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

by Brien Hallett

Overview

Declaring War directly challenges the 200-year-old belief that the 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 the Congress to declare war. This book 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 reorganization 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 to investigate why and how a "public announcement" is essential for the social construction of both war and the rule of law.

Product Details

ISBN-13:	9781107608573
Publisher:	Cambridge University Press
Publication date:	08/13/2012
Edition description:	New Edition
Pages:	287
Product dimensions:	5.98(w) x 9.37(h) x 0.55(d)

About the Author

Brien Hallett is an Associate Professor at the Matsunaga Institute for Peace at the University of Hawaii, Manoa, where he teaches courses in peace and conflict resolution, with a special interest in the thought of Gandhi, Martin Luther King and Vaclav Havel. His primary research interest is the declaration of war and the historical, legal, constitutional, moral and philosophical issues that surround it. Hallett is the author of The Lost Art of Declaring War (1998) and several encyclopedia articles.

Table of Contents

1. A constitutional tyranny and presidential dictatorship; Part I. What Is the History?: 2. How the president declares war: the War of 1812; 3. Why the Congress ought not declare war: the Spanish-American War, 1898; 4. A plan for acquiescence: the War Powers Resolution of 1973; Part II. What Is a Declaration of War?: 5. Declaring and commanding: forms, functions, and relationships; 6. Lawful and unlawful declarations of war: quantity over quality; 7. Six possible structures; Part III. What Are the Solutions?: 8. A constitutional amendment; 9. A congressional work-around; Part IV. What Is the Theory?: 10. Bellum justum et pium: the rule of law and roman piety; 11. The rule of law: searching for ontology; 12. Senator Malcolm Wallop; Appendix I. Five congressional declarations of war and one appropriations act; Appendix II. The federative powers in parliamentary governments.