Exhuming the Seemingly Moribund Declaration of War

George Washington Law Review

Volumn 77, Issue 1, 2008, Pages 89-140

  Prakash, Saikrishna Bangalore ^a  

^a UNIVERSITY OF SAN DIEGO   (United States)

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EID: 65349112998     PISSN: 00168076     EISSN: None     Source Type: Journal    
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References (199)

1. See, e.g., BRIEN HALLETT, THE LOST ART OF DECLARING WAR 34-36 (1998) (noting that formal declarations are no longer issued).
2. See, e.g., 140 CONG. REC. 28,527 (1994) (recording Representative Henry Hyde of the House Committee on Foreign Affairs calling declarations of war "anachronistic" in debate over use of force in Haiti).
3. See, e.g., David B. Sentelle, National Security Law: More Questions than Answers, 31 FLA. ST. U. L. REV. 1, 5-6 (2003).
4. See RICHARD F. GRIMMETT, CONG. RESEARCH SERV., INSTANCES OF USE OF UNITED STATES ARMED FORCES ABROAD, 1798-2006, at 15-39 (2007) (noting that the last declaration of war by the United States occurred in World War II).
5. See John Hart Ely, The American War in Indochina, Part I: The (Troubled) Constitutionality of the War They Told Us About, 42 STAN. L. REV. 877, 888 n.41 (1990) ("[S]ince World War II declarations of war have essentially vanished, world-wide.").
6. See, e.g.; Harold Hongju Koh, The Coase Theorem and the War Power: A Response, 41 DUKE L.J. 122, 125-27 (1991) (arguing that Congress must authorize war but need not issue a formal declaration).
7. See Robert F. Turner, The War on Terrorism and the Modem Relevance of the Congressional Power to "Declare War," 25 HARV. J.L. & PUB. POL'Y 519, 537 (2002) (arguing that the power to declare war is an anachronism).
8. See, e.g.; Philip Bobbitt, War Powers: An Essay on John Hart Ely's War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath, 92 MICH. L. REV. 1364, 1384 (1994) (claiming that the naval war with France at the end of the eighteenth century was an "undeclared" war) J. Gregory Sidak, To Declare War, 41 DUKE L.J. 27, 39-40 (1991) (noting that the wars with Vietnam and Korea were undeclared); Mark E. Brandon, War and American Constitutional Order, 56 VAND. L. REV. 1815, 1819 (2003) (making same point about those two wars).
9. By "founding era," this Article references the late-seventeenth, eighteenth, and early-nineteenth centuries. I use a broader period than many might associate with the Constitution's founding because I want to underscore that the expansive sense of "declaration of war" outlined in this Article did not merely exist in 1789 but had existed (and continued to exist) for quite some time. The Article focuses on the founding era for two reasons. First, by focusing on a particular period, the inquiry has a manageable scope. A discussion of the forms and functions of declarations of war that extended from the ancient era to the modern era would be too diffuse and unwieldy for a law review article. Second, many are interested in understanding the Constitution's original framework, something made possible by focusing on practices and understandings from the periods that, broadly speaking, bracket the Constitution's ratification. For some, the original framework provides the Constitution's current meaning; for many others, it provides a point of departure, a useful reference point, or merely something to consider in discerning the Constitution's present meaning. References to what the Constitution means or provides should be understood as claims about the original meaning of the Constitution. Obviously, those who regard original meaning as but one factor in discerning constitutional meaning, and those who reject that methodology entirely, will want to examine other sources of constitutional meaning to discern the Constitution's present meaning.
10. See Koh, supra note 6, at 128 (drawing conclusions about declarations from a perusal of United States declarations and concluding that declarations necessarily are terse); See also Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 HARV. L. REV. 2047, 2062-63 (2005) (same).
11. Existing scholarly considerations of the power to declare war have focused almost exclusively on the important question of whether Congress has a monopoly on the commencement of warfare. For some of the best scholarship on this question, See generally MICHAEL D. RAMSEY, THE CONSTITUTION'S TEXT IN FOREIGN AFFAIRS (2007) [hereinafter RAMSEY, THE CONSTITUTION'S TEXT]; JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11 (2005); Michael D. Ramsey, Textualism and War Powers, 69 U. Chi. L. Rev. 1543 (2002) [hereinafter Ramsey, Textualism]; and John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167 (1996) [hereinafter Yoo, The Continuation of Politics]. For my views on this question, See Saikrishna Prakash, Unleashing the Dogs of War: What the Constitution Means by "Declare War," 93 CORNELL L. REV. 45 (2007) [hereinafter Prakash, "Declare War"] and Saikrishna Prakash, A Two-Front War, 93 CORNELL L. REV. 197 (2007). This Article adds a new dimension by revealing the many forms and functions of declarations of war and by highlighting the implications these forms and functions have for the Constitution's separation of powers. Though both Professor Ramsey and Professor Yoo touch upon such matters as well, their analysis is limited because their primary focus is on the power to start a war. An older article whose title Seems quite promising, Clyde Eagleton, The Form and Function of the Declaration of War, 32 Am. J. Int'l L. 19 (1938), raises more questions than it answers and never conducts a systematic examination of founding-era declarations.
12. The focus of this Article is on the power to declare war and the declaration of war in particular. As such, it does not discuss the Constitution's grant of other war and military powers to Congress. For a discussion of these various powers, See generally Saikrishna Prakash, The Separation and Overlap of War and Military Powers, 87 TEX. L. REV. (forthcoming 2008).
13. Many declarations from the founding era are found in two multi-volume collections. See generally 1-4 A GENERAL COLLECTION OF TREATYS, DECLARATIONS OF WAR, MANIFESTOS, AND OTHER PUBLICK PAPERS, RELATING TO PEACE AND WAR (2d ed., London, J.J. & P. Knapton 1732) [hereinafter A GENERAL COLLECTION OF TREATYS]; 1-6 NAVAL AND MILITARY MEMOIRS OF GREAT BRITAIN, FROM 1727 to 1783 (Robert Beatson ed., London, Longman, Hurst, Rees & Orme 1804).
