47.
10. See YOO, supra note 3, passim; Yoo, supra note 3, passim.
11. See Prakash, supra note 3, at 53-54, 67-74.
12. 1 JACQUES NECKER, AN ESSAY ON THE TRUE PRINCIPLES OF THE EXECUTIVE POWER IN GREAT STATES 273 (London, G.G.J. & J. Robinson 1792).
13. See Delahunty & Yoo, supra note 1, at 133, 136, 146.
14. See id. at 133, 136.
15. See id. at 124, 167.
16. See id. at 127, 166-67.
17. See id. at 129.
18. See id.
19. See Prakash, supra note 3, at 47.
20. Readers seeking a response to Making War's analysis of the provisions that bear on the meaning of "declare war" should read Unleashing's textual section. See Prakash, supra note 3, at 54-59.
21. See Delahunty & Yoo, supra note 1, at 126.
22. See id. at 133.
23. Id. at 126.
24. Id. at 125.
25. Prakash, supra note 3, at 54.
26. In truth, Unleashing differs little from Professor Yoo's work in this area. Professor Yoo's previous scholarship never claimed that the Constitution's text, when read in isolation, mandates the narrow reading of "declare war." Each work also examined history to help establish the formalist theory.
27. Delahunty & Yoo, supra note 1, at 129-33.
28. Prakash, supra note 3, at 62-65.
29. Delahunty & Yoo, supra note 1, at 151-52.
30. See id. at 153, 155.
31. Id. at 152.
32. See Saikrishna Prakash, Declarations of War: A Primer 10-18 (Sept. 13, 2007) (unpublished manuscript, on file with author).
33. Delahunty & Yoo, supra note 1, at 152.
34. See id. at 128-29.
35. Id. at 150.
36. See id. at 151-56.
37. See Prakash, supra note 3, at 49.
38. The Maria Magdalena, (1779) 165 Eng. Rep. 57, 58 (Adm.) (cited in Ramsey, supra note 3, at 1585).
39. See Ramsey, supra note 3, at 1579-88.
40. Delahunty & Yoo, supra note 1, at 152.
41. See THE FEDERALIST NO. 25, at 165 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
42. Delahunty & Yoo, supra note 1, at 155.
43. See, e.g., King of Great Britain's Declaration of War Against the King of Spain, in 3 NAVAL AND MILITARY MEMOIRS OF GREAT BRITAIN FROM 1727 TO 1783, at 340, 341-42 (Robert Beatson ed., London, Longman, Hurst, Rees, & Orme 1804) [hereinafter NAVAL AND MILITARY MEMOIRS] (reproducing England's declaration of war against Spain in which England ordered the use of military force);
44. Spanish Declaration of War Against England, in 3 NAVAL AND MILITARY MEMOIRS OF GREAT BRITAIN FROM 1727 TO 1783, supra, at 342, 343 (containing Spain's declaration of war against England in which Spain ordered the use of military force).
45. See Delahunty & Yoo, supra note 1, at 151-55.
46. One cannot cite the Commander in Chief power as the answer, because Commanders in Chief did not have the power to wage war without authority from someone else. As Commander in Chief of the Continental Army, George Washington certainly could not elect to wage war against Russia or Sweden. Indeed, President Washington agreed that he could not make war merely because he was Commander in Chief. See infra text accompanying notes 47-49 (disclaiming his authority to wage war against the Creek Indians because Congress had the "declare war" power).
47. In Unleashing, I also observed that the formalist theory makes it impossible for Congress to exercise two other traditional functions of a declaration: giving advanced notice of warfare and issuing conditional declarations. See Prakash, supra note 3, at 59, 63. Making War does not respond to these arguments.
48. Delahunty & Yoo, supra note 1, at 158-66.
49. Prakash, supra note 3, at 83 n.196.
50. See id. at 81-84.
51. Unleashing cites new evidence from, among others, James Madison, Rufus King, Nathanial Gorham, and Robert Livingston. See id. at 86-88.
52. Letter from George Washington to Governor William Moultrie (Aug. 28, 1793), in 33 THE WRITINGS OF GEORGE WASHINGTON 73, 73 (John C. Fitzpatrick ed., 1940).
53. Prakash, supra note 3, at 97-98.
54. Making War argues that Washington ordered a war against the Wabash without congressional authorization. See Delahunty & Yoo, supra note 1, at 158-62. But I agree with Sofaer that Congress impliedly authorized the war. See ABRAHAM D. SOFAER, WAR, FOREIGN AFFAIRS AND CONSTITUTIONAL POWER 122-23 (1976). In other words, Congress informally declared war.
