The relational conception of war powers

The Limits of Constitutional Democracy

Volumn , Issue , 2010, Pages 168-193

  Zeisberg, Mariah ^a  

^a UNIVERSITY OF MICHIGAN   (United States)

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EID: 84859559847     PISSN: None     EISSN: None     Source Type: Book    
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References (51)

1. Michael D. Ramsey, The Constitution's Text in Foreign Affairs (Cambridge: Harvard University Press, 2007), chap. 11.
2. For congressional partisans, see John Hart Ely, "The American War in Indochina, Part II: The Unconstitutionality of the War They Didn't Tell Us About," Stanford Law Review 42, no. 5 (1990): 1093-1148.
3. Michael D. Ramsey, The Constitution's Text in Foreign Affairs (Cambridge: Harvard University Press, 2007).
4. Louis Fisher, Presidential War Power (Lawrence: University Press of Kansas, 2004). Partisans of the Presidency include John Yoo, "War and the Constitutional Text," University of Chicago Law Review, no. 69 (2002): 1639-84.
5. Phillip Bobbitt, "War Powers: An Essay on John Hart Ely's War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath," Michigan Law Review 92 (1994): 1364-1400. Because the U.S. Constitution's allocation of war authority is vague, the framers' dilemma about whether the best constitutional allocation of war powers is strict, explicit, and highly procedural replicates itself at the level of constitutional interpretation.
6. See Walter F. Murphy, Constitutional Democracy: Creating and Maintaining aJust Political Order (Baltimore: Johns Hopkins University Press, 2007), chap. 14, on the relationship between interpretation and maintenance.
7. Larry Alexander and Frederick Schauer, "On Extrajudicial Constitutional Interpretation," Harvard Law Review 110, no. 7 (1997): 1359-87.
8. See Edward S. Corwin, The President: Office and Powers 1787-1984, 5th ed. (New York: New York University Press, 1984), and Cecil V. Crabb and Pat M. Holt, Invitation to Struggle: Congress, the President and Foreign Policy (Washington, DC: Congressional Quarterly Press, 1980), for a characterization of the Constitution's allocation of foreign policy powers as an "invitation to struggle." The relational account accepts this characterization of the Constitution's text and seeks to develop normative content for guiding the branches in their interpretive claims given this characteristic of the constitutional order.
9. See Jeffrey K. Tulis, "Deliberation between Institutions," in Debating Deliberative Democracy, ed. James S. Fishkin and Peter Laslett, Philosophy, Politics and Society 7 (Oxford: Blackwell, 2003), 200-211.
10. Aaron L. Friedberg, In the Shadow of the Garrison State: America's Anti-statism and Its Cold War Grand Strategy (Princeton: Princeton University Press, 2000).
11. Henry Kissinger, Ending the Vietnam War: A History of America's Involvement in and Extrication from the Vietnam War (New York: Simon and Schuster, 2003).
12. See Murphy, Constitutional Democracy, 463.
13. For an argument that the choice of a blockade was a response to domestic political pressures, see Fen Osler Hampson, "The Divided Decision-Maker: American Domestic Politics and the Cuban Crises," International Security 9, no. 3 (1984): 130-65.
14. Richard M. Nixon, "Address to the Nation on the Situation in Southeast Asia," April 30, 1970, at Miller Center of Public Affairs Presidential Speech Archive (University of Virginia, The Scripps Library), http://millercenter.org/scripps/archive/speeches (accessed October 17, 2009).
15. See William D. Rogers, "The Constitutionality of the Cambodian Incursion," American Journal of International Law 65, no. 1 (1971): 26-37, who argued that the incursion was unconstitutional because the Gulf of Tonkin resolution allowed the President only to repel "armed attack," not to disrupt supply lines. The resolution also allowed the president to use armed force to aid a SEATO member or protocol state requesting assistance, but Cambodia had not requested assistance in 1969. Rogers believes that the case of the Cambodian incursion thus rests fully on whether the president has such powers under his sole authority as commander in chief.
16. Ely, "American War in Indochina, Part II.".
17. See Ely's response to Bork's claim that such action would require additional legislative approval on the grounds that it would involve "a decision to initiate a major war." John Hart Ely, "The American War in Indochina, Part I: The (Troubled) Constitutionality of the War They Told Us About," Stanford Law Review 42, no. 4 (1990): 905 n. 125.
18. Robert Bork, "Comments on Legality of U.S. Action in Cambodia," American Journal of International Law 65, no. 1 (1971): 79-81.
19. John Hart Ely, War and Responsibility (Princeton: Princeton University Press, 1996), 222 n. 20.