14. See Prakash, "Declare War," supra note 11, at 50.
15. See, e.g.; EMMERICH DE VATTEL, THE LAW OF NATIONS, OR, PRINCIPLES OF THE LAW OF NATURE, APPLIED TO THE CONDUCT AND AFFAIRS OF NATIONS AND SOVEREIGNS 316 (London, G.G. & J. Robinson 1797); HUGO GROTIUS, ON THE LAW OF WAR AND PEACE 253 (Kessinger Publ'g 2004) (1625); 2 CORNELIUS VAN BYNKERSHOEK, QUAESTIONUM JURIS PUBLICI LIBRI Duo 18-20 (James Brown Scott ed., Tenney Frank trans., Clarendon Press 1930) (1737).
16. See GROTTUS, supra note 15, at 252.
17. See VATTEL, supra note 15, at 315-16.
18. See STEPHEN C. NEFF, WAR AND THE LAW OF NATIONS 104 (2005).
19. ALBERICO GENTILI, ON THE LAW OF WAR 133-35 (John C. Rolfe trans., Clarendon Press 1933) (1612).
20. See NEFF, supra note 18, at 104.
21. See id. at 104-09.
22. See infra Part II.
23. See supra text accompanying note 16.
24. See NEFF, supra note 18, at 104.
25. Id.
26. id. at 72-73.
27. Id. at 104-05.
28. See, e.g.; GROTIUS, supra note 15, at 253 (contrasting "absolute declarations" with conditional declarations); See also NEFF, supra note 18, at 105-06 (discussing conditional declarations).
29. JOSEPH CHITTY, A PRACTICAL TREATISE ON THE LAW OF NATIONS 68-69 (Boston, Bradford & Read 1812).
30. See id.
31. Letter from John Adams to Samuel Adams (Feb. 14, 1779), in 3 THE REVOLUTIONARY DIPLOMATIC CORRESPONDENCE OF THE UNITED STATES 47, 48 (Francis Wharton ed., Washington, Gov't Printing Office 1889). He added, "I suspect there will never be any other declaration of war. Yet there is in fact as complete a war as ever existed." Id.
32. Second Parliament of George II: Fourth Session (9 of 9, begins 12/5/1738), in 10 THE HISTORY AND PROCEEDINGS OF THE HOUSE OF COMMONS (London 1742) (proceedings of May 12, 1738), available at http://www.british-history.ac.uk/report.asp? compid=37805. Walpole is regarded as the first English Prime Minister. For a longer discussion of the initiation of warfare as a declaration of war, See generally Prakash, "Declare War," supra note 11.
33. See NEFF, supra note 18, at 109.
34. Id. at 109-10.
35. JAMES KENT, DISSERTATIONS: BEING THE PRELIMINARY PART OF a COURSE OF LAW LECTURES 66 (New York, G. Forman 1795).
36. See NEFF, supra note 18, at 72.
37. See JOSHUA E. LONDON, VICTORY IN TRIPOLI 95 (2005); See also MAX BOOT, THE SAVAGE WARS OF PEACE: SMALL WARS AND THE RISE OF AMERICAN POWER 13 (2002) (describing cutting down of a flag pole as a "traditional method of declaring war" in North Africa).
38. See George A. Bray, Scalping During the French and Indian War, EARLY AM. REV., Spring/Summer 1998, http://www.earlyamerica.com/review/1998/scalping.html.
39. See EZRA SAMPSON, THE YOUTH'S COMPANION, OR AN HISTORICAL DICTIONARY 398 (3d ed., Hudson, Nathan Elliot, Websters & Skinners 1816).
40. DEBATES OF THE HOUSE OF COMMONS 223 (Anchitell Grey ed., 1769) (debates of Mar. 14, 1678), available at http://www.british-history.ac.uk/report.asp?compid=40988. Another member said that the passing of the appropriations-the "Poll-Bill"-was "declaring War against the French King." Id. at 256 (debates of Mar. 18, 1678), available at http://www.british-history.ac.uk/report. asp?compid=40989.
41. Consider the concern of English members of Parliament that if they published Spanish responses to English complaints about Spanish predations on English shipping, it would appear as if the Parliament had declared war. One said that the publication of such complaints "would be looked upon by them as, and would really I think be, a Sort of Declaration of War." Second Parliament of George II: Fourth Session (5 of 9, begins 3/3/1738), in 10 THE HISTORY AND PROCEEDINGS OF THE HOUSE OF COMMONS (London 1742) (proceedings of Mar. 3, 1738), available at http://www.british-history.ac.uk/report.asp?compid=37801. Another said, "I think we ought not as yet to do any thing, that may look like a Declaration of War, or even like a Resolution to declare War." Id. The publication of the Spanish answers might look like a declaration of war because it would appear that Britain was attempting to justify a war against Spain by citing
42. Spanish recalcitrance, something typically done in a declaration of war. See NEFF, supra note 18, at 107.
43. WILLIAM SMYTH, LECTURES ON MODERN HISTORY 382 (Cambridge, J. & J.J. Deighton 1841) (describing statutorily authorized blockade of Boston as a declaration of war).
44. WILLIAM BELSHAM, MEMOIRS OF THE REIGN OF GEORGE III TO THE SESSION OF PARLIAMENT ENDING A.D. 1793, at 144 (3d ed., London, G.G & J. Robinson 1796). Americans agreed that the Prohibitory Act was an English declaration of war against America. See, e.g.; Letter from William Whipple to Joshua Brackett (Apr. 11, 1776), in 3 LETTERS OF DELEGATES TO CONGRESS 509, 509-10 (Paul H. Smith ed., 1978) (claiming that people of South Carolina regarded a late act of Parliament-presumably the Prohibitory Act-as a declaration of war).
