Parry, John Parry at LAW.PITT.EDU
Mon Nov 4 15:29:44 PST 2002

I think it's pretty clear that at a functional level the authorization to
use force has generally the same effect as a declaration of war.  We've
simply developed a different way of committing U.S. troops to large-scale
conflicts.  Whether this method is constitutional is another question.  In
many ways, this discussion tracks the debate between Ackerman/Golove and
Tribe on the use of congressional executive agreements in place of treaties
(Ackerman/Golove say no problem, historical moments, etc., while Tribe says
that he takes text and structure seriously).  My sense in both debates is
that if Congress and the President have worked things out and Congress has
actually acted in some way to approve the use of force, then the courts
should be extremely reluctant to upset the deal (but then, I disagree with
the result in Chadha, too, on similar grounds).  Moreover, having some
congressional authorization, even if short of a formal declaration, seems
far preferable to me than congressional silence in the face of executive use
of force overseas.  (On the other hand, to some extent the president coerces
authorization by claiming the right to use force without authorization, with
the veiled threat to retaliate politically against a congress that does not
support use of force.)

As for whether a declaration gives more power to restrict civil liberties,
I'd think that politics and the perceived nature of the conflict are more
important than a formal declaration.  Sometimes the executive branch
believes it needs to restrict liberty (or, more cynically, thinks it can get
away with restricting liberty) because of the passions unleashed by the
conflict or because the stakes are so high.  I don't remember huge civil
liberties violations being linked to every declared war, but some undeclared
wars have been accompanied by serious infringements on civil liberties.

Professor John T. Parry

University of Pittsburgh School of Law

3900 Forbes Avenue

Pittsburgh, PA  15206


-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at MAIL.LAW.UCLA.EDU]
Sent: Monday, November 04, 2002 2:45 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: War

    I'm not sure to what extent constitutional rights operate differently
during a "state of war" than otherwise; that, I think, is part of what we're

    But if the claim is that this different treatment, such as it is, is
triggered only by a declaration of war, I just don't know of any authority
for this proposition.  I've looked around, and as best I could tell,
doctrines that relate to war generally turn on whether we are in a state of
actual war, and not on whether a war has been declared.

    This of course speaks to the understanding as it has been promulgated
since the Framing, though the earliest of these cases seem to date back to
shortly after the Framing.  I am most certainly not remotely an expert on
the original meaning of the declaration of war clause, and I'd love to hear
what those who are experts have to say about it.  My very tentative sense is
that the Framers understood that a state of war could be started either by a
declaration of war by the U.S., *or* by an attack on the U.S. by others,
though I might well be mistaken.  In any event, I am not persuaded (or at
least yet persuaded) by Cornell's initial claim that "the framers . . .
requir[ed] a formal declaration of war" before any war-related doctrines
(whatever they might be) would kick in.

    Finally, all this does not resolve whether a declaration of war requires
the terms "declare war" or whether authorization of the use of military
force is enough.  If it is enough, then we *are* in an adequately declared


Cornell Clayton writes:

But, if the point is that Congress has authorized the use of military force
against Afghanistan or Iraq (or even whether we accurately describe the
conflict as a "war" in the common use of that term), I agree.  I agree with
Biden (and Eugene) that Congress may recognize a threat to national security
and authorize the use of military force without formally declaring war.

But I think the question is whether a "state of war" exists for
constitutional purposes, and whether the government may draw upon its
inherent, emergency prerogative powers permitting suspension of
constitutional rights and other constitutional restraints on the executive
during such a period (I use the language of Lockean constitutional theory
here because I believe that is the theoretical justification underlying the
Court's decisions in cases such as The Prize Cases, Schenck, Korematsu, and
probably Quirin).

My argument is that by formally declaring war, Congress explicitly invoked
this authority during such conflicts as the War of 1812, WWI, and WWII.  And
that is why the Court properly adopted a more deferential posture to
assertions of executive power during these conflicts.  On the other hand,
Congress did not specifically invoke such authority during the Korean war or
the Vietnam war (even though Congress granted the executive sweeping powers
to use force abroad in these "wars"). This I think is the major reason why
the Court was less willing to defer to executive branch assertions of
authority during these conflicts, especially when those assertions involved
the constitutional rights of U.S. citizens (i.e. Youngstown, NY Times,

Now, if I'm right about this, the fact that Bush has not asked for (nor do I
think it would obtain) a formal declaration of war, should carry a lot of
weight in terms of the application of wartime precedents and doctrines and
how deferential courts should be to its assertions of authority.  Given the
nature of congressional authorization in the current conflict, I think its
more appropriate to look to Court decisions during the Korean and Vietnam
war eras to analyze the scope of executive authority by the Bush
administration, rather than those renderedduring periods when war was
formally declared.

But, if I'm not right about this, I'm curious what difference Eugene thinks
it makes to have a congressional declaration of war.  My original point was
"that the Constitution's text, structure, and intent, was to require
Congress to make the final decision regarding who the nation is at war
with."  Do you agree that this was (is) the purpose of the declaration
clause in Art I, sec. 8?


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