55. Prakash, supra note 3, at 101-02.
56. Id. at 103-05.
57. Id. at 105-06.
58. Id. at 97-107.
59. Alexander Hamilton, Examination of Jefferson's Message to Congress of December 7, 1801, No.1 (Dec. 17, 1801), in 8 THE WORKS OF ALEXANDER HAMILTON 246, 249 (Henry Cabot Lodge ed., 1904).
60. See Prakash, supra note 3, at 92-93; see also JAMES KENT, DISSERTATIONS: BEING THE PRELIMINARY PART OF A COURSE OF LAW LECTURES 66 (New York, 1795) (noting that "war can only be commenced by an act or resolution of [C]ongress").
61. See SOFAER, supra note 49, at 359 (quoting Representative Alexander Smyth).
62. See id. at 370-72.
63. See Delahunty & Yoo, supra note 1, at 125.
64. See Curtis A. Bradley &Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 HARV. L. REV. 2047, 2062 (2005) (noting that all American formal declarations of war authorized the President to use force).
65. Act of June 24, 1812, 2 Stat. 755 (obsolete) (declaring War between the United Kingdom of Great Britain and Ireland and the dependencies thereof, and the United States of America and their territories).
66. See, e.g., Act of Apr. 25, 1898, ch. 189, 30 Stat. 364 (declaring war against Spain and directing the President to use the military to wage war); Joint Resolution of Apr. 6, 1917, ch. 1, 40 Stat. 1 (declaring war against Germany and directing the President to use the military to wage war); Joint Resolution of Dec. 8, 1941, ch. 561, 55 Stat. 795 (declaring war against Japan and directing the President to use the military to wage war).
67. See Ramsey, supra note 2, at 169.
68. See Ramsey, supra note 3.
69. See Prakash, supra note 3, at 94-112.
70. See id. at 94-107.
71. See id. at 94-112.
72. See Ramsey, supra note 2.
73. See id. at 173-74, 190.
74. See id. at 190.
75. STEPHEN C. NEFF, WAR AND THE LAW OF NATIONS 142-47 (2005).
76. See id. at 145-47.
77. See Prakash, supra note 3, at 108-09.
78. Neff cites two such response declarations, but claims that the practice was not common. See NEFF, supra note 70, at 143-44. But a review of numerous response declarations found in the multivolume sets reveals otherwise. See A GENERAL COLLECTION OF TREATYS, DECLARATIONS OF WAR, MANIFESTOS, AND OTHER PUBLICK PAPERS, RELATING TO PEACE AND WAR (London, 1710) [hereinafter A GENERAL COLLECTION];
79. NAVAL AND MILITARY MEMOIRS, supra note 39. There are about a dozen formal response declarations found within these volumes.
80. See, e.g., 1 A GENERAL COLLECTION, supra, at 256, 259-60 (Netherlands declaring war against France and noting that France had declared war first); id. at 272, 273 (Spain declaring war against France and noting that France had declared war first);
81. 3 NAVAL AND MILITARY MEMOIRS, supra note 39, at 13 (Spain declaring war against England after noting that England had declared war first); 3 id. at 45, 46 (England declaring war against France after noting that France had declared war first). Other declarations cite hostilities as a reason for declaring war. Given the prevailing sense that hostilities were declarations of war, declarations that complained about the other nation's hostilities were response declarations of war. See, e.g., 3 id. at 102 (England declaring war and complaining that France had commenced war against England).
82. See Act of May 13, 1846, ch. 16, 9 Stat. 9 (declaring war against Mexico and noting that a state of war existed because of the "act of the Republic of Mexico"); Joint Resolution of Dec. 11, 1941, ch. 564, 55 Stat. 796 (declaring war against Germany and noting that Germany had already formally declared war); Joint Resolution of Dec. 11, 1941, ch. 565, 55 Stat. 797 (declaring war against Italy and noting that Italy had already formally declared war); see also Prakash, supra note 3, at 97 (discussing the 1812 declaration against England).
83. See Ramsey, supra note 3, at 1596.
84. See Prakash, supra note 3, at 49.
85. In Power to Respond, Professor Ramsey claims that "Unleashing shows that declarations of war were sometimes associated with the decision to resist." Ramsey, supra note 2, at 176. Yet in Unleashing, I never showed that mere "decisions to resist" were viewed as declarations. Instead, I reveal that decisions to wage war, made in whatever context, were seen as declarations. Indeed, no one described the fending off of an attack, without more, as a declaration of war. Instead, individuals reserved that label for large-scale hostilities that made clear that the victim of the initial declaration had chosen to declare war.