45. See Letter from Joseph Hewes to Samuel Johnston (July 8, 1775), in 1 LETTERS OF DELEGATES TO CONGRESS, supra note 43, at 612, 613-14 (noting that Congress recently had published a declaration of war). Congress adopted The Declaration Setting Forth the Causes and Necessity of Taking Up Arms on July 6, 1775. See 2 JOURNALS OF THE CONTINENTAL CONGRESS 127-57 (Worthington Chauncery Ford ed., 1905).
46. See Yoo, The Continuation of Politics, supra note 11, at 246-47 (describing the Declaration as a declaration of war).
47. NEFF, supra note 18, at 109.
48. Letter from John Adams to the President of Congress (Dec. 18, 1780), in 4 REVOLUTIONARY DIPLOMATIC CORRESPONDENCE OF THE UNITED STATES, supra note 31, at 197 (quoting English remonstrance to Holland of Dec. 12, 1780).
49. ALEXANDER BEATSON, A VIEW OF THE ORIGIN AND CONDUCT OF THE WAR WITH TIPPOO SULTAUN 11 (London, W. Buhner & Co. 1800).
50. J.F. MAURICE, HOSTILITIES WITHOUT DECLARATION OF WAR vi-vii (London, W. Clowes & Sons 1883).
51. See, e.g.; THE ANNUAL REGISTER FOR 1779, at 411 (1780) (describing the announcement of the treaty as a "true declaration of war" on the part of the French).
52. See Letter from George Washington to the Continental Congress (May 12, 1778), available at http://rs6memory.loc.gov/cgibin/query/r?ammem/P?mgw: @field(DOCID+@lit(gwll03719:./temp/~ammem-8BWM::)) (noting that the notification was "conceived in terms of irony and derision, more degrading to the pride and dignity of Britain, than any thing she has ever experienced"). Interestingly, Washington went on to note that this was not a declaration of war. Id. He was right in the sense it was not a formal declaration of war, but many understood that it was an informal declaration of war nonetheless.
53. See 1 THE LETTERS OF RICHARD HENRY LEE 267, 423 (James Curtis Ballagh ed., 1911) (noting in July 12, 1778 letter to Francis Lightfoot Lee that France considered the King's message to Parliament as a declaration of war). See also Letter from John Adams to Samuel Adams (Feb. 14, 1779), in 3 REVOLUTIONARY DIPLOMATIC CORRESPONDENCE OF THE UNITED STATES, supra note 31, at 47, 48 (noting that the King's speech was a declaration of war).
54. THE CHRONOLOOIST OF THE PRESENT WAR 211-12 (2d ed., London, G.G. & J. Robinson 1796).
55. See MAURICE, supra note 49, at 6.
56. For a discussion of his recall, See Saikrishna Prakash & Michael Ramsey, The Executive Power over Foreign Affairs, 111 Yale L.J. 231, 314-15 (2001).
57. Mr. Adams's Speech (Mar. 3, 1806), in 3 THE MONTHLY ANTHOLOGY AND BOSTON REVIEW 266-80 (Boston, Munroe & Francis 1806).
58. Id. at 274.
59. Id.
60. Michael Ramsey and I have argued that the grant of executive power enables the President to dismiss (and Seek the recall) of foreign ambassadors to the United States. Prakash & Ramsey, supra note 55, at 313-15. I remain of the view that the President may dismiss foreign ambassadors but would add the proviso that the President cannot do so when the dismissal would be Seen as a declaration of war. I do not believe that the President may use his executive power to take actions that trench upon the congressional prerogative of declaring war. For a defense of the claim that only Congress can declare war, See generally Prakash, supra note 12.
61. See Suffolk Resolves, in 1 JOURNALS OF THE CONTINENTAL CONGRESS, supra note 44, at 32-37.
62. Id.
63. Id. at 35.
64. See Joseph Galloway's Statement on His Plan of Union, in 1 LETTERS OF DELEGATES TO CONGRESS, supra note 43, at 119, 120 (describing the Suffolk Resolves as a declaration of war).
65. See 5 THE HISTORY OF ENGLAND FROM THE REVOLUTION TO THE END OF THE AMERICAN WAR, AND PEACE OF VERSAILLES IN 1783, at 171-72 (1798) (noting that the Resolves claimed to be acting defensively only). In a previous piece, I argued that a nation does not declare war when all it does is fend off attacks. See Prakash, "Declare War," supra note 11, at 94-107.
66. See supra text accompanying note 29.
67. JACQUES NECKER, AN ESSAY ON THE TRUE PRINCIPLES OF THE EXECUTIVE POWER IN GREAT STATES 273 (London, G.G.J. & J. Robinson 1792).
68. GEORO FREDERICK VON MARTENS, A COMPENDIUM OF THE LAW OF NATIONS 282 (William Cobbett trans., London, Cobbett & Morgan 1802).
69. CHITTY, supra note 29, at 68.
70. WILLIAM DUANE, A MILITARY DICTIONARY 279 (Philadelphia, William Duane 1810); See also CHARLES JAMES, A NEW AND ENLARGED MILITARY DICTIONARY (2d ed., London, T. Egerton 1805) (stating entry for "acts of hostility"-defined as "certain overt acts ⋯ which tend to a declaration of war," and entry for "hostilities"- noting that "first act of hostility presupposes a declaration of war").
71. See NEFF, supra note 18, at 72.
72. See supra note 32 and accompanying text.
73. See Treaty of Amity and Commerce Between the United States of America and His Most Christian Majesty art. XX, Feb. 6, 1778, 8 Stat. 12, 24.
74. See Prakash, "Declare War," supra note 11, at 80-84.
75. See MARTENS, supra note 67, at 282.
76. See J.W. RICH, DECLARING WAR IN THE ROMAN REPUBLIC IN THE PERIOD OF TRANSMARINE EXPANSION 105-06 (1976) (discussing how "declare war" and its Roman counterpart, bellum indicere, could refer either to the decision to wage war or the announcement of that decision and how modern authors do not miss this distinction).
