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- Title
THE CONSTITUTION'S FIRST DECLARED WAR: THE NORTHWESTERN CONFEDERACY WAR OF 1790-95.
- Authors
Hall, William; Prakash, Saikrishna Bangalore
- Abstract
What counts as the first presidential war--the practice of Presidents waging war without prior congressional sanction? In the wake of President Donald Trump's attacks on Syria, the Office of Legal Counsel opined that unilateral presidential war-making dates back 230 years, to George Washington. The Office claimed that the first President waged war against Native American tribes in the Northwest Territory without first securing congressional authorization. If true, executive war-making has a pedigree as old as the Constitution itself. Grounded in a systematic review of congressional laws, executive correspondence, and rich context of the era, this Article evaluates the claim that our first President waged war in reliance upon his constitutional authority. In fact, there is little that supports the bold claim. Congress authorized war against Northwestern tribes raiding frontier settlements. In other words, Congress exercised its power to declare war and did, in fact, declare war, albeit without using that phrase. Moreover, Washington and his cabinet repeatedly disclaimed any constitutional power to wage war without congressional sanction, making it exceedingly unlikely that he waged war of his own accord or in sole reliance on his constitutional powers. Washington's abjurations of power should make executive-branch lawyers blush, for the Commander in Chief and his celebrated advisors, including Alexander Hamilton, Thomas Jefferson, and Henry Knox, consistently observed that Presidents could not take the nation to war and, therefore, could not sanction offensive measures, including attacks. The Constitution's First War was a congressional war through and through, just as the Constitution requires. It was not a presidential war and cannot be cited as a long-lost precedent for presidential wars in Korea, Libya, or Iran.
- Subjects
WAR; UNITED States. Constitution; CONSTITUTIONS; UNITED States politics &; government; UNITED States. Continental Congress; UNITED States. Congress; NOOTKA Sound Controversy, 1789-1794
- Publication
Virginia Law Review, 2021, Vol 107, Issue 1, p119
- ISSN
0042-6601
- Publication type
Article