86. Prakash, supra note 3, at 48-49.
87. See id. at 110-11.
88. Ramsey, supra note 2, at 191-92.
89. See Prakash, supra note 3, at 66, 111-12. By not mentioning the many other alternatives to waging war discussed in Unleashing, Professor Ramsey mistakenly suggests that I posit that a nation must surrender if it does not fight. See Ramsey, supra note 2, at 171, 190.
90. Prakash, supra note 3, at 110.
91. See id. at 100-01.
92. See supra notes 59-60 and accompanying text.
93. See supra notes 25-27 and accompanying text.
94. Although Power to Respond does not discuss the many other functions of a declaration of war, Professor Ramsey recognized in his prior work that declarations did more than create a state of war. See Ramsey, supra note 3, at 1586-87.
95. See Act of June 18, 1812, ch. 102, 2 Stat. 755 (declaring that war existed between America and England); see also French Declaration of War against England and Holland, in THE CONSTITUTIONS AND OTHER SELECT DOCUMENTS ILLUSTRATIVE OF THE HISTORY OF FRANCE, 1789-1901, at 148, 151 (Frank Malloy Anderson ed., 1904) (noting that France "is at war" with England and Holland because the latter two informally declared war on France).
96. In a bid to cast doubt on this incontrovertible usage, Professor Ramsey tries to make hay with my claim that nations that merely defended themselves had not declared war, while nations that embarked on offensive measures had declared war. See Ramsey, supra note 2, at 173. In Unleashing, I assert that the former was not a declaration of war because it did not signal that the nation ordering such force had decided to wage war generally. The latter - offensive measures - was a declaration because it indicated a decision to wage war, or so I argue. See Prakash, supra note 3, at 117-19. Consistent with this argument, both Washington and Jefferson repeatedly claimed that, while the President could order defensive measures, he could not order offensive measures because that would usurp the congressional power to declare war. See id. at 97-99, 103-05. Moreover, Neff's discussion of Portugal and the Netherlands suggests the same dividing line, for the latter certainly defended themselves against English attack even while insisting that they were not at war with England. See NEFF, supra note 70, at 145-47. In Power to Respond, Professor Ramsey's attempted haymaking starts with an area of obvious agreement. All agree that not every use of force was a declaration of war. He then argues that because this is true and because (in his view) no one distinguished offensive from defensive operations, it somehow follows that no one could have thought that decisions to wage war made in the response context were declarations of war at all. See Ramsey, supra note 2, at 173-76. Apart from the fact that the last claim flies in the face of actual usage, the argument is unsound. If we assume that (a) everyone agreed that certain uses of force in the response context were not declarations of war, (b) everyone agreed that other, more vigorous uses of force were declarations of war, and (c) (counterfactually) no one discussed the dividing line between these uses of force, then we face the difficult task of reconstructing the dividing line. The undoubted difficulty in discerning the dividing line does not justify rejecting evidence that proves that response declarations were common. In any event, Professor Ramsey fails to realize in Power to Respond that his argument, if taken seriously, applies equally to Textualism's claim about informal initiation declarations of war. Recall that in Textualism, Professor Ramsey argued that certain large-scale uses of force were initiation declarations of war because they signaled a decision to wage war. See Ramsey, supra note 3, at 1632. At the same time, in Textualism, he admits that not all initial uses of force were declarations of war. See id. at 1632-33. A cannonball fired by one nation's vessel upon another nation's vessel, without more, was surely not an informal declaration of war. Nor was a wayward bullet that happened to cross the border. Despite clarity at these extremes of the continuum, we cannot determine exactly what quantum of force was necessary to say that a nation had crossed the threshold and moved from a nondeclaratory use of military force to an informal initiation declaration of war. Indeed, neither Textualism nor Power to Respond offers any such threshold or "show[s] any cases where [initiation] declarations of war were associated with" raising the level of force from one level to another. See Ramsey, supra note 2, at 176. Notwithstanding this evidentiary hole, Professor Ramsey confidently argues in Textualism that some level of force was sufficient to make clear that a nation had issued an initiation declaration of war. See Ramsey, supra note 3, at 1546. He reaches this conclusion by demonstrating, as do I in Unleashing, that numerous individuals said that a decision to wage war was a declaration of war. Professor Ramsey evinces no concern in Textualism about his failure to unearth evidence relevant to discerning the level of military force that distinguishes mere uses of force from initiation declarations. What is true for initiation declarations holds equally true for response declarations. My alleged failure to show that "shifting from defense to offense" was a response declaration of war matters not a whit more than Professor Ramsey's failure in Textualism to show that shifting from one level of force to another was an initiation declaration of war.
