Publication Date

September 6, 2013

The Institute for Constitutional History is pleased to announce another Robert H. Smith seminar for advanced graduate students and junior faculty!


Modern Constitutional War Powers



Martin S. Lederman is Associate Professor of Law at the Georgetown University Law Center.  He was Deputy Assistant Attorney General in the Department of Justice’s Office of Legal Counsel from 2009 to 2010, and an Attorney Advisor in OLC from 1994–2002.  In 2008, with David Barron, he published a two-part article in the Harvard Law Review examining Congress’s authority to regulate the Commander in Chief’s conduct of war.  He has been a regular contributor to several blogs and web sites, including Balkinization, SCOTUSblog, Opinio Juris, and Slate, writing principally on issues relating to separation of powers, war powers, torture, executive branch lawyering, and the First Amendment.

Edward A. Purcell Jr. is the Joseph Solomon Distinguished Professor at New York Law School and one of the nation’s foremost authorities on the history of the United States Supreme Court and the federal judicial system.  He is the author of several books, including Originalism, Federalism, and the American Constitutional Enterprise: A Historical Inquiry (Yale University Press, 2007), and Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America (Yale University Press, 2000).

Program Content:

The six-week seminar concerns the evolution of the distribution of war powers from the beginning of the Twentieth Century to the present day.  The Founders endeavored to create a federal system in which a separation and blending of powers would make the legislature the preeminent source of military authority and thus prevent the executive from unilaterally entangling the nation in costly belligerent adventures.  Conventional wisdom has it that practical developments over the past 100
years—most significantly, the creation of a powerful standing army and intelligence establishment, the development of nuclear weapons, and the emergence of a much more robust role for the United States as a superpower responsible for the defense of Europe and other allies in a post-nuclear age—have rendered the original constitutional design obsolete, such that Congress and the courts have largely ceded war-making authority to an all-powerful, virtually unchecked President.  In this interdisciplinary course, using conventional legal materials as well as recent historical and political science accounts of the distribution of war powers, we will examine whether and to what extent this conventional account is accurate, and will more broadly discuss whether the current balance of powers ensures sufficient checks on misguided adventurism and abuse of individual liberties.


Wednesday afternoons, 3:00–5:00 p.m., October 16, 23, 30, November 6, 13, 20.  The seminar will meet at the New-York Historical Society, 170 Central Park West, New York City.

Application Process:

The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines.  All participants will be expected to complete the assigned readings and participate in seminar discussions.  Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar.  Please consult with your advisor and/or director of graduate studies about these possibilities.  Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development.  Materials will be accepted only by email at until September 15, 2013.  Successful applicants will be notified soon thereafter.  For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to

Additional Information:

There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

About ICH:

The Institute for Constitutional History (ICH) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the New York Historical Society and the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the

Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICH prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICH also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history.

This post first appeared on AHA Today.

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. Attribution must provide author name, article title, Perspectives on History, date of publication, and a link to this page. This license applies only to the article, not to text or images used here by permission.