The Search for the Elusive War Power by Joseph Stromberg

One of the unintended consequences of the present moment, in which so many wars are on offer, is that we are forced to ask really fundamental questions. War powers have been invoked constantly of late, and not merely by sly inference. We are told in so many words that, if Lincoln could arrest everyone who seemed suspicious to him, why George Bush II can – and must – do the same to those who seem suspicious to him. The war power is thus a potentially large, if insufficiently controversial, topic.

All the bad “precedents” from Lincoln, Wilson, FDR, and others, are being shown off for our admiration. It is claimed that, taken together, these actions add up somehow to a body of doctrine, folklore, or something, on which “we” can now act, and the Devil take the hindmost. Even so, the basic concepts, under which the current saviors-of-the-union mean to go forward, are nowhere set forth in any very satisfactory way.

Short of agreeing from the outset with the conclusions that will inevitably be drawn by the friends of the war power, we can make little headway on this front unless we are ready to put the entire construct under citizen’s arrest and “interrogate” it ruthlessly under the bare light bulb of history. For this very reason, it pays to read the writings of those who adhere to the war power, giving it aid and comfort. Such persons often set the problem up with great clarity and see very well what is at stake. Their work can shed much light on things.

So it is, when Professor Robert F. Turner, a practitioner of National Security Law (whatever that might be), comments on the views of those who have objected to the Gulf of Tonkin Resolution of August 1964 as “a blank check.” Such arguments, he perceptively writes, actually “undercut the cherished myth that Congress was not a full partner in committing the United States to war in Indochina and ignored the reality that ‘declarations of war’ were by their nature ‘blank checks.’” [1]

Professor Turner has got something here, though that something may not be what he thinks it is, and his insight may lead us far afield. We must hold that thought: a declaration of war is a blank check. This is the penknife that will unravel the Gordian knot. If we don’t want blank checks drawn indefinitely on the public liberty and on civil society, we shall wish to investigate farther, declarations of war and other such appliances in relation to the much-mooted war power.

We have been hearing a great deal, lately, of war and wars, some fairly real, like the attacks on Afghanistan and Iraq, some abstract and hypothetical – with the hypotheses stretched to the limits – like the notion of “World War IV,” apparently defined as a crusade against the third religion of the Book. The arrival of a “war,” real or hypothetical, inevitably calls forth the claim that all manner of things may be done under the government’s “war powers” – sometimes further abstracted into that colossal, single thing, “the war power.”

It is my purpose in what follows to raise a few reasonable doubts about the premises, internal coherence, and consequences of certain doctrines, which are much with us of late. Perhaps, in the end, the ideological structures of absolute sovereignty and endless war powers are sound. Maybe, we should all become believers. I think, however, on the evidence to be reviewed, that we shall at least wish to return a Scottish verdict of “not proven” with regard to those large claims.

II. Liberty vs. Security and Other Phony Balancing Acts

One currently popular rhetorical device holds that during a war, we must sacrifice liberty to security, thereby creating the proper “balance” so that the war may successfully go on. Presumably, the necromancers on the Supreme Court will calibrate the balance, down to the smallest foot-pound of applicable force, and we shall then go our merry way. Closely allied to this high-wire act is the boneheaded slogan, “the Bill of Rights is not a suicide pact”; which is certainly true on the face of it, since it is called the first thing and not the other. We shall come back to “suicide pacts,” anon.

Now, my purpose here is not so much to find definitive answers, as to raise questions along the following lines: Do the boundless war powers or war power (singular) exist? We can see there are a great many trained persons under arms, who take orders, and so on, and who can physically do whatever it is their superiors, civilian and military, can get away with ordering them to do. But still, can any of those superiors make a decent argument as to why anyone in his right mind ought to believe, or would believe, or wish to believe, that such deeds and the war powers supposedly licensing them, by right exist, should exist, or even can exist?

Why not – as my colleague Jeff Tucker asks – invoke, say, “the murder power” or “the theft power” as they go about their activities? On the face of it, it would make as much sense. Who can reasonably say that these war powers exist – except as examples of lawyerly flimflam, successful usurpation, and unpunished crime?

