Inigo Montoya Goes to War
2015; Oxford University Press; Volume: 95; Issue: 4 Linguagem: Inglês
ISSN
0006-8047
Autores Tópico(s)International Law and Human Rights
ResumoINTRODUCTIONIn The Princess Bride,1 conniving Sicilian Vizzini is constantly declaring that events that are obviously occurring in plain sight are inconceivable.2 The third time (in span of five pages) that Vizzini proclaims something that is clearly happening to be inconceivable, Vizzini's then-companion, Spaniard Inigo Montoya, snaps, You keep using that word! . . . I don't think it means what you think it does.3The voice of Inigo Montoya (well, actually voice of Mandy Patinkin, who brilliantly deadpanned rather than snapped4 a version of line in movie adaptation of The Princess Bride5) was running through my head while I was reading two books that are paired for this symposium at Boston University School of Law: Mariah Zeisberg's War Powers: The Politics of Constitutional Authority6 and Stephen Griffin's Long Wars and Constitution.7 Each author's analysis centers on single, repeatedly used words that I do not think mean what authors think they mean. In case of Professor Zeisberg, word is constitutional; in case of Professor Griffin, word is war. Interestingly, Professor Zeisberg pays keen attention to ambiguities latent in word war, (Zeisberg pp. 5, 8, 12-13, 19, 21) while Professor Griffin neatly avoids most of problems raised by Professor Zeisberg's use of term by treating his conception of a order (Griffin pp. 4, 14) as descriptive rather than prescriptive. If one could somehow merge two books, perhaps Inigo's voice would be silenced. But as things stand, both books, while immensely valuable resources, are in need of significant clarification.IProfessor Zeisberg's starting point is a Constitution without clear answers- or at least without clear answers to some very important questions about employment of military force by United States. According to Professor Zeisberg, the US Constitution's allocation of power to initiate hostilities is ambiguous. (Zeisberg p. 5). By this she means at least three things: (1) text of Constitution employs key terms, such as declare War8 and Power,9 whose meanings, both alone and in combination, are not clear and thus give rise to competing accounts of which institutions of national government can control exercise of military power in particular circumstances; (2) this textual uncertainty cannot be dispelled by conventional legal tools of interpretation (p.12); and (3) Constitution does not prescribe an authoritative mode of settlement to resolve differences when executive and legislative actors advance competing and inconsistent accounts of their powers. (pp. 6-8). Thus, she concludes:Both Constitution's text-which apparently commits elaboration of meaning of to a potentially rivalrous interbranch relationship-and history of war powers debates, where branches' interpretive claims are transparently driven by partisan, institutional, and policy rivalries, generate one common conclusion: core features of this area of constitutional policy do not intersect well with standard presumptions about conditions of faithful constitutional interpretation. (p. 8).Let us assume for moment (because it is true) that Professor Zeisberg is right that figuring out, for example, whether, when, and how Constitution empowers President to commit American troops to combat without congressional approval is not an easy task. At a minimum, any topic that can generate a three-way split, just within relatively small family of originalist scholars, among Sai Prakash, Mike Ramsey, and Robert Delahunty and John Yoo about something as basic as whether President can unilaterally respond to another country's declaration of war against United States10 is not likely to be a topic that is prone to generate obvious answers. Let us further grant (because it is true) that each department of national government must interpret Constitution in course of carrying out its functions. …
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