77. An Act Declaring War Between the United Kingdom of Great Britain and Ireland and the Dependencies Thereof, and the United States of America and Their Territories, ch. 102, 2 Stat. 755 (1812).
78. See infra text accompanying notes 189-91.
79. See VATTEL, supra note 15, at 316 (contrasting "pure and simple" declarations with conditional declarations).
80. See GROTIUS, supra note 15, at 253.
81. See, e.g.; Vattel, supra note 15, at 316.
82. See Prakash, "Declare War," supra note 11, at 74-75 (discussing how nations sometimes warned that they would treat innocent actions as a declaration of war).
83. Id.
84. See Ramsey, Textualism, supra note 11, at 1570-83 (describing various international law scholars' views on whether a formal declaration of war was necessary).
85. See id. at 1576, 1585-88 (describing the critique of Burlamaqui and how practice vitiated the claims of Vattel and others).
86. ROBERT WARD, AN ENQUIRY INTO THE MANNER IN WHICH THE DIFFERENT WARS OF EUROPE HAVE COMMENCED, DURING THE LAST TWO CENTURIES 11 (London, J. Butterworth & J. Stockdale 1805).
87. See Ramsey, Textualism, supra note 11, at 1576.
88. See, e.g.; Neutrality Proclamation (Apr. 22, 1793), in CHARLES MARION THOMAS, AMERICAN NEUTRALITY IN 1793, at 42, 42-43 (1931) (providing Washington's sense of the legal duties and prohibitions on American citizens in light of war in Europe).
89. See FRANK LAMBERT, THE BARBARY WARS: AMERICAN INDEPENDENCE IN THE ATLANTIC WORLD 16, 185 (2005) (describing how insurance premiums often rose by astronomical amounts during naval wars with the Barbary states).
90. See supra notes 31-34 and accompanying text.
91. See Bradley & Goldsmith, supra note 10, at 2062-63.
92. See VATTEL, supra note 15, at 399 (describing why all people, citizens and officials, needed authorization to wage war from a sovereign). Of course, a formal declaration of war was not required to grant authority to use military force. For instance, a monarch with the power to declare war might simply order his generals to wage war. Even in the absence of a formal declaration of war, the monarch's order was sufficient authorization to wage war.
93. See id.
94. Id. at 400.
95. NAVAL AND MILITARY MEMOIRS OF GREAT BRITAIN, FROM 1727 to 1783, supra note 13, at 340, 341-42. The Spanish formal declaration more tersely noted that "proper orders should be sent to all parts [of Spanish dominions]⋯ for acting offensively against the enemy." Id. at 342-43.
96. An Act for the Protection of the Commerce and Seaman of the United States, Against the Tripolitan Cruisers, ch. 4, § 2, 2 Stat. 129, 130 (1802).
97. See id.
98. NAVAL AND MILITARY MEMOIRS OF GREAT BRITAIN, FROM 1727 to 1783, supra note 13, at 44, 45.
99. Vattel says that any language found in formal declarations commanding citizens to attack the citizens of another was merely a relic of a bygone era. See VATTEL, supra note 15, at 400. It was customary, Vattel claims, to read these orders as authorizing no more than citizens to defend themselves. Id. But in the next paragraph, Vattel contradicts himself and claims that citizens can attack to reconquer their pacified city if they have a chance of success. Id. Whether commands to civilians to participate in the warfare are best understood as hortatory or were really meant to authorize such attacks is difficult to say. Still, a sovereign could make it clear that its command to attack was not merely hortatory. In that case, the citizenry apparently had a duty to wage war.
100. See Declaration of War for the King of Spain Against France (May 3, 1689), in 1 A GENERAL COLLECTION OF TREATYS, supra note 13, at 272, 273 (forbidding "Correspondence, Communication or Commerce" with the French); English Declaration of War Against France (May 7, 1689), in 1 A GENERAL COLLECTION OF TREATYS, supra note 13, at 281, 283 (forbidding communication or correspondence with French subjects); Spanish Declaration of War Against
101. England (Nov. 28, 1739), in 3 NAVAL AND MILITARY MEMOIRS OF GREAT BRITAIN, supra note 13, at 13, 13-15 (forbidding trade and commerce).
102. See Spanish Declaration of War Against England (Nov. 28, 1739), in 3 NAVAL AND MILITARY MEMOIRS OF GREAT BRITAIN, FROM 1727 to 1783, supra note 13, at 13, 14-16 (imposing record-keeping requirements and announcing inspections to ensure that new English artiles were not being sold).
103. See supra notes 97-98 and accompanying text.
104. See Declaration of War for the King of Spain Against France (May 3, 1689), in 1 A GENERAL COLLECTION OF TREATYS, supra note 13, at 272, 273 (ordering all Spanish nationals to leave France within fifteen days of the Declaration's publication).
105. See English Declaration of War Against France (May 7, 1689), in 1 A GENERAL COLLECTION OF TREATYS, supra note 13, at 281, 283 (noting that French subjects and their effects would be safe as long as they "demean themselves dutifully toward us").
106. An Act Respecting Alien Enemies, ch. 66, 1 Stat. 577 (1798).
107. See Report of the Committee of the Virginia House of Delegates, in 2 DOCUMENTS OF THE STATE SENATE OF NEW YORK 28, 33 (1833) (distinguishing the constitutionality of the infamous Alien Act from the Alien Enemies Act); See also ANDREW C. LENNER, THE FEDERAL PRINCIPLE IN AMERICAN POLITICS, 1790-1833, at 61 (2001) (noting that power to declare war justified Alien Enemies Act and citing Virginia state legislator for same proposition).