The usual view of the matter was stated by J. Allen Smith in 1930: “By the unchecked act of the government, the country may be placed in a state of war. Constitutional restraints upon governmental authority are then relaxed or entirely suspended. The government as such becomes for all practical purposes supreme….” [2] I merely note in passing the obvious moral hazard, that, if the state can multiply its powers by finding a war, and also has the leeway to go around finding one, one might expect that political leaders wanting greater powers might well go around looking for wars in which to involve their country.

One begins to see the worth of Thomas Paine’s comment in The Rights of Man: “In reviewing the history of the English Government, its wars and its taxes, a bystander, not blinded by prejudice, nor warped by interest, would declare, that taxes were not raised to carry on wars, but that wars were raised to carry on taxes.” [3]

But, again, why should this be the case at all? Why should we take such a state of affairs to be self-evidently logical, reasonable, or right? And if, indeed, such powers do arise, what then would be their sources or ground? The legal website findlaw.com has this to say:

Thus, some authorities have argued that the war power arises as the sum of constitutional provisions dealing with war. Abraham Lincoln’s famous card trick – combining the commander-in-chief clause with the clause enjoining the President to enforce the laws – is a novel form of this claim. Of this trick, Raoul Berger writes: “when nothing is added to nothing the sum remains nothing.” [5] Others put their money on sovereignty, as defined by Sir William Blackstone, namely, that “in every state, there is and must be a supreme, irresistible, absolute, uncontrolled authority, in which the rights of sovereignty reside.” [6] In Britain, this “uncontrolled authority” was held to rest with Parliament (technically, the “King-in-Parliament”).

But however the war power or powers spring forth, what is their reach? The friends of the war powers say they reach life, liberty, property – and who knows what else. They justify taxes, conscription, suppression, down to destruction of the whole society, that is, down to total war waged internally in the name of total war externally. [7] This nods toward the total subordination of everything and everyone to the state’s felt need for survival or, alternatively, its felt need for outward expansion in the name of its survival.

According to Black’s Law Dictionary, “War power of [the] federal government is the power to wage war successfully…. It embraces every aspect of national defense, including protection of war materials as well as members of armed forces from injury and danger…; but direct interference with liberty and property and abridgement of constitutional guaranties of freedom can be justified under the ‘war power’ only where the danger to the government is real, impending and imminent.” [8]

To anticipate a bit, the war powers seem a near-complete inversion of the program of American liberal republicanism. If so, use of them, and even belief in them, would be odd ways to bring about those ends; for why should powers invoked, the better to fight an external enemy, give to our rulers powers over us – powers which the external enemy cannot wield – and may not wish to wield – that is, powers over the citizens allegedly being defended? Who, indeed, is at war with whom?

III. War Power: American Theory and Practice

How vast are the scope and range of the cosmic “war powers” enfolded within the war power? Are they, like the universe, big and wide, covering up the whole outside? Or is the whole game just a well-wrought rationalization for whatever it is that the government just got away with, in a recent war, or aspires to get away with in a new one?

One authority more or less concedes that the latter question should be answered in the affirmative. William A. Dunning, a once-celebrated historian of political theory, trying to torture a coherent theory out of the Lincoln government’s practices, two decades after the end of the American “Civil War,” wrote, “the basis of the government’s war power was held to be the necessity of preserving the Nation. The limit of its application was not the clear expressions of the organic law, but the forbearance of a distracted people.” [9]

Whether or not the war power hovered overhead as a kind of Platonic form, Americans certainly fought, killed, and died, on some basis, during the American Revolution. To the extent they felt a need to have a theory of the war, they fell back on English history and legal precedent, along with contemporary political theory. After the war, much ink was spilled in arguments over who had actually possessed “the war power” during the Revolution – the Congress, the states, or both together?

