Roger Hertog Program on Law and National Security
I have long believed two things about constitutional war powers, which my reading of Noah Feldman’s “The Three Lives of James Madison” largely confirmed. First, James Madison was brilliant and prescient about many things, but the strategy and politics of war were not among them. Second, modern constitutional critics of an imperial presidency place too much weight on the declare war clause – and especially Madison’s statements about it. Madison, indeed, worried deeply about unchecked presidential war powers. But Feldman’s book shows that Madison did not emphasize the same risks and checks so often ascribed to him today, especially by congressionalists who invoke Madison’s statements about war-initiation.
Matthew C. Waxman,
What's So Great About the Declare War Clause?,
Columbia Public Law Research Paper No. 14-576
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2085