97. See Prakash, supra note 3, at 97-107.
98. See Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231, 295-96 (2001).
99. See Ramsey, supra note 2, at 177.
100. See id.
101. See id. at 177-79.
102. Id. at 177.
103. Letter from George Washington to Timothy Pickering (Mar. 10, 1795), in 11 THE WRITINGS OF GEORGE WASHINGTON 18, 18 (Jared Sparks ed., Boston, Little, Brown, & Co. 1855);
104. see also Letter from George Washington to John Sinclair (Feb. 20, 1796), in 2 THE CORRESPONDENCE OF THE RIGHT HONORABLE SIR JOHN SINCLAIR, BART. 22, 22 (London, Henry Colburn & Richard Bentley 1831) (noting that there were expenses related to the Indian "wars").
105. Letter from Thomas Jefferson to William Carmichael and William Short (June 30, 1793), in 9 THE WRITINGS OF THOMAS JEFFERSON 148, 155 (Albert Ellery Bergh ed., 1907).
106. Letter from Thomas Jefferson to William Carmichael and William Short (May 31, 1793), in 9 THE WRITINGS OF THOMAS JEFFERSON, supra note 96, at 101, 103.
107. Letter from Thomas Jefferson to James Madison (June 2, 1793), in 9 THE WRITINGS OF THOMAS JEFFERSON, supra note 96, at 105, 106.
108. People were uncertain about whether hostilities would continue, not whether the Indian nations had declared war. Note that the letters quoted in Power to Respond point out that there had been no recent hostilities at the time the letters were written. Ramsey, supra note 2, at 178 (quoting Letter from Henry Knox to Edward Telfair (Sept. 5, 1793), in 4 AMERICAN STATE PAPERS: INDIAN AFFAIRS 365, 365 (Walter Lowrie & Matthew St. Clair Clarke eds., D.C., Gales & Seaton 1832);
109. Letter from Edward Telfair to Henry Knox (July 24, 1793), in 4 AMERICAN STATE PAPERS: INDIAN AFFAIRS, supra, at 370, 370. But that is irrelevant under the pragmatic theory. When a nation declares war, as the Creek did in 1793, it does not matter whether any hostilities follow because the declaration supposedly creates a state of war, rendering the "declare war" power irrelevant.
110. See Treaty with the Cherokee Indians, U.S.-Cherokee, June 26, 1794, 7 Stat. 43 (discussing the desire to "re-establish[ ] peace"); Treaty with the Creeks, U.S.-Creek, June 29, 1796, 7 Stat. 56 (describing the treaty as a peace treaty).
111. See Prakash, supra note 3, at 97-101.
112. See id. at 98-99.
113. Letter from Henry Knox to George Washington (Oct. 9, 1792), in 11 PAPERS OF GEORGE WASHINGTON 212, 212 (Philander Chase & Christine Sternberg Patrick eds., 2002).
114. Id.
115. See Prakash, supra note 3, at 100-01.
116. Letter from Secretary of War to the Governor of Virginia (Oct. 9, 1792), in 4 AMERICAN STATE PAPERS: INDIAN AFFAIRS, supra note 99, at 261, 261.
117. As Unleashing discusses, Knox wrote similar letters in the aftermath of the Creek declaration of war, none of which suggests that the Creeks had not declared war. See Prakash, supra note 3, at 100-01 (quoting Letter from Henry Knox to William Telfair (Sept. 5, 1793), in 4 AMERICAN STATE PAPERS: INDIAN AFFAIRS, supra note 99, at 365, 365).
118. Knox had given Governor Blount's letter to the President, apparently with the idea that the President would instruct Knox as to what response to give. Indeed, Knox's letter to Blount noted that Washington might have to convey further directions, indicating that Knox's letter reflected Washington's views. See Letter from Secretary of War to Governor Blount (Oct. 9, 1792), in 4 AMERICAN STATE PAPERS: INDIAN AFFAIRS, supra note 99, at 261, 261.
119. See Prakash, supra note 3, at 98, 100.
120. See supra text accompanying note 95.
121. Letter of Henry Knox to Governor William Blount (May 14, 1793), in 4 AMERICAN STATE PAPERS: INDIAN AFFAIRS, supra note 99, at 429, 429.
122. ALEXANDER DECONDE, THE QUASI-WAR: THE POLITICS AND DIPLOMACY OF THE UNDECLARED WAR WITH FRANCE 23 (1966). Abigail Adams also thought that France had been waging war against the United States for months before Congress declared a limited naval war.