Certainly, armies had been raised, battles fought, and enemy property confiscated. Whether it follows that all this had happened under the umbrella of some thing or thing-cluster – best understood as a self-evident war power – is quite another matter. In Ware v. Hylton, 1796, the US Supreme Court addressed some of these issues. The case had to do with wartime confiscations in Virginia, and the Court drew great circles and arrows around the problem. Virginia had exercised war powers, but so had the Continental Congress, said the Court, without bringing much clarity to the discussion. [10]

If things were a bit sketchy during the Revolution, the Constitutional Convention did not shed much light, either. There, the chief controversy was between entrusting Congress with “declaring war” (the terms actually adopted), as against “making war.” The nature, scope, and extent of any imagined war powers went largely mentioned.

The same thing is in the Federalist Papers. Alexander Hamilton, James Madison, and John Jay deliberately played down the powers they believed to be granted in the new Constitution. Occasionally the mask dropped, since one point alleged in favor on the new “paper” was that the new government would more effectively provide for the common defense. Thus, Hamilton writes in No. 23:

But even as they sought to reassure their opponents, the Federalist literary triumvirate built themselves an escape hatch whereby the powers of Congress could be viewed as “enumerated objects,” a list of suggestions, or things on which Congress could legislate, rather than as enumerated powers. Powers abounded, by implication, even if the objects of lawmaking were listed. In later years, Hamilton maintained this view, while Madison retreated from it.

It was Antifederalists like Patrick Henry who saw the war power as an unbridled danger looming up from within the proposed Constitution. Warning his audience in the Virginia ratifying convention away from the new “paper,” he said, “[a]mong ten thousand implied powers which they may assume, they may, if we be engaged in war, liberate every one of your slaves if they please.” [12]

Now what interests me here is not that last item – calculated to disturb Henry’s hearers – in itself, but the “ten thousand implied powers” that might be claimed to leap forth from the war power. It is not my purpose to defend an institution and form of property imposed on the colonies by the British crown, but to draw attention to the scale of the confiscation to which Henry alluded. If that much property can be confiscated “under the war power” – precisely what Lincoln claimed to be doing in 1863 – why cannot some later government seize the car industry, the entertainment industry, and all of healthcare, at the same time, under the same power or powers? Why could it not seize half, two thirds, indeed all, of the economy, all the people, and all their chattels and real estate? [13]

On the doctrine, as preached by its friends, it could do all that – gleefully citing Marshall, Lincoln, Justice Holmes, and a hundred other apologists, as it goes. There is no reason to be a good sport about these implications. It is time to raise questions, even if we shall not get good answers short of finding them ourselves.

President Truman did seize the steel industry during the Korean War, although the Supreme Court held against him without managing, however, to shed much light on the actual limits and dimensions of the war power

It is worth mentioning, along the way, that there was also much discussion, during the ratification debates, of the Constitution’s provisions on the state militias, a discussion carried out partly within an inherited language disfavoring “standing armies.” Given that many liberal republican thinkers shared, rather unfortunately, certain assumptions with Thomas Hobbes, it was important to debate the military structure of the new union. After all, if war powers of unknown scope possibly – or even necessarily – existed, it was only common sense to limit the number of men under arms. [14]

IV. The War-Power Concept in the Early Republic

Some writers have held that deductions from sovereignty shore up and hallow the war power or powers. John Taylor of Caroline asked whether this was true or not, in his critique of John Marshall’s judicial nationalism in the banking case. In Construction Construed and Constitutions Vindicated (1820), Taylor sought to refute not just Marshall’s decision in McCullough v. Maryland, but also his entire way of reading the Constitution, and with it, his whole political philosophy.

Taylor writes: “The unknown powers of sovereignty and supremacy may be relished, because they tickle the mind with hopes and fears; just as we indulge the taste with Cayenne pepper, though it disorders the health, and finally destroys the body.” But, in truth, he continues, “the term ‘sovereignty,’ was sacrilegiously stolen from the attributes of God, and impiously assumed by kings. Though they committed the theft, aristocracies and republicks have claimed the spoil.” [15]

I have underscored the last sentence, because it goes to the heart of the thing.

“[T]he doctrine of absolute sovereignty,” Taylor writes, “with its indefinite catalogue of appendances, can adduce in its defence many plausible arguments, and enumerate sundry conveniences which might result, from its unlimited capacity to devote both persons and property to whatever purposes it may think proper. What conveniences may arise from the absolute subordination appertaining to it, in war!” But this seemed to have little to do with the actual Constitution, for “[i]f congress possessed an unlimited power to appropriate the publick money raised by taxes, there was no occasion to specify the objects to which it might be applied, such as to raise and support armies, to provide and maintain a navy.”

