Reconstituting the War Powers: Towards a Deliberative Constitutional System for War
Janow, Jeremy A.
Elkin, Stephen L.
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This study of American constitutional theory and practice offers a distinctive perspective on the interminable war powers debate, a view away from formal constitutional settlement and towards a deliberative constitutional politics for war. Contemporary war powers scholarship centers on the question of how the rise of discretionary executive power and receding legislative influence over the use of military force should be constitutionally evaluated and addressed. This dissertation shows that underlying the conventional divide between congressionalist and presidentialist interpretations of the Constitution are competing theories about how such a balance of powers is to be politically constituted that have important implications for the interbranch politics of warmaking. The predominate framing of the war powers debate has been from the vantage point of legal constitutionalism--centering on constitutional interpretation, statutory clarification, and ultimately judicial review to clearly establish the authority over the use of military force. After describing the theoretical promises of the formal entrenchment of the separation of powers, an examination of constitutional practice reveals this approach to be a contemporary construction that has tended to undermine the purposes to which it aspires. The dissertation then turns to consider a more fully political constitutionalism, a conception with roots in the American founding and which has seen a revival in recent scholarly discussions. Political constitutionalism accommodates continual discord over the proper boundaries of institutional authority in war and the inevitability of some executive discretion as inherent and potentially salutary elements of the political order. The analysis shows that the warmaking order that emerges from such a constitutional politics should not entail anything goes, but instead can be judged by the extent the branches engage in recurring interactions that amount to systemic deliberation, a standard drawn from the political form of the constitution itself. This study concludes with a sketch of how processes of legal constitutionalism might be integrated into the deliberative interbranch warmaking politics aspired to by political constitutionalism and a view towards the broader political foundations of a deliberative constitutional system for war.