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Clinic Appeals Dismissal of Iraq War Lawsuit

The Constitutional Litigation Clinic submitted a brief on November 11 to the United States Court of Appeals in Philadelphia asking it to overturn the decision by the District Court in Newark dismissing the clinic’s suit challenging the constitutionality of the war in Iraq. The appeal asks the Appellate Court to return the case to the lower court to consider whether the President and Congress followed required constitutional procedures for launching an all-out war against another sovereign nation.

The Constitutional Litigation Clinic’s argument focuses on the intent of the Founders when they placed the exclusive authority to Declare War in Congress in Article I, Section 8, Clause 11 of the Constitution. Much of the brief focuses on the debates at the Constitutional Convention on June 1, 1787. The brief argues that Convention delegates were unanimous that the newly-created Executive would not have the monarchical power to take the nation to war absent a congressional vote. The brief points out that no federal appellate court has heretofore examined the proceedings of June 1, 1787.

The brief quotes extensively from the writings of Alexander Hamilton in the Federalist Papers to the effect that the President had been deliberately stripped of a power formerly exercised by the British monarch. It also quotes Thomas Jefferson’s letter from Paris to James Madison congratulating the Convention delegates for having “checked the dog of War” by placing the war power in the hands of the people’s representatives in Congress. Then brief also cites three 19th century Supreme Court cases which supported its historical arguments – before 20th century war-power cases began implementing various avoidance doctrines to decline reaching the merits of the constitutional arguments. Since the 19th century, the Supreme Court has never attempted to define the meaning of Article I, Section 8, Clause 11. (Click here to read the full brief.)

Over the past two years, some 15 Constitutional Litigation Clinic students under the supervision of Clinic Director Professor Frank Askin have worked on this case and examined the history of the Constitutional Convention.