Contemporary debates over the appropriate allocation of war powers between the political branches overemphasize the rigidity of the Constitution’s framework. This style of academic discussion sacrifices the lessons of practice in search of steadfast, yet empty, principles. Even beyond the practical failings of this approach, there is no constitutional basis for the notion that either Congress or the President has a singular, fixed role when dealing with national security issues. In fact, the Founders developed a constitutional structure capable of continually reshaping—within parameters—the government’s division of national security power to match the nation’s security challenges. Rather than scouring the constitutional text and the historical record for a concrete legal dictate on congressional or presidential supremacy, we should instead look to text, history, and structure for guidance on how the political branches can legitimately and affirmatively negotiate their emergent responsibilities. This Article does exactly that, beginning with the capacious and forward-looking text of the Constitution and then analyzing actions taken by the political branches during the early years of the nation, the Civil War, and the mid-20th century. No easy answers appear, but certain consistent rules and best practices emerge that demonstrate the Constitution’s power to cohere American law and strategy. That is, as long as our elected leaders are up to the task.
Kyle L. Greene,
National Security Rules: America's Constitution of Law and War,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol73/iss2/3