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ARTICLE CONTENTS INTRODUCTION 5 1. A PRELIMINARY PARSING 13 II. COMMANDERS IN CHIEF--NEITHER UNCOMMON NOR AUTONOMOUS 18 A. Commanders in Chief Before the Constitution 19 1. English and British Practice [...], The conventional wisdom is that the Commander-in-Chief Clause arms the President with a panoply of martial powers. By some lights, the Clause not only equips the President with exclusive control over military operations, but also conveys the powers to start wars, create military courts, direct and remove officers, and wield emergency wartime powers. Under such readings, the meaning of "commander in chief" is as obvious as it is unequivocal--it confers some measure of absolute and unchallengeable authority upon the President. Yet, seemingly paradoxically, proponents of this stance cannot say where the Commander in Chief's power begins and ends. In particular, establishing the Clause's limits is an acute and persistent problem. Using eighteenth-century understandings as a yardstick, this Article topples the orthodox reading of the Clause and demarcates the Clause's elusive frontiers. In contrast to modern assumptions, the Article reveals that eighteenth-century commanders in chief enjoyed neither sole nor supreme authority over the military. Throughout the seventeenth and eighteenth centuries, there were, at any one time, a multitude of British and American commanders in chief, and both assemblies and other military officials consistendy directed these commanders, often in quite intrusive ways. By borrowing a familiar expression, the Constitution incorporated the modest, contemporary conception. Rather than being a sui generis military potentate, the President is nothing more than a chief commander, or what Alexander Hamilton called the "first General and Admiral." The Commander in Chief of the Army and Navy lacks a vast arsenal of military authority but instead possesses only the constrained powers of a general and admiral. Crucially, the Clause does not grant any exclusive authority over peacetime operations or even the conduct of war. Nothing about the term "commander in chief" would have suggested such autonomy because previous chief commanders had lacked such independence. Indeed, early Presidents never objected to congressional bills that sought to regulate military operations pervasively, including wars. Rather, they signed the proposals into law and, thereafter, sought to faithfully execute them. To be sure, the President is more than a mere general and admiral. Due to the rest of Article II and the Presentment Clause, the President wields considerable authority and influence over the military, far more than a generic commander in chief would. These other sources of power convey authority over the appointment, direction, and removal of military officers and substantial influence on which military bills will become law. In the grand scheme of things, the Commander-in-Chief Clause is far less significant than these otlier clauses. How we read the Commander-in-Chief Clause matters. Without a sense of the Clause's alpha and omega, Presidents will continue to cite it to evade, minimize, and commandeer congressional powers. If this Article's assertions are correct, however, Presidents will no longer be able to insist that the Founders established a chief commander that can start wars or one that enjoys exclusive authority over operations. By decrypting the Clause, this Article highlights the extent to which Presidents have amassed power untethered from constitutional moorings and also may help fend off further executive overreach. Although some puzzles remain, this Article takes some initial strides in the long march towards deciphering the Commander-in-Chief Clause.

INTRODUCTION 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 [...], The Constitution seems silent about who may end a war and how they may do so. There is no "declare peace" clause, and scholarship has long neglected this matter. Yet given two "Forever Wars," considerable fatigue with both, and numerous demands to end them, the question of how to end hostilities is exceptionally salient. We conduct an overdue dissection and reveal that the Constitution charts many paths to peace. The familiar route consists of the executive negotiating and, with the Senate's consent, ratifying a peace treaty. But there are other paths, more obscure and less comprehensive but nonetheless viable and valuable. First, the president can end combat via an armistice. Second, Congress can halt war funding, thereby ending U.S. warfighting. Third, Congress can legislatively terminate the use of military force. Whether a peace develops via one of these alternative routes depends upon whether the enemy ends warfare as well and, importantly, whether that mutual cessation of hostilities endures. In assessing these pathways, the Article underscores an oft-forgotten feature of the Constitution: it does not always neatly separate powers. It sometimes grants multiple institutions independent authority to achieve similar ends, creating an overlap. When it comes to peace, this point has been lost. As the Forever Wars march forward, almost inexorably, federal policymakers should familiarize themselves with the Constitution's many roads to peace. Introduction 718 I. Misreading the Peace Constitution 725 A. Conflicting Scholarly Views 726 B. Against Pinched Construction 728 1. Against Treaty Exclusivity 730 2. Against Sidelining Congress 732 II. The Treaty Power 740 A. Effects 740 B. The Peculiar Utility of Treaties 743 III. The Armistice Power 744 A. Mechanisms 747 B. Effects 752 IV. The Defunding Power 762 A. Mechanisms 766 B. Effects 768 V. The Termination Power 769 A. Mechanisms 774 B. Effects 776 Conclusion 780

This year marks the 200th anniversary of Marbury v. Madison, the case which is often taught in law schools as establishing judicial review. Despite the absence of any broader political controversy over the role of the Supreme Court, akin to that which existed during the Civil War or the New Deal periods, academics from both ends of the political spectrum have attacked the legitimacy of judicial review. Recent critics have even argued that the Constitution, as originally understood, did not authorize courts to refuse to enforce unconstitutional legislation.In this paper, we discuss the textual, structural, and historical roots of judicial review. First, we show that the constitutional text permits judicial review and we describe the severe difficulties associated with the claim that the Constitution is not law to be applied in the courts. Second, we explain that the constitutional structure requires the judiciary refuse to enforce laws that violate the Constitution due to its status as a coordinate branch of government. Simply put, the text and structure demand that the judiciary interpret and give effect to the Constitution in the course of performing its function of deciding Article III cases or controversies. Third, we refute the notion that the Founders did not understand the Constitution to establish judicial review. We trace how historical developments leading up to the ratification had made judicial review a familiar institution to the Founders, and we demonstrate that all those who discussed judicial review during ratification (there were dozens) agreed that the Constitution authorized judicial review. We conclude that those who argue that the Founders originally understood the Constitution to preclude judicial review have misread the historical record.

INTRODUCTION The Constitution grants the President the power to make treaties by and with the advice and consent of the Senate. One persistent matter of debate is whether there are [...]