If we were to follow Marshall’s lead, says Taylor, “[a]s ends may be made to beget means, so means may be made to beget ends, until the co-habitation shall rear a progeny of unconstitutional bastards, which were not begotten by the people….” Great chains of reasoning would lead such conclusions as these: “Roads are necessary in war; therefore congress may legislate locally concerning roads.” In the same way, horses being even more essential for war, “an implied power of legislation, will certainly invest congress with a legislative power over horses.” [16] (Marshall, of course, had cited the war power as one possible source of an implied power to charter the Bank of the United States. [17] )

In Taylor’s view, Americans had never signed on for international jurists’ theories of absolute, unitary sovereignty from which such wonderful deductions could be made. Instead, they had instituted strictly limited governments, answerable to the people, governments that were mere trustees or agents of the people. [18] Thirteen such political societies had further contracted to create a common agent for certain limited ends. Sovereignty in the European or Blackstonian sense never came into it.

Four years after Taylor wrote, John Randolph of Roanoke, speaking in the House of Representatives, asked to know the constitutional basis of proposed survey in aid of federal canal and road building. The bill seemed to rest on “vagrant” powers “seeking a settlement under the war-making power. And under this power to make war, sir, what may we not do? Quarter troops upon you; burn your house, sir, or mine; burn your own ships and your navy yards, that the enemy may not have the pleasure of doing it.”

“When,” he continued, “he considered this war-making power, and the money-raising power, and suffered himself to reflect on the length to which they go, he felt ready to acknowledge that, in yielding these, the States have yielded every thing.” [19] Randolph alluded to Henry’s warnings in the Virginia convention.

What Henry and John Randolph of Roanoke warned against, Yankee politicians like John Quincy Adams soon offered as threat. [20]

To give the flavor of the war power, as seen by its hangers-on, let us attend to John Quincy Adams threatening the Southern states in April 1842:

Another omen came with the so-called Dorr War in Rhode Island, an event fraught with consequences for the emerging war-power discourse. Very briefly, Rhode Island was governed under its colonial charter well into the 19th century. A restrictive franchise, together with failure to reapportion legislative districts, meant that the charter government had become highly unrepresentative. At the beginning of the forties, a democratic mass movement led by such radical proponents of popular sovereignty as Thomas Wilson Dorr drew up a new constitution and submitted it to a popular vote.

Believing they had made their point and carried through a peaceful revolution, these “Suffragists” then organized a government, much to the dismay of the standing government. The latter, assured of federal support by President John Tyler, proclaimed martial law and began arresting Suffragist leaders. [22]

In 1849, the US Supreme Court decided a case arising from an instance of forcible entry and search during the Dorr War (1842). In Luther v. Borden, Chief Justice Roger B. Taney, denying the petitioner a remedy, reasoned as follows:

In his dissenting opinion, Justice Levi Woodbury said of martial law, that if left

Even before the Court ruled on the Dorr War, the Mexican-American War (1846–1848) had raised the stakes. Congress naturally had occasion to debate war powers a bit.

Congressman Robert Barnwell Rhett of South Carolina opined that a conqueror was, “a despot; he might do what he pleased – might cut off the head of a judge if he pleased.... So far as the law of nations was concerned he had a legal right to do his pleasure.” After all, inter arma leges silent, though Congress might judge the commander in chief’s acts after the fact.

In a precedent soon to see widespread use, General Winfield Scott established the first US military commissions – in occupied parts of Mexico. He was left somewhat unsupported in this by the Polk administration, which apparently feared that its Jacksonian mass base would react badly at any sign of martial law, even in foreign occupied territory. [25] Whether or not Scott’s courts supplied the kind of law for which Congressman Seddon pleaded – any more than his successors supply it in Iraq – may be left to one side.

