WAR AND THE CONSTITUTION

WAR AND THE CONSTITUTION. Although concerned about national security, the framers of the U.S. Constitution produced a document that failed to make an unequivocal assignment of responsibility for the initiation of hostilities or to provide the national government with wartime emergency powers. Presidents and Congresses supplemented the constitutional text and the U.S. Supreme Court has validated their creations. In wartime, however, the Court has proved far more willing to sanction novel exercises of governmental authority than to enforce constitutional guarantees of individual rights.

The Power to Initiate Hostilities

Although inadequate, the national security provisions of the Constitution represent a vast improvement over those of the Articles of Confederation. The latter gave Congress neither effective control of foreign affairs nor an independent source of revenue with which to pay for a navy capable of protecting American commerce or an army big enough to defend the frontier and expel British troops from U.S. territory. The new Constitution written at Philadelphia in 1787, its proponents claimed, corrected these deficiencies. It would improve national defense and empower the federal government to deal effectively with other nations.

One reason was that the Constitution created the presidency, an office with the energy, efficiency, and capacity for secrecy that effective conduct of military and foreign affairs required. To ensure civilian control of the armed forces, the framers provided in Article II, section 2 that the president should be the "Commander in Chief of the Army and Navy" and of the militia when it was in federal service.

Article I, section 8 gave Congress the power "to declare war." What the framers meant by that is unclear. The declaration of war was a medieval custom, associated with chivalry, which required one belligerent to notify another formally before commencing hostilities. By 1787 it had fallen into disuse, and the Constitutional Convention probably was trying to do something more than merely designate Congress as the body that would give such notification in the small minority of conflicts where it was employed. The Committee on Detail originally proposed authorizing Congress to "make war." The full Convention changed that to "declare war" after a brief and unenlightening discussion. It was apparently trying to ensure that the president could respond immediately if the nation were attacked. However, by choosing an abstruse term while giving the president the ability to start a war simply by deploying the armed forces of which he was commander in chief, it precipitated continuing conflict over which branch has the authority to initiate hostilities.

Generally, presidents have done so. Congress declared war on Great Britain in 1812, Mexico in 1846, Germany in 1917, and the Axis powers in 1941. In addition, in 1898 it authorized President William McKinley to take military action against Spain if the Spanish did not relinquish their authority over and withdraw their armed forces from Cuba. For most of the hundreds of conflicts in which the American military participated between 1787 and 1973, however, ranging from small skirmishes with Indian tribes to the Korean and Vietnam Wars, there was no congressional declaration.

The Supreme Court has never ruled on whether such undeclared wars are constitutional. During the Vietnam conflict several litigants asked it to do so, but the Court refused to decide their cases. The closest thing to a relevant ruling is the Prize Cases (1863), in which the issue was actually whether Abraham Lincoln had violated international law by blockading the South in the absence of a declaration of war. In the process of holding that he had not, the Court proclaimed that a president was bound "to resist force by force" and might do so "without waiting for any special legislative authority" or "for Congress to baptize it with a name."

While the Supreme Court has imposed no limitations on presidential war making, Congress has attempted to do so with quasi-constitutional legislation. The War Powers Resolution of 1973 permits the president to take military action under certain circumstances without a declaration of war, but requires him to notify Congress promptly and to desist if it does not subsequently grant him affirmative authorization. Beginning with Richard Nixon, who tried unsuccessfully to veto this law, presidents from both parties have disputed its constitutionality while failing to comply with its provisions.

Before George H. W. Bush launched Operation Desert Storm in 1991, however, he obtained from Congress an Authorization for the Use of Military Force against Iraq, which stated that it was intended to constitute the statutory authorization contemplated by the War Powers Resolution. His son secured a similarly worded resolution before commencing the war on terrorism in 2001. The chairman of the Senate Foreign Relations Committee pronounced it the functional equivalent of a declaration of war.

Domestic War Power

Although Congress seldom makes the decision to initiate hostilities, war inevitably enhances congressional authority. No single constitutional provision grants it the "war power," but Article I, section 8 authorizes Congress not only "to declare war," but also to "raise and support Armies," "provide and maintain a Navy," "make Rules for the Government and Regulation of the land and naval Forces," and "provide for organizing, arming, and disciplining the Militia" and for governing it when it is in federal service. The Supreme Court has held that these grants of authority, in conjunction with the Necessary and Proper Clause, empower Congress to do things in wartime that would be unconstitutional in peacetime. Thus, in Hamilton v. Kentucky Distillers (1919) it upheld a national prohibition statute as a war emergency measure, although banning alcoholic beverages in peacetime required a constitutional amendment. In Hamilton and later cases, the Court explained that this congressional war power remained operative during an ill-defined period of reconversion after fighting ended.

