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Doctrinal Development in Time of War

Thus, the Constitution is relatively straightforward with respect to the relative authority of the three branches of government (Delahunty and Yoo 2002, 489).

Collier and Collier (1986, 330) note that the Founders debated whether or not the House of Representatives or the Senate should be the appropriate locus for war powers, with some members of the Constitutional Convention arguing that the lower house would work too slowly and that the Senate would be more acquainted with foreign affairs and therefore would be more capable of proper resolutions while others, such as Pierce Butler of South Carolina, felt that the president should be able to make this kind of decision. Ultimately, as noted above, the Founders elected to hedge the power of the president over the military (Collier 1986, 331; Cruden 1975, 38). Despite this clarity, ongoing debate over this important manner has continued to this day.

Initiatives, Enactments, and Decisions, 1789-1899

Two early Supreme Court cases, in 1800 and 1801, involved the Quasi War against France, which took place between 1798 and 1800 (Fisher 2000, 564). According to Sidak (2005),

Constitutional scholars cite three Supreme Court decisions arising from the undeclared Quasi War with France in 1798-1800 as support for the proposition that Congress may authorize war of any magnitude, and that, except in case of sudden or imminent attack on the United States, this congressional authority displaces any right of the President to use military force of even modest magnitude without prior congressional authorization. The textual hook claimed by these scholars for so reading Bas v. Tingy, Talbot v. Seeman, and Little v. Barreme is the phrase in Article I, Section 8 of the Constitution that immediately follows the grant to Congress of the power "To declare War"--namely, the power to "grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water." These additi...

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Doctrinal Development in Time of War. (1969, December 31). In Retrieved 03:52, August 20, 2017, from
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