Declaration of War

[James Maule]

For a declaration of war to be constitutional, must it be against a recognized nation-state? One of the joint resolutions is a declaration of war against terrorism (and how is that different from a declaration of war against poverty or drugs?). The "war against drugs" doesn't authorize invasion of countries that "harbor" drug wholesalers.

I would guess (and it is only a guess) that a declaration of war must be against a nation-state or, perhaps, against a foreign organization or nonresident alien. For example, after Italy surrendered in WW2, hostilities continued against the "structure" that Mussolini headed, propped up by Germans. There was no amendment of the declaration of war to remove Italy and add whatever it was that Mussolini's structure was called. As a practical matter, a conclusion that a declaration of war must be against a nation-state (putting aside issues of recognition of governments, etc) would make it too easy for hostile enemies to hide. On the other hand, declarations of war against concepts doesn't seem to be useful (and those "wars on [concept]" hyperboles of the 60s and 70s have perhaps disguised the realities of war].

In 1941 war was not declared against totalitarianism, anti-Semitism, blitzkrieg or terrorism (and if people thing terrorism is new or "different" from war or not part of war, go back and look at the film of Dutch and Belgian refugees being strafed and gunned down by German planes in an effort to slow the advance of British and French forces so that the Germans weren't caught in the Dutch lowlands where the cutting of the dikes would have stopped them). In 1941, war was declared against nation states.





Jim Maule
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
http://vls.law.vill.edu/prof/maule
President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com)
Publisher, JEMBook Publishing Co. (www.jembook.com)
Maule Family Archivist & Genealogist (www.maulefamily.com)




>>> Deliotb at AOL.COM 09/14/01 12:25AM >>>
A couple of days ago, there were rumblings about a declaration of war.  Is
there any chance that we will for once have a war that is declared through
the proper constitutional mechanism?

David E. Bernstein
Associate Professor
George Mason University
School of Law
(703) 993-8089
Home Page: http://mason.gmu.edu/~dbernste
Only One Place of Redress Home Page:
http://mason.gmu.edu/~dbernste/Redress.html