123. See JOHN FERLING, JOHN ADAMS: A LIFE 356 (1992).
124. Finally, one should note that Hamilton advised James McHenry about Adams's limited constitutional powers, see Prakash, supra note 3, at 102, within a month after Hamilton wrote that "[t]he despots of France are waging war against us," see Titus Manlius, The Stand, N.Y. COMMERCIAL ADVERTISER, reprinted in 6 THE WORKS OF ALEXANDER HAMILTON, supra note 54, at 259, 265. Power to Respond cites leading modern historians and the French government's beliefs about whether France was at war with the United States. See Ramsey, supra note 2, at 183 n.58. Moreover, Power to Respond asserts that debates in Congress "reflected an understanding" that France was at peace with the United States. Id. at 183.
125. The former point is irrelevant because what matters under the pragmatic theory is not what France thought or what modern historians say but what President Adams thought. On the latter claim, Professor Ramsey is mistaken in supposing a general understanding. There clearly were some who agreed with President Adams, his wife, and Hamilton. See, e.g., 8 ANNALS OF CONG. 1327 (1851) (noting Representative Samuel Sewall's statement that the present situation "ought to be considered as a state of war, not declared by us, but against us, by the French Republic"); id. at 1321 (noting Representative Abraham Baldwin's comment that "some persons declare that the present state of things is already a state of war"). Shortly before enacting statutes pushing the United States into war, some representatives favored stating that there was a state of war between the United States and France. See DECONDE, supra, at 105. One representative, Robert Goodloe Harper, said, "War is made upon us." Id.
126. Both Power to Respond and Unleashing take the view that in the initiation context, a nation could only have been at war with another nation if the first nation had declared war, either formally or informally. Accordingly, Adams's belief that France was at war with the United States necessarily implies that France had informally declared war. See Prakash, supra note 3, at 102-03.
127. See Ramsey, supra note 2, at 181-84.
128. Prakash, supra note 3, at 105. Consistent with Madison's view, a congressional committee noted that England had declared war. Id.
129. 2 THEODORE LYMAN, JR., THE DIPLOMACY OF THE UNITED STATES 369 (2d ed., Boston, Wells & Lilly 1828).
130. See Prakash, supra note 3, at 106.
131. Following Congress's declaration, Madison sent a letter to the Dey noting that Algeria had declared war first. See Letter from James Madison to the Dey of Algiers (Apr. 12, 1815), in 2 THE DIPLOMACY OF THE UNITED STATES, supra note 115, at 373, 373.
132. See Ramsey, supra note 2, at 184-85. Power to Respond also cites Hamilton's The Examination, in which Hamilton, writing as Lucius Crassus, criticizes Jefferson's claims about the "declare war" power. See id. at 187.
133. In Unleashing, I discuss this cabinet opinion, including some details that offer a more nuanced picture of the cabinet discussions. See Prakash, supra note 3, at 107 n.334 (discussing notes from the cabinet meeting). I also discuss how Alexander Hamilton's pointed criticisms of Jefferson are inconsistent with his prior writings and the advice he gave Washington and the Adams Administration. See id. at 109-10.
134. See id. at 103-04.
135. See id.
136. Id.
137. The view of the 1802 Congress was hardly isolated, as it was also reflected in the 1812 and 1815 declarations of war against England and Algeria. Moreover, individual members of Congress also voiced this view. See, e.g., 4 ANNALS OF CONG. 737 (1855) (noting the comments of Representative Dayton that if war should break out during congressional recess, it would make sense for the President to have the power to increase the size of the Army so that the Army would be "prepared to act the moment that hostilities should be declared by the constituted authority"). This comment assumes that Congress must declare war even after another nation has begun waging war.
138. See also 8 ANNALS OF CONG. 2117 (1851) (noting the comments of Representative Sitgreaves that the country is in a state of war, but also arguing that "it is only competent for Congress to declare the country in war; therefore, until that declaration is made by this department, the Executive and Judiciary cannot act in the same way as if the country was at war").
139. Power to Respond also discusses the Monroe Administration and claims that after the Seminole had waged war against the United States, Monroe fought a war without congressional authorization. See Ramsey, supra note 2, at 188-89. I disagree with Professor Ramsey's conclusion that Congress had not authorized action against the Seminoles. Rather, I agree with Sofaer that appropriations authorized the warfare. See SOFAER, supra note 49, at 360, 362-63, 377. If this explanation is correct, it too supports the view that even after another nation declares war on the United States, Congress must formally or informally declare war if the nation is to fight a war. Whether the declaration comes in a joint resolution with language expressly declaring war or in an appropriation informally declaring war does not matter.
140. See Ramsey, supra note 2, at 177-84.