VI. War Powers Without End: 1861–1877

In the “Civil War” (1861–1865), the vast, illimitable war power rose to new heights in word and deed, and continued on through Reconstruction, after which even they needed a break.

Benjamin Robbins Curtis, who had served on the US Supreme Court, 1851–1857, and written a dissenting opinion in the Dred Scott case, emerged as a critic of President Lincoln’s theory and practice. In a pamphlet published in 1862, Curtis noted that, Lincoln’s various proclamations

Curtis rejected Lincoln’s claim that he had found such powers in the commander-in-chief clause. He writes: “It must be obvious to the meanest capacity, that if the President of the United States has an implied constitutional right, as commander-in-chief of the army and navy in time of war, to disregard any one positive prohibition of the Constitution, or to exercise any one power not delegated to the United States by the Constitution, because, in his judgment, he may thereby ‘best subdue the enemy,’ he has the same right, for the same reason, to disregard each and every provision of the Constitution, and to exercise all power, needful, in his opinion, to enable him ‘best to subdue the enemy.’”

Did military law supply the answer? Curtis thought not: “It has no control whatsoever over any person or any property of any citizen.” On martial law, he quoted from Justice Woodbury’s dissent in Luther v. Borden, already noted above.

Curtis conceded that, once war is declared, power existed to carry on the war, but added that, “this implied authority must find early limits somewhere. If it were admitted that a commanding general in the field might do whatever in his discretion might be necessary to subdue the enemy, he could levy contributions to pay his soldiers; he could force conscripts into his service; he could drive out of the entire country all persons not desirous to aid him; – in short, he would be the absolute master of the country for the time being.” In Curtis’s view, “[n]o one has ever supposed – no one will now undertake to maintain – that the commander-in-chief, in time of war, has any such lawful authority as this.” [27]

Of course by supporting the war at all, Curtis had somewhat compromised his position. As for those who strongly supported the war and wished it carried on by all possible means, the main quarrel in their camp was between those who believed that Abraham Lincoln possessed the plenary and ineffable war powers and those who found them wholly entrusted to Congress. Senator Charles Sumner of Massachusetts was among the latter. Expounding the war powers, he said:

Elsewhere, Sumner said, of the claim that the President possessed the war powers, that, “a pretension so irrational and unconstitutional, so absurd and tyrannical, is not entitled to respect.” [28] Evidently, then, one despot would be unbearable, but several hundred, calling themselves Congress, just the thing. Lincoln himself had taken much this same position in relation to President Polk’s management of the war against Mexico. [29]

Whoever properly owned the incredible, expanding war power, if it indeed existed, the minions of the United States – from1861 through the end of Reconstruction in 1877 – undertook all manner of confiscations of private property, enacted conscription, levied new and unprecedented taxes, issued legal-tender paper money, suppressed freedom of speech, assembly, and the press, undertook censorship, suspended the right of habeas corpus, imposed loyalty oaths, and more.

In exculpation of Lincoln’s part in the piece, a 20th-century commentator, Andrew C. McLaughlin, offers us this: “What prevents [arbitrary arrests] becoming the foundation of a despotic government or from being used with crafty cruelty and high injustice? Once again it is the conscience, the moral attitude, the sense of civic duty, and the respect for law in the breast of the man who wields this enormous and dangerous power….” [30] If this argument from Lincoln’s Goodness has not reassured everyone, McLaughlin adds that “Lincoln sought not to magnify the office or to disregard the Constitution but to save it.” [31]

“Save it”! The Constitution was still in force in the North, over such states as still tarried under it, and a very similar one was in force in the South. Thus, the survival of the Constitution as such seems hardly to come into it.

