AuthorRasmussen, Avery C.


The attack on 9/11, and its thousands of victims, will forever be etched in the hearts of Americans. Those acts of terror spawned two wars, one against the perpetrators of the 9/11 attacks and another against Saddam Hussein and the supposed threat posed by Iraq. Like a juggernaut, the wars have lumbered on for almost two decades, with combatants and victims not even alive in 2001. We have had mission creep (from ousting the Taliban to protecting the Afghan government), enemy creep (fighting the Iraqi Republican Guard and then ISIS), and the death of creeps (Osama Bin Laden, Saddam Hussein, and Abu Bakr al-Baghdadi).

Numerous presidents have resolved to end our involvement in these "forever wars." (1) While warfare in Iraq continues (albeit with relatively low troop levels), the war in Afghanistan seems to have come to a mortifying close. Somehow, the humiliation from the shambolic withdrawal was worse than the disgrace after the fall of Saigon. Our reputation with friends and foes will suffer for decades. And if we ever must fight the Taliban again, they will turn our high-tech weapons against us. As disastrous as the withdrawal was, at least we are finally out of Afghanistan, or so many Americans may suppose. (2) Think of it as peace with dishonor.

Yet no one should blithely assume we are out of the woods. If the past is prologue, respites from these wars prove to be temporary, for lulls are followed by surges. After President Obama withdrew troops from Iraq in 2011, for example, he reinserted them three years later and they have remained ever since. (3) The chaos that attended President Joseph Biden's withdrawal of all troops from Afghanistan, and the stranding of hundreds of Americans, green card holders, and Afghan allies leaves the fate of that war similarly unsettled. (4) Some, like former CIA Director Leon Panetta, insist that we will return to Afghanistan because our safety will require it. (5)

The unvarnished truth is that the Afghanistan War is not over. While the President initially boasted that he had "ended the longest war in U.S. history," he later insisted that the United States will fight terrorists in Afghanistan using "over-the-horizon" technology. (6) "We can strike terrorists and targets without American boots on the ground--or very few if needed." (7) So we may strike Afghanistan with high-tech weaponry and perhaps a "few" American boots will return to Afghanistan. Somehow, some way, these Forever Wars abide. (8)

How to finally end these Forever Wars? That question, on the minds of millions, perplexes to no end. No peace treaty seems in the offing, for even though we signed some sort of peace pact with the Taliban, (9) there will never be a treaty with Al-Qaeda or its even more horrific rival ISIS. From time to time, legislators have proposed the repeal of one or both Authorizations for Use of Military Force (AUMFs), and the Obama Administration suggested that Congress authorize a new war against ISIS and simultaneously repeal the 2002 AUMF. (10) But would repeal matter? Some say no, arguing that peace treaties are the sole constitutional means of ending a war and that Congress cannot make peace, through repeal or otherwise. (11) And what to make of the unilateral presidential withdrawal of troops? Is a war legally over when the last boots are off foreign soil?

What does the Constitution say about all this? Not much, or so it seems. The Constitution bristles with references to war: it speaks of Congress "declaring] War," generally bars states from "engaging] in War," and defines "treason" as "levying War." (12) But it never specifies how to end a war, leaving a deep and unsettling uncertainty. As significant as the war power was at the Founding, the peace power was no less critical. Indeed, the Framers sought a framework that would "facilitate] peace." (13) They succeeded, albeit in ways that elude many modern readers.

"Peace" can refer to many states of the world. As we use it, it encompasses four distinct situations. In a colloquial sense, peace means the prolonged absence of hostilities. Practically, peace prevails when the fighting has long ceased. Hence, even without a formal accord with the enemy, peace nonetheless exists if there is a protracted halt to warfare. In such cases, the war is finished in important, real-world ways--hostilities are over, and troops

(may) have come home. (14) When ordinary Americans speak of peace, this is generally what matters to them.

