Today, writes Ben Daus-Haberle, the Militia Clauses of the Constitution lead a curious double life. The Second Amendment’s preamble stars in gun rights debates, but when the conversation shifts to the War Powers, these Clauses drop almost entirely from view. The result is a War Powers literature strikingly silent about the Militia Clauses. Yet the founders regarded the militia as a key military resource. To them, the militia was the “great Bulwark of our Liberties and independence,” and they structured the Constitution with this bulwark in mind.
This paper returns the Militia Clauses to view to explore how they shaped the War Powers. While scholars have occasionally considered the clauses in isolation, the full dimensions of this regime only become visible when the clauses are examined intratextually—that is, in dialogue with each other and the rest of the constitutional text.
Doing so both illuminates the original functioning of the War Powers and prevents misunderstandings that can arise when individual clauses are considered in isolation.
Michael Schmitt and Christopher Ford unpack the Trump Administration’s legal justifications for the April 2017 United States attack on a Syrian airfield in response to its use of chemical weapons against civilians. Schmitt and Ford discuss three possible legal bases for the use of force: self-defense, response to an internationally wrongful act, and humanitarian intervention. The authors conclude that the US’s actions run afoul of limitations in each relevant body of law, and of note, they discuss how this attack is consequential for the validity of humanitarian intervention on another state’s territory without approval from the UN Security Council. They conclude by suggesting that the international community is likely to consider the nature of suffering, in addition to the quantum of suffering, as bearing on the right of States to mount future humanitarian operations.
MAJ Peter Combe argues that the covert action statute prohibits the Central Intelligence Agency from violating self-executing treaties to which the United States is party, as well as non-self-executing treaties and customary international law implemented by statute, but it provides domestic legal authority to violate non-self-executing treaties and customary international law that have not been implemented through legislation by Congress. This application of the covert action statute in practice is illuminated through a case study of the legal issues surrounding the Osama bin Laden raid.