[Ilya Somin] Originalism, Living Constitutionalism, and the Power to Initiate War

In a recent post at the Originalism Blog, prominent originalist legal scholar Michael Ramsey notes the phenomenon of nonoriginalists like Sen. Bernie Sanders claiming that Trump's recent air strike on Syria requires congressional authorization. In Ramsey's view, this conclusion is difficult to justify on other than originalist grounds: I agree [with Sanders]…. But let's be clear that Senator Sanders and those agreeing with him are making an originalist argument. The Constitution given its original meaning is clear…. To "declare war" in eighteenth-century terms included "declaring" by taking military action as well as by issuing a proclamation, and even relatively small armed conflicts with foreign nations were considered "war." In contrast, the nonoriginalist case against the President's war-initiation power is highly uncertain. It can be made…. But the argument the other way is strong as well. Circumstances have changed…

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