War Powers and the US Constitution
BU Law Review Symposium invites noted scholars to discuss their recent work.
On Thursday, October 30, Boston University School of Law was pleased to welcome distinguished scholars Steve Griffin, Rutledge C. Clement, Jr. Professor in Constitutional Law at Tulane University, and Mariah Zeisberg, associate professor of political science at the University of Michigan, to speak at the BU Law Review Symposium On War Powers and the Constitution.
Each year BU Law chooses two significant, recent books in law that enter into an important conversation on a timely topic. The author of each book is invited to write an essay on the other book, and several BU faculty members are invited to write essays on one or both books. The pieces are then published in the Boston University Law Review. This year’s symposium focused on the longstanding debate surrounding war powers through modern US history and which governmental agent has the rights to use them.
Stephen M. Griffin’s Long Wars and the Constitution (Harvard University Press, 2013) examines the constitutional history of presidential war decisions from 1945 to present. Griffin “rethinks the long-running debate over the ‘imperial presidency’” and argues that President Truman’s decision to fight the Korean War without seeking congressional approval was a violation of the constitution, but that Congress’s acceptance of that decision set a pattern for presidents to claim autonomy in war powers decisions.
Mariah Zeisberg’s War Powers: The Politics of Constitutional Authority (Princeton University Press, 2013) argues that the balance of powers created by the constitution generates ongoing conflict and tension between the branches. Those tensions, by stirring discussion and debate and compromise on both sides, generate the authority that allows the government to take action.
Zeisberg cites the showdown between Franklin Roosevelt and the isolationist Congress over World War II as an example of tension that builds authority for a war powers regime. President Roosevelt mobilized for his cause, made his case directly to the American people, all while Congress did the same, creating the staging ground for a productive debate that legitimized Roosevelt’s ultimate decision to enter the war. Ultimately, Zeisberg argues, an agent’s actions in declaring war cannot be evaluated in terms of their fidelity to the constitution; those actions must be evaluated in terms of their fidelity to the specific political context of the time of the decision.
Kicking off the discussion, Professor Griffin asserted that Professor Zeisberg’s theory of authority “risks running away from the original meaning of the constitutional text, which clearly gives Congress the authority to declare war.”
Zeisberg, in turn, rejected the notion that there is a coherent rule that informs who should ultimately have the power to declare war. “There will be an intervention that leads to war,” she said, “but there has not been one singular agent in history to make that decision. Rather, it has been a series of steps, and the context from which those steps have emerged have been characterized by flux and political upheaval.”
The remaining panels focused on the convergence and divergence of ideas in the two books. Among the BU faculty members to join Professor Griffin and Professor Zeisberg were Professors of Law Pnina Lahav, Gary Lawson, andRobert Sloane, as well as Douglas Kriner, associate professor of political science, and Kaija Schilde, assistant professor of international relations at the Pardee School of Global Studies.
Each scholar brought a unique perspective to the conversation, focusing their comments on each book as it related to their specific area of research. For example, as a scholar of comparative politics of national security institutions, Professor Schilde discussed elements of the balances of power between state and society over war. She noted, “Both Zeisberg’s discussion of the munitions committee and Griffin’s discussion of the role of civilian expertise inspired my reflection on the structural and systematic balance of power between private actors and society at large within the context of the war powers debate.”
Dean Maureen O’Rourke noted that the Law Review symposia never fail to “enhance the intellectual life of our campus by inviting new viewpoints and ideas.” Events like the BU Law Review symposia offer students the unique opportunity to participate in that intellectual life in a format that invites discussion and the exchange of ideas.
Essays presented at the War Powers symposium will soon be available in a future edition of the BU Law Review. Please check the website in the coming months to read more about the ideas exchanged during this exciting event.
