Sunday, March 20, 2011
President Obama has ordered the U.S. military to attack Libya without congressional authorization. Put aside whether that is consistent with the principles on which Obama campaigned. Is it constitutional?
In my view, the original meaning is clear: he has no authority to do this. For the pathbreaking article that explained how the text of the Declare War Clause prevents the President from attacking countries, see Michael Ramsey, Textualism and War Powers, 69 U. Chicago L. Rev. 1543 (2002), which is unfortunately not online for free.
Liberals often view the original meaning as contrary to their views and many liberals who are originalists torture the original meaning to reach liberal results. But this is one area where the original meaning strongly favors the "liberal" position.
Cross Posted at The Originalism Blog.