War also expands the president's power. One reason is that Congress generally delegates substantial authority to the executive in wartime. During the Civil War it even ratified actions already taken by Abraham Lincoln that encroached upon legislative prerogatives. Lincoln claimed that powers inherent in the presidency were sufficient to justify his actions. Out of the clause making the president commander in chief and the provision in Article II, section 3 directing the president to "take Care that the Laws be faithfully executed," he forged an essentially unlimited presidential "war power." Although Lincoln made his expansive claims concerning the domestic prerogatives of the presidency in the context of a unique internal conflict, by the end of the nineteenth century, commentators were pointing to his actions as examples of what any president could do during any war. World War II saw Franklin Roosevelt claim his authority was so extensive that he could ignore congressional legislation he thought interfered with the war effort.

In Youngstown Sheet and Tube Company v. Sawyer (1952), the Supreme Court dealt a blow to such expansive claims of presidential prerogative, holding that Harry Truman might not seize the nation's steel mills in order to prevent a strike that threatened to disrupt defense production during the Korean War. It did so, however, mainly because Truman had refused to employ the means for dealing with such a labor crisis that Congress had provided in a statute. A majority of the justices indicated that in the absence of legislation, the president could do even something as drastic as take over an entire industry.

During the Vietnam conflict, neither Lyndon Johnson nor Richard Nixon made use of the inherent presidential war power. They did not have to, for by then Congress had enacted well over four hundred statutes giving the president extraordinary powers during national emergencies. Johnson and Nixon could exercise those because a proclamation of national emergency, issued by Truman in 1950, had never been withdrawn. Congress took away the authority it conferred in 1976, but in 2001 George W. Bush proclaimed a new national emergency.

Civil Liberties

While expanding presidential and congressional power, war tends to restrict civil liberties. The judiciary is reluctant to enforce constitutional guarantees of individual rights if doing so would require it to challenge military authority. When Chief Justice Roger Taney held in Ex Parte Merryman (1861) that Lincoln had no authority to suspend the writ of habeas corpus, the president and the army ignored him. Since then, the Supreme Court has generally deferred to military power during wars and rendered rulings enforcing the Bill of Rights only after the fighting ends. Thus, a year after Appomattox in Ex Parte Milligan (1866), it held unconstitutional the trial of civilians before military commissions when the civil courts are open and functioning.

Although Milligan proclaimed that constitutional guarantees are not suspended during the great exigencies of government, in fact they often are when those exigencies are military. Thus, the Court affirmed numerous convictions of political dissidents under the World War I Espionage Act (1917) and Sedition Act (1918), despite the apparent conflict between those laws and the First Amendment's guarantees of freedom of expression. In Schenck v. United States (1919) Justice Oliver Wendell Holmes Jr. declared that there were many things which might be said in time of peace that no court would regard as protected by any constitutional right "so long as men fight." In Korematsu v. United States (1944) the Court upheld the removal of Japanese Americans from the West Coast because the military deemed that action necessary. Although acknowledging that in peacetime singling out a group for disfavored treatment because of its race would constitute unconstitutional discrimination, the Court insisted this was permissible in wartime because "hardships are part of war."

Thus, the Constitution is different in wartime than in peacetime. In the interests of national security, it invests government with greater power while affording less protection to individual rights.

BIBLIOGRAPHY

Belknap, Michal R. "Vietnam and the Constitution: The War Power under Lyndon Johnson and Richard Nixon." This Constitution, no. 10 (spring 1986): 12–19.

Ely, John Hart. War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath. Princeton, N.J.: Princeton University Press, 1993.

Koh, Harold Hongju. The National Security Constitution: Sharing Power after the Iran-Contra Affair. New Haven, Conn.: Yale University Press, 1990.

Marks, Frederick, III. Independence on Trial: Foreign Relations and the Making of the Constitution. Wilmington, Del.: Scholarly Resources, 1986.

Rehnquist, William H. All the Laws but One: Civil Liberties in Wartime. New York: Knopf, 1998.

Reveley, W. Taylor. War Powers of the President and Congress: Who Holds the Arrows and Olive Branch? Charlottesville: University of Virginia Press, 1981.

Michal R.Belknap

War and the Constitution

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