VII. ‘Martial Law’: As Beclouded as the War Power Itself

Now that martial law has intruded itself into our subject as part of, alongside, or possibly merely adjacent in legal-fictional space to – the war power or powers, it is time to say a little on that chaotic topic. In 1928, Charles Fairman wrote, “one is bewildered by the haze of uncertainty which envelops the subject.” He noted five distinct uses of the term, which added to the confusion. He argued that “martial rule” would be a more accurate term for the practice. [32]

Edward S. Corwin, whose life’s work it was to assert that English liberty was alive and well in the United States after 1865 or even 1917, notes that “[t]he Petition of Right of 1628 forbade ‘commissions of martial law.’” There matters largely stood until Luther v. Borden, which endorsed martial law to meet a state-threatening crisis. In Ex parte Milligan (1866), the US Supreme Court held, that “[m]artial rule can never exist where the courts are open, and in proper and obstructed exercise of their jurisdiction. It is also confined to the locality of actual war.” [33]

Oddly, “courts were open” in Georgia, Texas, South Carolina, etc., the whole time Lincoln’s administration was invading those states and developing martial law, but that, too, is by the way.

In further post-war cases, the US Supreme Court upheld wartime confiscations and other measures, but did not address the question of martial law again. Much later, in the case of Wilson v. New (1917), the Court ruled that “although an emergency may not call into a life a power which has never lived, nevertheless emergency may afford a reason for the exertion of a living power already enjoyed.” [34] Even allowing for the full array of emanations and penumbras flitting about in the judicial belfry, it is hard to say what that might mean, unless perhaps that martial law is permitted. We shall have enough to do with World War I, directly.

Wigfall Green tells us that, “Common law authority for the military commission is derived from the law of war.” He quotes Chief Justice Samuel Chase’s dissent in Milligan, where that Lincoln mouthpiece reasoned that power to carry on the war “‘necessarily extends to all legislation essential to the prosecution war with vigor and success…’” He then adduces William E. Birkhimer’s treatise on military government, where we find that, “‘the authority of the President, and of commanders under him, for the establishment of courts in conquered territory is complete….’”

This last item seems to mean that if the President can institute military courts out of hand, then every place within US boundaries – “loyal” or disloyal – is in some sense conquered territory in relation to the people’s agents and servants. Now Green brings forward the opinion of an unnamed, later Attorney General: “‘Many of the offenses against the law of nations for which a man may, by the laws of war, lose his life, his liberty, or his property, are not crimes….’” [35]

This is stark indeed, even if a little unclear, and implicitly raises one of my standing questions, that is, whether the “laws” of war have much to do with law in any useful sense of the word.

The same starkness of doubtful doctrine is found in a strikingly anti-Southern piece written by William A. Dunning in 1886. [36] Working overtime to justify of Lincoln’s measures, he writes:

In a discursive essay published in 1888, Sydney G. Fisher squared even more circles. His task was to prove that the US Constitution rests on a strict enumeration of federal powers and that yet, somehow, Lincoln’s war measures all fell within those. These absurdities need not keep us long. Some of his comments along the way are quite interesting, however.

Thus, he observes, that “[h]e who declares martial law has already an army with which to enforce his decrees…. Events are stronger than the constitution and stronger than constitutional law.” He remarks in a footnote, “Washington fought the seven years of the Revolution to a successful end, and never made use of martial law at all” – without, apparently, drawing any lesson. Having wrestled at length with his thankless task, he ends by writing, “every Government, when driven to the wall by a rebellion, will trample down a constitution before it will allow itself to be destroyed” [39] – leaving the lawfulness of the measures treated as much in doubt as when he began.

Historian George Dennison writes that martial law had always had a few defenders in the United States, because “[t]he pragmatism of the frontier experience combined with prerogative instrumentalism attracted some advocates all through the years from 1787 to 1840.” Among the friends of martial law, we find, not surprisingly, General Andrew Jackson, who proclaimed it in New Orleans in 1814 and arrested those who denied he could lawfully do it. But Jackson found few supporters and was later fined by a judge he had arrested. After the Dorr War and the Mexican War, “by the mid-fifties men on all sides defined martial law as the necessary power of all governments facing challenges of any kind. Instrumentalism of the most positive form pushed aside the older fear of discretionary power.” [40]

Some writers seem to set martial law somewhere outside the fabled, conventional war power. Doubt seems to exist whether or not martial law arises from, or runs parallel to but separate from, that vast sink of raw power. But no less a figure than Union General Henry Halleck wrote that, “[m]ilitary commissions… are established by the President by virtue of his war power as commander-in-chief, and have jurisdiction of cases arising under the laws of war.” [41]