20. Arnold H. Horelick, "The Cuban Missile Crisis: An Analysis of Soviet Calculations and Behavior," World Politics 16, no. 3 (April 1964): 363-89.
21. John F. Kennedy, "News Conference 43," September 13, 1962, at John F. Kennedy Presidential Library & Museum: Historical Resources, http://www.jfklibrary.org/Historical+Resources/Archives/Reference+Desk/Press+Conferences/003POF05Pressconference43_09131962.htm (accessed October 17, 2009).
22. Yoo, "War and the Constitutional Text." See especially his assertions that, because of the paucity of judicial opinions on this question, past practice determines constitutionality (24). Although Yoo criticizes "legalistic" accounts of war powers, the posing of a sharp dichotomy between constitutional determinations resolved by judges and zones of pure political discretion is a core characteristic of the settlement view.
23. Peter Trubowitz, Defining the National Interest: Conflict and Change in American Foreign Policy (Chicago: University of Chicago Press, 1998).
24. John Locke, The Second Treatise of Civil Government (1690).
25. See Stephen L. Elkin, Reconstructing the Commercial Republic: Constitutional Design after Madison (Chicago: University of Chicago Press, 2006), on the general appeal of specifying values in terms of institutional content for constitutional thinking.
26. Louis Fisher, Presidential War Power (Lawrence: University Press of Kansas, 2004), 111, citing U.S. President (Kennedy), "The President's News Conference of September 13, 1962," Papers of the Presidents of the United States, John F. Kennedy, 1962 (Washington, DC: GPO, 1963), 679.
27. U.S. Congress, Congressional Record, 87th Cong., 2nd sess., Vol. 108, No. 170, September 20, 1962, pp. 18892-951.
28. U.S. Congress, Congressional Record, 87th Cong., 2nd sess., Vol. 108, No. 174, September 26, 1962, pp. 19702-53.
29. Philip J. Briggs, Making American Foreign Policy: President-Congress Relations from the Second World War to the Post Cold War Era (Lanham, MD: Rowman and Littlefield, 1994).
30. Friedberg, Shadow.
31. Robert David Johnson, Congress and the Cold War (Cambridge: Cambridge University Press, 2006).
32. Nelson Polsby, Political Innovation in America (New Haven: Yale University Press, 1984).
33. David M. Barrett, CIA and Congress: The Untold Story from Truman to Kennedy (Lawrence: University Press of Kansas, 2005), 2.
34. Southeast Asia Resolution, Pub. L. No. 88-408, 78 Stat. 384 (1964) (also known as the Tonkin Gulf Resolution).
35. Randall B. Woods, J. William Fulbright, Vietnam, and the Search for a Cold War Policy (New York: Cambridge University Press, 1998), 165-70.
36. David W. Levy, The Debate over Vietnam (Baltimore: Johns Hopkins University Press, 1991), 51.
37. Scott Shane, "Vietnam War Intelligence 'Deliberately Skewed,' Secret Study Says," New York Times, December 2, 2005.
38. Levy, Debate over Vietnam, 146.
39. Richard M. Nixon, "Address to the Nation on the War in Vietnam," November 3, 1969, at Miller Center of Public Affairs Presidential Speech Archive (University of Virginia, The Scripps Library), http://millercenter.org/scripps/archive/speeches/detail/3873 (accessed October 17, 2009).
40. Presupposing that that consensus is itself constitutionally authoritative.
41. For the purposes of this essay, I presume that it is. But it is important to note that, insofar as the Cold War consensus can create authority for independent executive war action, it is highly appropriate to evaluate the construction of the Cold War security consensus itself through the lens of the relational conception of constitutional war authority.
42. On the value of privacy for generating high-quality conclusions that include all available private information, see David Stasavage, "Polarization and Publicity: Rethinking the Benefits of Deliberative Democracy," Journal of Politics 69, no. 1 (2007): 59-72, and Ellen E. Meade and David Stasavage, "Publicity of Debate and the Incentive to Dissent: Evidence from the US Federal Reserve," Economic Journal 118, no. 528 (2008): 695-717.
43. Kissinger, Vietnam, 66.
44. Seymour M. Hersh, "Kissinger and Nixon in the White House," Atlantic Monthly, May 1982.
45. Nixon, "Address to the Nation on the Situation in Southeast Asia," April 30, 1970.
46. William Shawcross, Sideshow: Kissinger, Nixon, and the Destruction of Cambodia (New York: Simon and Schuster, 1979), 28.
47. Johnson, Congress and the Cold War, 187.
48. Eric A. Posner and Adrian Vermeule, "Accommodating Emergencies," in The Constitution in Wartime: Beyond Alarmism and Complacency, ed. Mark Tushnet (Durham: Duke University Press, 2005), 55-92.
49. Kissinger, Vietnam, 514-16.
50. Robert F. Kennedy, Thirteen Days: A Memoir of the Cuban Missile Crisis (New York: W. W. Norton, 1969), 67.
51. Michael D. Ramsey, "Presidential Originalism?" Boston University Law Review 88, no. 2 (2008): 353-73.