Declaring war : Congress, the president, and what the constitution does not say / Brien Hallett, University of Hawaiʻi-Manoa, Matsunaga Institute of Peace.
2012
KF4941 .H35 2012 (Map It)
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Author
Title
Declaring war : Congress, the president, and what the constitution does not say / Brien Hallett, University of Hawaiʻi-Manoa, Matsunaga Institute of Peace.
Published
Cambridge : Cambridge University Press, 2012.
Call Number
KF4941 .H35 2012
ISBN
9781107026926 (hardback)
110702692X (hardback)
9781107608573 (paperback)
1107608570 (paperback)
110702692X (hardback)
9781107608573 (paperback)
1107608570 (paperback)
Description
xvii, 273 pages ; 24 cm
System Control No.
(OCoLC)812194439
Summary
"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"-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references (pages 257-263) and index.
Record Appears in
Gift
Purchased from the income of the Edith L. Fisch Fund
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Edith L. Fisch Fund
Table of Contents
List of Figures
xii
Acknowledgments
xiii
Prologue
xv
1.
A Constitutional Tyranny and Presidential Dictatorship
1
Catch 22: Congressional Incapacity and a Dictatorial President
4
Organization of the Book
6
pt. I
WHAT IS THE HISTORY?
2.
How the President Declares War: The War of 1812
11
An Absurd War
12
A New Rhetoric of Diabolism
15
A New Congress for Young America
16
A New President or an Old Republican?
17
The War Cabinet
20
The War Hawks
21
Spring Arrives
23
A Dictatorial President Enters Congress
24
The Waiting Game
28
The EndGame
31
Analysis
33
The Absurd Consequences: A Unique Power or a "Divided, but Shared" Power?
33
The Role of Performative Speech Acts
35
Organizational Incapacity
37
Rule of Law
39
Conclusion
40
3.
Why the Congress Ought Not Declare War: The Spanish-American War, 1898
42
The Pearl of the Antilles
43
The Restoration Monarchy
46
"To Convene and Give Information"
47
The Message
48
A Bicameral Congress and Electoral Politics
50
Let the "Games" Begin
52
The "Games" Continue in the Senate
54
The "Games" Return to the House
59
The End of the "Games"
61
Analysis
65
Moral Incapacity
65
Decorum and Organization
67
Conflict Resolution Potential
67
Drafting a High-Quality Text: Two Rhetorics
69
Political Politicians
70
4.
A Plan for Acquiescence: The War Powers Resolution of 1973
72
An Imperial Presidency?
74
Exorbitant Transaction Costs, Difficulty Coordinating Shared Interests, and an Extensive Collective Action Problem
76
A Congressional Desire to Cooperate
78
Analysis
86
pt. II
WHAT IS A DECLARATION OF WAR?
5.
Declaring and Commanding: Forms, Functions, and Relationships
91
"Armed Conflict" versus War
93
The Impossibility of an "Undeclared" War
94
"Formal" versus "Informal" Declarations of War?
95
The Impact of Unconstitutional Declarations on International Law
97
War as a Speech Act: Alternative Types
101
Degrees of Existence
104
Degree of Justification
106
Degree of Ceremony
106
Degree of Perfection
107
War as a Speech Act: The Compositional Elements
108
Ends and Means, Declarer and Commander
113
The Difference between War in Theory and in Practice?
114
What Are the Ends of War?
117
"The End Is Preexistent in the Means"
118
Is Declaring Separable from Commanding?
121
The Primary Functions of Declarations of War
124
6.
Lawful and Unlawful Declarations of War: Quantity over Quality
126
Defining the Problem
127
The Congressional Declarations of War
130
Second Continental Congress: The Declaration of Independence, 1776
130
Procedurally Perfect Congressional Enactments to Suppress Piracy, 1798-1823
130
Miscategorization: An Act for the Prosecution of the Existing War between the United States and the Republic of Mexico, 1846
131
Procedurally Imperfect Congressional Declarations of War
132
A.
Without Authorization to Use the Armed Forces
132
B.
With Authorization to Use the Armed Forces
133
Procedurally Perfect Congressional Declarations of War
134
The Presidential Declarations of War
136
The Town Crier Reads a Procedurally Imperfect Declaration of War
138
The Town Crier Rests
138
The Town Crier Reads a Procedurally Perfect Declaration of War
138
Analysis
144
7.
Six Possible Structures
146
A Purely Royal or Executive Decision
147
A Mixed Decision, Type 1, Request for an Appropriation
148
A Mixed Decision, Type 2, Request for Authorization
150
A Mixed Decision, Type 3, U.S. Congress, Standing Committee Organization (1812, 1917, 1941)
154
A Mixed Decision, Type 4, U.S. Congress, Standing Committee Organization (1898)
156
A Purely Legislative Decision: Committee of the Whole Organization
157
pt. III
WHAT ARE THE SOLUTIONS?
8.
A Constitutional Amendment
163
Social Orders and Democracy
164
Why Three Functions?
168
A Constitutional Amendment
175
9.
A Congressional Work-Around
183
The Committee-of-the-Whole System
184
A Question of Quantity
186
A Changed Dynamic
191
A Question of Quality: A Degradation of Expertise
193
The National War Powers Commission Report of 2008
196
A Joint Drafting Committee
198
pt. IV
WHAT IS THE THEORY?
10.
Bellum Justum et Pium: The Rule of Law and Roman "Piety"
207
An "Impious" Bush
211
Bureaucratic Propriety
213
11.
The Rule of Law: Searching for Ontology
216
Universal Affectivity and Performativity
217
Performative Speech Acts: A Technical Vocabulary
219
Self-Contained and Not-Self-Contained Speech Acts
221
The Rule of Men: Slipping through the Gap between Word and World
223
How Not to Declare War: The Insufficiency of the Sufficient Consequences
232
Epilogue: Senator Malcolm Wallop
237
Appendix I
Five Congressional Declarations of War and One Appropriations Act
241
Appendix II
The Foederative Powers in Parliamentary Governments
251
References
257
Index
265