Interestingly, full-blown martial law does not seem to have existed either in the United States or Britain at the beginning of the 19th century. If measures were taken to suppress riots or repel invasion, they were said to come under an ordinary common law right, ordinary law was not “suspended,” and courts could at least inquire later into what the authorities had done. The well-known 19th-century British jurist A. V. Dicey grounded emergency measures “upon the common law rights and duties of the subject rather than upon any official prerogative” [42]

Americans were lumbered with the new conception of martial law, partly via Taney's ruling on the Dorr War and because Winfield Scott established military tribunals in occupied Mexico. In the British case, martial law was not rehabilitated until the Boer War, [43] which is very interesting in terms of legal-institutional “blowback” from imperial policy. The lesson seems to be this: if you actually want to keep your vaunted Anglo-Saxon liberties, you should go to war only in genuine local self-defense.

VIII. The War Power in the Age of Empire

We may pass over the use of war powers in the Spanish-American War of 1898. Suffice it to say that President William McKinley’s use of allegedly available prerogative powers took place mostly overseas, in newly acquired possessions such as the Philippine Islands. [44] World War I was very different, representing a massive leap forward in state power.

In an article published in 1924, Richard E. Eliel compared the erosion and eradication of civil liberties under the war power in the “Civil War” and World War I, the latter still fresh in the public memory. He writes that the Lincoln administration suspended constitutional guarantees out of hand, but had not crafted any very consistent theory of its actions. By contrast, the administration of Woodrow Wilson sidestepped the disputes of the 1860s, which arose between Congress and the Executive, because a rabid and war-crazed Congress legislated everything that Wilson and his subordinates could have wanted.

Congress “delegated” a vast array of weapons to be used against the American people and their paper-thin “constitutional rights” – weapons to be wielded under the war power, whether the latter rationally existed or not. Also in contrast to Lincoln’s practice, a citizen unlucky enough to be caught in Woodrow’s dragnet, would get his day in court – for all the good it did him. The courts were as rabid and war-crazed as Congress, and did their level best to ensure that all constitutional provisions that seemed to limit governmental power were smashed into tiny shards. [45]

Thus, a contributor to a law review could write in 1918 that, if “the war power has been fettered by provisos which put the liberty of the citizen above the safety of the state, then either the experiment of self-government will prove a failure or the chosen leaders of the people must, when necessary, disregard mere paper barriers…. It would be wiser to adopt that interpretation of the fundamental law which legalizes whatever imperative necessity compels.” [46]

This is precisely what the courts undertook to do, namely, to rationalize wartime actions of the administration which were, on the face of them, violations of the Constitution, as exceptions or implications of unknown emergency powers inherent in the nature of a state, mysterious powers “under” or “outside” the Constitution (doubtless both), as Sumner had said, but nonetheless available to any hysterical public official or private home-guardist who saw someone, somewhere, failing to adopt the most abject posture of instant obedience, in relation to Wilson’s New State.

The courts did their work with a vengeance and ruthlessness, which may, indeed, have overshot even the bad intentions of Congress, which had passed various draconian sedition and security acts. Acting under the doctrines (among others) of “bad tendency” and “remote bad tendency,” the courts sentenced people to prison terms of ten years or more for such desperate crimes as saying, in a private conversation, that socks knitted for the army by little sewing circles never actually got to the soldiers. Such decisions involved a chain of “reasoning” in which speech or writing that might conceivably discourage someone from enlisting in the armed forces constituted a dangerous undermining of the war effort, which by another stretch of the imagination might prevent “victory,” which by a further imaginative stretch might lead to the triumph of the Kaiser, which would lead to the creation of a repressive German regime on our shores, a regime certain to be almost as ironhanded as the one being created by the Wilson administration itself.

In one case, a “man was given a long term for declaring that the war should have been financed by taxation instead of by bonds, on the ground that his words tended to discourage the buying of bonds” and an “argument against the constitutionality of the Draft Act… was punished with twenty years.” Eliel writes, rather mildly, that under such circumstances, “almost any opinion can be found to have some bad tendency in it, particularly by an overwrought and hysterical judge and jury.” [47]

I cannot recount more of these legal follies here, although another writer mentions “the weird case in which a woman was convicted for saying she wished Woodrow Wilson were in hell” [48] – an opinion shared, as of 1920, by the vast majority of the American people.

