Judgment on the sword : the US Supreme Court’s jurisprudence on presidential war powers.
This dissertation examines the US Supreme Court’s jurisprudence on presidential war powers from the early republic to the present. It argues that the Court’s jurisprudence has generally defended both a broad presidential power to prosecute war as well as a strong judicial power to enforce constitutional limits on the executive. In contrast to the majority of the literature which defends either presidential primacy or congressional primacy over war, the Court’s jurisprudence offers an alternative approach to constitutional war powers that recognizes discretion for the president to conduct war but also constitutional restrictions that moderate the executive power. The Court has developed a tradition of jurisprudence, reflected heavily in the thought of Joseph Story and Abraham Lincoln, which recognizes that there are broad presidential war powers granted by the Constitution that depend upon circumstances for their application and that because these powers come from the Constitution, they are subject to its limits, including judicial review. This Story-Lincoln tradition arose against a challenge for congressional primacy in the nineteenth century and defended itself against a challenge for unlimited presidential war powers in the twentieth and twenty-first centuries.