Authors

Ingrid Wuerth

Document Type

Article

Publication Title

Michigan Law Review

Publication Date

2007

ISSN

0026-2234

Page Number

61

Keywords

Commander in Chief Clause

Disciplines

Constitutional Law | International Law | Law

Abstract

The Commander in Chief Clause is a difficult, underexplored area of constitutional interpretation. It is also a context in which international law is often mentioned, but not fully defended, as a possible method of interpreting the Constitution. This Article analyzes why the Commander in Chief Clause is difficult and argues that international law helps resolve some of the problems that the Clause presents. Because of weaknesses in originalist analysis, changes over time, and lack of judicial competence in military matters, the Court and commentators have relied on second-order interpretive norms like congressional authorization and executive branch practice in interpreting the war and foreign affairs powers of the President. International law can itself function as a second-order interpretive norm, in many ways similar to other forms of congressional authorization or executive branch practice. But because it is mediated in unique ways-by other countries and within our own domestic political system-international law is an especially compelling way to resolve problems with judicial competence and changes over time. International law also makes a powerful contribution to an originalist understanding of the Commander in Chief Clause: the Constitution explicitly vested control over war-related questions of international law with Congress, not the President.

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.