108. See An Act Respecting Alien Enemies, ch. 66, 1 Stat. 577 (1798).
109. The potential harshness of the Act may be overstated in that the Act did not actually require the President to deport enemy aliens. Still, the Act authorized this and other hard measures. Nothing said here is meant to suggest that the Alien Enemies Act was constitutional. In fact, the Act raised serious questions about the extent to which Congress could permit the President to incarcerate and deport in the absence of a meaningful judicial process. Moreover, the Act also raised nondelegation questions. My only point is that incarceration and deportation of enemy aliens was a typical feature of declarations of war, such that members who enacted the Alien Enemies Act likely believed Congress had the authority to issue the Act as part of its power to declare war.
110. See, e.g.; The English Declaration of War Against France (Mar. 29, 1744), in 3 NAVAL AND MILITARY MEMOIRS OF GREAT BRITAIN, FROM 1727 to 1783, supra note 13, at 45, 47 (noting that "whatsoever ship or vessel" shall transport soldiers, arms, and other contraband "shall be condemned as good and lawful prize").
111. There might be variations in these rules, as some nations tried to establish the principal of "free ships make free goods." Essentially, this rule sought to eliminate attacks on neutrals. Under this rule, what mattered was the ship that transported the goods. If the ship was owned by enemy nationals, it was a lawful prize. If the ship was not owned by enemy nationals, it was free to sail. See 3 GEORGE BANCROFT, HISTORY OF THE UNITED STATES 154 (1879). Nations at war might wish to seize and convert any ship that contained contraband goods going to or coming from the enemy, but neutrals did not like the resulting disruption of their trade and tried to push the principle of "free ships make free goods."
112. See VATTEL, supra note 15, at 214 (saying that violation by one party of treaty permits other party to declare treaty dissolved); id. at 215 (saying if recourse to war is taken, nations strip the other of all treaty rights); id. at 372 (saying treaties "are broke or annulled by a war" except for those provisions that regulate the declaration and conduct of war); See also Marks v. United States, 161 U.S. 297, 304 (1896) (noting that no declaration of war had abrogated treaty with
113. Indian tribe, thereby indicating that declarations traditionally could note that treaties were nullified).
114. An Act to Declare the Treaties Heretofore Concluded with France, No Longer Obligatory on the United States, ch. 67, 1 Stat. 578 (1798).
115. See Letter from Oliver Ellsworth et al. to John Marshall (Oct. 4, 1800), in 2 AMERICAN STATE PAPERS: FOREIGN RELATIONS 342, 342 (Washington, Gales & Seaton 1832) (statute declaring treaties void derived validity "from an exercise of the constitutional prerogative of declaring war").
116. Letter from Alexander Hamilton to George Washington (May 20, 1796), in 10 THE WORKS OF ALEXANDER HAMILTON 165, 168 (Henry Cabot Lodge ed., 1904). In a previous article, my colleague Michael Ramsey and I suggested that the President had a limited power to declare treaties terminated as part of the general grant of executive power because the treaty termination power was not assigned to Congress. See Prakash & Ramsey, supra note 55, at 265. Perhaps it is better to say that the power to terminate treaties is shared. Congress might declare treaties terminated in a declaration of war, and the President arguably has a similar power. But See Letter from Alexander Hamilton to George Washington (May 20, 1796), in 10 THE WORKS OF ALEXANDER HAMILTON, supra, at 168 (claiming that the President "is not competent" to annul treaties, "it being the province of Congress, by a declaration of war, or otherwise, in the proper cases, to annul the operation of treaties"); Report of the Minority, in 1 AMERICAN STATE PAPERS: MILITARY AFFAIRS, supra note 112, at 736, 742 (saying that the President must execute treaties until Congress revokes or annuls them).
117. See Ramsey, Textualism, supra note 11, at 1572-74.
118. Id. at 1579-88.
119. See id. at 1586 (noting that declarations set rules and served propaganda purposes); Yoo, The Continuation of Politics, supra note 11, at 206-07 (declarations set rules of intercourse and served as a vehicle for making a complaint).
120. To be sure, nonwritten declarations may have become widely known rather quickly; news of hostile actions that served as a declaration of war could have been spread by newspaper accounts and word of mouth. But the hostile acts themselves could not justify the declarant's conduct. Nor could they give notice of the rules of commerce and interaction.
121. See, e.g.; Declaration of War by France Against England and Holland, in A COLLECTION OF ADDRESSES TRANSMITTED BY CERTAIN ENGLISH CLUBS AND SOCIETIES TO THE NATIONAL CONVENTION OF FRANCE 157-61 (2d ed., London, J. Debrett 1793) [hereinafter A COLLECTION OF ADDRESSES] (describing how England and Holland had done all sorts of nefarious things to France)
122. See also Ramsey, Textualism, supra note 11, at 1587 (making same point).
123. See, e.g.; Extracts from the Discussion in the Sitting of the Convention of February 1, on the Declaration of War Against England and Holland, in A COLLECTION OF ADDRESSES, supra note 118, at 148, 161 (noting that English and Dutch acts of hostility were declarations of war).
124. See, e.g.; Declaration of War Against France (Mar. 9, 1689), in 1 A GENERAL COLLECTION OF TREATYS, supra note 13, at 256-67; Declaration of War Against France and Spain (May 8, 1702), in 1 A GENERAL COLLECTION OF TREATYS, supra note 13, at 422-30.