Second, peace has constitutional dimensions. As a matter of the original Constitution, the president may wage war only after Congress has exercised its power to declare war. (15) After the nation makes peace, however, that domestic authority ceases to exist. War, at least on the part of the United States, cannot legally resume without a new congressional authorization of war. Furthermore, states have additional constitutional authority in times of war, powers which lapse in peacetime. (16)

Third, peace can refer to a status under ordinary federal law. Many federal statutes operate only during wartime, such as those granting emergency authorities to the executive. (17) Other federal rules like rent stabilization or price controls likewise have effect only in times of war. (18) Wartime status also affects the application of the Uniform Code of Military Justice; civil disputes, like those involving claims to insurance or veterans' benefits; and certain tort claims. (19) Sometimes overseas hostilities may have ceased, and thus America may be at peace in a practical sense, but may not be at peace for purposes of federal statutes.

Last is an international legal state of peace. Under eighteenth-century international law, a state of peace had significance for international relations. When a treaty made peace, the international legal state of war would cease, and the norms and laws of peacetime would resume. These laws affected relations between the two countries, such as treaty obligations or liabilities for seizures at sea, and dealings with neutral countries. (20) Given the importance of the international state of peace in the eighteenth century, the Constitution's drafters focused on the most surefire way to achieve it: peace treaties. But the Founders were aware of other means of achieving a state of peace under international law. Furthermore, shifts in international law, particularly the adoption of the United Nations Charter, have diminished the significance of peace treaties.

Existing scholarship on these topics suffers from several drawbacks. First, many scholars conflate these distinct senses of peace, treating peace as a singular concept. As a result, some focus on peace treaties and mistakenly assume that they are the only path to peace from a constitutional perspective. Second, some fixate on the Philadelphia Convention and a handful of Founding-era quotations, as if these were the only relevant materials to the constitutional peacemaking inquiry. The record is far richer, with treatises, early practices, and early statements supplying insights about the means of making peace from an originalist perspective. Third, some suppose that peace cannot be made without the president. Yet the Constitution never grants presidents an absolute veto on peacemaking.

As a matter of institutional design, these pinched readings of the Constitution are less than ideal. If the only way to make peace is by a formal treaty, as some argue, then ending many wars often will be all but impossible. Getting two-thirds of the Senate to agree on anything is difficult in the best of times and virtually impossible in the modern era. (21) Moreover, significant changes in practice exacerbate this concern. Traditionally, wars had welldefined aims such as addressing grievances or vindicating territorial claims. These wars were overwhelmingly ended by treaties. (22) But in our era, in part because the United Nations Charter limits resort to force, wars today often have more ill-defined objectives. (23) Relatedly, peace treaties are a rarity. (24)

Modern international law, including the Charter, diminishes their utility and necessity. Finally, many contemporary enemies are transnational groups and are unlikely to make a treaty, much less a peace treaty. These less determinate and shifting features dominate the legal backdrop of our Forever Wars.

More importantly, the cramped readings of our Constitution are flawed. Scholars are preoccupied with peace treaties, insist upon too much power for the president, and wrongfully minimize Congress's considerable authority. Further, the legalistic focus of some scholars obscures the more practical senses we care about--and that Americans always bear in mind. For citizens, halting hostilities is the most relevant sense of peace and its significance vastly outstrips all others.

Existing scholarship lacks a comprehensive exploration of the ways to make peace in its many senses. We fill that gap. We reject arguments that impose artificial constitutional limits on the methods of terminating conflicts. We recontextualize the originalist evidence--including the oft-cited debates--to reveal that the Constitution paved many roads to peace.

To be sure, peace treaties were an especially vital method of making peace at the Founding. The fledgling country had just concluded its first peace treaty with Great Britain, one securing invaluable rights, not least of which was recognition of sovereignty. To preserve America's rights and prevent lopsided treaties, the Founders made peace treaties--no less than regular treaties--difficult to conclude.

Yet Americans were wary of war. Wars took precious lives, expended scarce coin, jeopardized civil liberties, and often were the "nurse of executive aggrandizement." (25) Accordingly, the Framers wanted to make sure that it would be "more easy to get out of war, than into it." (26) As we reveal, early Americans acknowledged the possibility of Congress defunding...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT