St. Mary's Law Journal


The United States faces a future in which the possibility of a conventional, great-power conflict is elevated. This is because of a constitutional interpretation that has altered United States constitutional war powers significantly. Specifically, the interpretation gives the president the authority to initiate and escalate war or hostilities unilaterally. In this Article, I reexamine that specific historical interpretation and find it wanting. I then offer a different historical interpretation, drawing upon other contemporary writers as well as upon historical events in order to give a more complete and nuanced understanding of the context in which the early American leaders developed the United States’ constitutional war powers. This more nuanced understanding leads to the conclusion that the early American leaders intended for congress—and only congress—to have the authority to initiate and escalate war or hostilities.

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St. Mary's University School of Law


Heather C. Montoya