125. One might read formal declarations of war from the seventeenth and eighteenth centuries as being issued pursuant to multiple sources of authority. For instance, while declarations might have typically regulated the conduct of foreigners, one might argue that the power to regulate foreigners did not follow from the power to declare war but perhaps arose from a separate power to regulate foreigners. Hence, one might suppose that a declaration of war that regulated foreigners drew upon two different sources of authority. If one believes that declarations of war were issued pursuant to multiple sources of authority and not merely under the power to declare war, then one would have a more narrow understanding of the power to declare war. While theoretically possible, this argument Seems ultimately mistaken. Across nations, declarations of war contained similar language and fulfilled similar functions. It Seems unlikely that across all these nations, the entities possessing the power to declare war also enjoyed such powers as the ability to regulate commerce and the capacity to establish the rights of foreigners. Moreover, those writing statutes and resolutions often tend to write documents that draw upon one source of constitutional authority. In modern times, tax statutes rarely deal with postal roads; bankruptcy statutes do not grant letters of marque. Likewise, it Seems natural to suppose that declarations of war from the seventeenth and eighteenth centuries were understood to have been issued pursuant to the power to declare war. Finally, even if formal declarations of war were at one time understood as documents that implicitly relied upon multiple sources of authority (say, in the sixteenth or seventeenth centuries), over time the extremely close association that formal declarations had with the power to declare war might have led people to believe that all of the content found within declarations could have been derived from the generic power to declare war. In other words, longstanding practice might have led people to an expanded sense of the power to declare war.
126. See Declarations of War Against Bulgaria, Hungary and Rumania, chs. 323-25, 56 Stat. 307 (1942).
127. See, e.g.; An Act Further to Suspend the Commercial Intercourse Between the United States and France, and the Dependencies Thereof, ch. 2, 1 Stat. 613 (1799)
128. An Act to Suspend the Commercial Intercourse Between the United States and France, and the Dependencies Thereof, ch. 53, 1 Stat. 565-66 (1798)
129. An Act More Effectually to Protect the Commerce and Coasts of the United States, ch. 48, 1 Stat. 561 (1797). All were various statutes authorizing limited naval war against France.
130. See supra text accompanying notes 31-32.
131. See supra note 32 and accompanying text.
132. See, e.g.; The King of Spain's Declaration of War Against Great Britain (Nov. 28, 1739), in 3 NAVAL AND MILITARY MEMOIRS OF GREAT BRITAIN, FROM 1727 to 1783, supra note 13, at 13.
133. See, e.g.; 5 DEBATES OF THE HOUSE OF COMMONS, supra note 40, at 223-50 (proceedings of Mar. 14, 1678), available at http://www.british-history.ac.uk/report.asp?compid=40988 (member of Commons claiming that appropriation for war in France was a declaration of war).
134. There remains-the important question of whether an ex post congressional declaration can cure a war unconstitutionally begun by the President. Although war is especially important in the life of a nation, this matter parallels any situation where the executive might take unauthorized actions and Seek congressional approval after the fact. For instance, the Executive might expend funds without an appropriation and Seek congressional absolution and support after the fact. For an argument that the Korean War was authorized by Congress after the fact, See The Constitutional Roles of Congress and the President in Declaring and Waging War: Hearings Before the S. Comm. on the Judiciary, 101st Cong. 10-12 (1991) (statement of Harold H. Koh).
135. I am drawing upon Cato the Elder's famous phrase "Delenda est Cathago"-Carthage must be destroyed. See Charles Van Doren, Carthage, in AFRICANA: THE ENCYCLOPEDIA OF THE AFRICAN AND AFRICAN-AMERICAN EXPERIENCE 387, 388 (Henry Louis Gates & Anthony Appiah eds., 2003).
136. See U.S. CONST, art. II, § 1, cl. 8 ("Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:-'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'").
137. For a defense of the claim that only Congress can declare war, See Prakash, supra note 12.
138. See generally Sidak, supra note 8 (arguing that Congress should authorize war only through formal declaration).
139. For a critique of the claim that Congress ought to or must use the words "declare war" in order to authorize war, See Koh, supra note 6, at 125-26.
140. See supra note 121 and accompanying text.
141. See supra note 28 and accompanying text.
142. In some respects, the Authorization for Use of Military Force Against Iraq, Pub. L. No. 107-243, 116 Stat. 1498 (2002), can be Seen as giving Iraq advanced warning of impending warfare. To be sure, the resolution did not expressly promise warfare, but given the President's publicly stated position, the international community undoubtedly surmised that President Bush was going to use the military authority delegated by the Act to wage war against Iraq.
143. See id.; Authorization for Use of Military Force Against Iraq, Pub. L. 102-1, 105 Stat. 3 (1991).
144. See An Act Further to Suspend the Commercial Intercourse Between the United States and France, ch. 2, § 1,1 Stat. 613 (1799). A draft of the Act reads very much like the propaganda section of a declaration of war, reciting all the instances of French misconduct as justification for the declaration of nullity. See 8 ANNALS OF CONG. 2035-37 (Washington, Gales & Seaton 1851).
145. See, e.g.; An Act for the Protection of the Commerce and Seamen of the United States, Against the Tripolitan Cruisers, ch. 4, 2 Stat. 129, 129-30 (1802) (authorizing naval war against Tripoli).
146. For instance, American vessels were authorized to attack French armed vessels on the high seas and in American waters. See An Act to Further Protect the Commerce of the United States, ch. 68, § 1, 1 Stat. 578 (1798). American vessels apparently could not attack French armed vessels in the waters of other nations.
147. Although time-constrained declarations of war are apparently unprecedented, there is no reason to think that authority to use military force must be granted for an indefinite period of time. Like any other authority, it may be granted for a limited time.
148. See, e.g.; An Act to Suspend the Commercial Intercourse Between the United States & France, ch. 53, §5, 1 Stat. 565, 566 (1798) (providing that if France should halt her predations on U.S. shipping, the statute's restraints on commerce and the ability to seize French ships would lapse).
149. See supra text accompanying notes 101-03.
150. If modern Congress enacted new rules, they likely would modify the Alien Enemies Act, which remains in force. See 50 U.S.C. §§ 21-24 (2000).
151. See supra Part II.E.
152. See, e.g.; An Act Declaring that War Exists Between the United States of America and the Kingdom of Spain, ch. 189, 30 Stat. 364 (1898) ("direct[ing]" the President to wage war); Joint Resolution Declaring that a State of War Exists Between the Imperial Government of Japan and the Government and the People of the United States, ch. 561, 55 Stat. 795 (1941) (same).
153. U.S. CONST, art. I, § 1 (providing that Congress is composed of the House and the Senate and implying that Congress acts only when both act together).
154. See JENNIFER K. ELSEA & RICHARD F. GRIMMETT, CONG. RESEARCH SERV., DECLARATIONS OF WAR AND AUTHORIZATIONS FOR THE USE OF MILITARY FORCE: HISTORICAL BACKGROUND AND LEGAL IMPLICATIONS 2 (2007), available at http://fpc.state.gov/documents/organization/82969.pdf (noting that in the nineteenth century, declarations were styled as bills, while in the twentieth century, formal declarations were styled as joint resolutions).
155. St. GEORGE TUCKER, BLACKSTONE'S COMMENTARIES, App. 269-72 (1803) (noting that the President can veto but cannot make a declaration of war). But See William Michael Treanor, Fame, the Founding, and the Power to Declare War, 82 CORNELL L. REV. 695, 724-29 (1997) (arguing that declarations need not be presented to the President).
156. U.S. CONST, art. I, § 7, cl. 3 ("Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill." (emphasis added)).
157. See Notes of Rufus King and Nathaniel Gorham, in 4 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 186, 190 (John P. Kaminski & Gaspare J. Saladino eds., 1997) (noting that the Constitution "requires the joint consent of both branches of Congrss [sic] together with ye. [sic] of the Presidt. [sic] to declare war").
158. See HARRY L. COLES, THE WAR OF 1812, at 25 (Daniel J. Boorstin ed., 1965). 153 KENT, supra note 35, at 66.
159. NECKER, supra note 66, at 271 (noting that while monarchs could declare war by commencing it, assemblies would have a debate to declare war and then commence it afterwards, giving the enemy a chance to learn of their decision well before the declarant started waging war).
160. See U.S. CONST, art. I, § 5, cl. 3 (providing that each chamber publish a journal but that members may keep some portions of their proceedings secret).
161. See FRANK A. UPDYKE, THE DIPLOMACY OF THE WAR OF 1812, at 127, 130 (1915).
162. See WALTER R. BORNEMAN, 1812: THE WAR THAT FORGED A NATION 52 (2004).
163. See Michael Ramsey, Presidential Declarations of War, 37 U.C. DAVIS L. REV. 321, 325 (2003) (discussing practice of congressional delegation to President).
164. See U.S. CONST, art II, § 3, cl. 4 ("[H]e shall take Care that the Laws be faithfully executed.").
165. See, e.g.; An Act for the Protection of the Commerce and Seamen of the United States, Against the Tripolitan Cruisers, ch. 4, § 2, 2 Stat. 129, 130 (1802) (recognizing that a state of war exists and authorizing the use of the Navy against Tripoli); An Act Declaring War Between the United Kingdom of Great Britain and Ireland and the Dependencies Thereof, and the United States of America and Their Territories, ch. 102, 2 Stat. 755 (1812) (declaring that war exists and authorizing President to use armed forces to wage war).
166. See Brown v. United States, 12 U.S. (8 Cranch) 110, 153 (1814) (Story, J., dissenting).
167. See, e.g.; An Act Declaring that War Exists Between the United States of America nd the Kingdom of Spain, ch. 189, 30 Stat. 364 (1898) (directing the President to wage war).
168. See Letter from Henry Knox to William Blount (Dec. 29, 1794), in 4 AMERICAN STATE PAPERS, supra note 112, at 634.
169. See id., in 4 AMERICAN STATE PAPERS, supra note 112, at 634, 635.
170. See UPDYKE, supra note 156, at 136-37.
171. See generally RAMSEY, THE C ONSTITUTION'S TEXT, supra note 11, at 174-93 (describing why the President may make international agreements that do not constitute treaties).
172. The WORKS OF SIR WILLIAM TEMPLE 255 (Jonathan Swift ed, London, S. Hamilton 1757).
173. The Second Parliament of George II: Fourth Session (9 of 9, begins 12/5/1738), in 10 THE HISTORY AND PROCEEDINGS OF THE HOUSE OF COMMONS, supra note 32.
174. Letter from George Washington to Robert Dinwiddie (Aug. 14,1756), in George Washington Papers at the Library of Congress, 1741-1799: Series 2 Letterbooks, available at http://rs6.loc.gov/ammem/gwhtml/gwseries2.html (for a scan of the original document, follow "Letterbook 3"; then enter "329" in the text box next to the "Turn to image" button and click this button).
175. See supra note 140.
176. An Act to Provide an Additional Armament for the Further Protection of the Trade of the United States, ch. 31, § 1, 1 Stat. 552 (1798).
177. ANNALS OF CONG., supra note 138, at 1519.
178. An Act to Declare the Treaties Heretofore Concluded with France, No Longer Obligatory on the United States, ch. 67, 1 Stat. 578 (1798). While discussing this Act, members of Congress understood that the power to declare the treaties void arose from the power to declare war. Indeed, several mentioned that Congress ought to declare war, and the nullity of the treaties would follow as a matter of course. Others said that declaring the treaties void was the same as a declaration of war. See generally 8 ANNALS OF CONG., supra note 138, at 2116-27.
179. Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (approved by both houses of Congress on September 14, 2001, and signed by the President on September 18, 2001); Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, § 3(a), 116 Stat. 1498 (2002) (resolving that "the President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to ⋯ defend the national security of the United States against the continuing threat posed by Iraq; and ⋯ enforce all relevant United Nations Security Council resolutions").
180. An Act Respecting Alien Enemies, ch. 66, § 1,1 Stat. 577 (1798).
181. See id. The delegation of rulemaking authority to the President was controversial at the timé. There did not Seem to be any doubt that Congress might regulate alien enemies. See generally 8 ANNALS OF CONG., supra note 138, at 1786-92, 1793-96.
182. See 50 U.S.C. §§ 21-24 (2000).
183. Not every statutory provision that turns on the existence of a declaration of war should be considered an exercise of Congress's power to declare war. For instance, Congress's decision that the President can sell national defense stockpile material during a declared war, See 50 U.S.C § 98f(a)(2), is more appropriately understood as an exercise of Congress's power to dispose of United States property.
184. The text of the default declaration establishes its sweep. If a default declaration speaks of limiting civil liberties or expanding presidential power should Congress "declare war," there will be a question of whether the statute only references a formal declaration, or whether it also encompasses informal declarations triggering the statutory provision. For instance, the Enemy Aliens Act grants the President authority to detain enemy aliens whenever either a "declared war" exists between the United States and foreign nations, or when the nation has been invaded or is under threat of invasion. See 50 U.S.C. § 21. This text suggests that Congress meant to incorporate only the formal understanding of declarations of war because there would have been no need to speak of invasions separately if the broader understanding of declarations of war had been contemplated.
185. But other statutory provisions that turn on whether someone or something has "declared war" may incorporate the broader definition of "declare war." For instance, one can imagine that the suspension of the statutes of limitation for commencing various contract actions turns on whether the Congress has declared war in the broad sense, and not merely on whether the Congress has formally declared war. See 28 U.S.C. § 2416(d) (2000). For a discussion of how some early treaties used "declare war" and "declarations of war" in the broad senses and others used them more narrowly, See Prakash, "Declare War," supra note 11, at 83 n.196 and accompanying text.
186. See Ely, supra note 5, at 888 n.41 (claiming that since World War II, declarations of war have essentially vanished, worldwide).
187. See, e.g.; Turner, supra note 7, at 537 (claiming that the power to declare war is an anachronism).
188. The United States has issued eleven declarations of war in five conflicts-the War of 1812, the Mexican American War of 1846, the Spanish-American War of 1898, World War I, and World War II. See GRIMMETT, supra note 4, at 15-39. Six of these declarations occurred in World War II. Id.
189. See, e.g.; Ron Paul, U.S. Congressman, Is Congress Relevant with Regards to War?, Speech Before the U.S. House of Representatives (Oct. 3, 2002), available at www.house.gov/paul/congrec/congrec2002/crl00302.htm (claiming that the then-impending failure to declare war on Iraq was a "circumvention" of the Constitution).
190. See, e.g.; Bradley & Goldsmith, supra note 10, at 2063 (claiming that Congress passed a statute declaring war against Mexico).
191. An Act Providing for the Prosecution of the Existing War Between the United States and the Republic of Mexico, ch. 16, 9 Stat. 9 (1846).
192. See, e.g.; An Act Further to Protect the Commerce of the United States, ch. 68, 1 Stat. 578 (1798).
193. See ALEXANDER DECONDE, THE QUASI-WAR: THE POLITICS AND DIPLOMACY OF THE UNDECLARED WAR WITH FRANCE 1797-1801, at 281-82 (1966); 1 NAVAL DOCUMENTS RELATED TO THE QUASI-WAR BETWEEN THE UNITED STATES AND FRANCE 194, 204, 452, 454, 501 (1935) (offering repeated statements by the Navy Secretary that United States was at war with French armed vessels only); 1 Op. Att'y Gen. 84 (1798) (opinion of Charles Lee) (arguing that France and America were waging an "actual maritime war"); Letter from Oliver Ellsworth et al. to John Marshall (Oct. 4, 1800), in 2 AMERICAN STATE PAPERS: FOREIGN RELATIONS, supra note 112, at 342, 342-43 (describing America as at war with France).
194. DECONDE, supra note 187, at 281-82.
195. An Act for the Protection of the Commerce and Seamen of the United States, Against the Tripolitan Cruisers, ch. 4, 2 Stat. 129 (1802).
196. Id. § 2, 2 Stat, at 130.
197. See An Act for the Protection of the Commerce of the United States Against the Algerine Cruisers, ch. 90, § 2, 3 Stat. 230 (1815). Recently, Peter Irons has suggested that Congress declined to declare war against Algeria after being requested to do so by Madison. Instead, Congress enacted "blank-check" authority to use the navy as the President saw fit. See PETER IRONS, WAR POWERS: HOW THE IMPERIAL PRESIDENCY HIJACKED THE CONSTITUTION 31 (2005). But Irons is wrong on many fronts. Madison merely asked Congress to recognize that a state of war existed and authorize the use of force. See Message from the President of the United States (Feb. 23, 1815), in 5 JOURNAL OF THE SENATE OF THE UNITED STATES OF AMERICA 687 (Washington, Gales & Seaton 1821). Moreover, the Congress complied with his request because the statute it passed authorized the President to order hostilities as the "state of war will justify." See § 2, 3 Stat, at 230. Finally, Irons is mistaken in implying that declarations of war cannot likewise have a blank- check aspect to them. In fact, the 1812 Declaration of War was a bigger blank check because it authorized the President to use the army, militia, and the navy, while the Algerian statute only authorized the navy. Many (but not all) U.S. declarations of war, whether formal or informal, have had something of a blank-check aspect to them. But as this paper has argued, that quality arises from a congressional choice not to exercise the declare-war power to put constraints on presidential conduct of a war.
198. See 2 ABIEL Holmes, ANNALS OF AMERICA 419 (Cambridge, Hilliard, Metcalf & Co. 1829) (claiming that Congress declared war in June of 1801); 33 Annals of Cong. 929 (Washington, Gales & Seaton 1855) (comments by John Tyler that Congress declared war after Tripoli attacked); GREGORY FREMONT-BARNES, THE WARS OF THE BARBARY PIRATES 77 (2006) (noting that President James Madison told the Dey of Algeria that the United State had declared war); J. FRANKLIN JAMESON, DICTIONARY OF UNITED STATES HISTORY 1492-1897, at 16 (Boston, Puritan Publ'g 1897) (claiming that Congress declared war on Algeria).
199. But See Turner, supra note 7, at 537 (arguing that the declare-war power is an anachronism).