If there were any “bad tendencies” abroad in the land, remote or otherwise, they were flowing from the Wilson administration and Congress.

William A. Dunning rationalized Wilson’s wartime dictatorship: “President Wilson’s authority, actually exercised, surpassed in variety and scope the wildest dreams of 1861–1865. He had almost unrestricted control not only of the entire man-power of the nation but also its commerce, industry, finance, and transportation. Even the food and health of the people were subject to his supreme regulation.” Even so, Dunning can write complacently that “our latest war, with all its complexities, had no ‘political prisoners’ or ‘prisoners of state,’ no military arrests, and no suspension of the habeas corpus.” (As far as “political prisoners” go, one wonders where this man was living during the war!) Further: “The spirit and record of the Wilson administration must give much satisfaction to those who seek an abiding reign of law.” [49]

Certainly, that record will satisfy those who can think that a rule-following despotism embodies the Rule of Law. By contrast, Robert Nisbet writes: “The blunt fact is that when under Wilson America was introduced to the War State in 1917, it was introduced also to what would later be known as the total, or totalitarian, state.” [50] Certainly, US wartime legislation and “jurisprudence” call to mind, as much as anything, the French Revolutionary “law of suspects” of 1793.

Someone with a critical turn of mind might indeed wonder if such rules as Wilson, the Congress, and the courts contrived during World War I, were not – in respect of the rights and liberties of the people – a bit more of a “suicide pact” than the Bill of Rights is sometimes said to be, if taken too seriously. If those rules and laws were constitutional, then the Constitution itself, and not the first ten amendments, owes us some answers.

World War II repeated the industrial mobilization, “war socialism” (actually, corporatism), and repression of the First World War, and at higher levels of production. There was less dissent to suppress, because the Pearl Harbor attack cut off debate, naturally enough, and because people who had lived through Wilson’s reign of terror already knew what could happen to them. The second war gave us total war, nuclear bombs, and an attendant cult of Big Science and state secrecy.

Forty some years of Cold War made for a permanent state of partial mobilization within which state power could expand and prosper with little opposition. “Vagrant powers” – to use John Randolph’s phrase – abounded, and with them a willful blurring of the distinction between war and peace. As E. C. Stowell wrote in 1908:

Further, it may be that we don't debate “martial law” and other emanations of the war power much these days, precisely because, with standing police forces and bureaucracies, modern states have most of the surplus powers that kings had to scare up through a war, war scare, or state-of-siege. Consider that in Luther v. Borden (1849), the plaintiff complained that the charter government of Rhode Island sent men to break into his house, search it, and apprehend him.

Now, practically any social worker, snoop, building inspector, and the like, from the city, the county, the state, or the Feds, could probably do all those things, as part of normal procedure. To that extent, followers of Jürgen Habermas are right about the “colonization of the lifeworld” by the law, even if they get rather low mileage out of the insight. [52]

A recent essay by William E. Scheuerman is interesting in this regard. He writes that, “the scope of economic emergency powers has increased significantly in most liberal democracies since the nineteenth century. Initially a mere supplement to wartime emergency powers, executive-dominated emergency economic regulation now represents a more or less permanent feature of political life...” [53]

This and related matters have brought us by now to an historical search for the beginnings of the war power, a quest which is intertwined with the invention of sovereignty.

X. The War Power Over Time, Or How the State ‘Suicide Pact’ Arose

The great constitutional historian C. H. McIlwain sees “in Rome… the first actual ‘sovereign.’ We should probably have had at the same time a definite theory of sovereignty to account for this fact if the jurists of the Empire had possessed a capacity for political speculation commensurate with their genius in formulating the specific rules of law.” [54]

With the implosion of centralized Roman authority in Western Europe in the fifth century A.D., a new order arose characterized by “relative sovereignties.” This pluralism was the crucial factor in the emergence of freedom and capitalism in Europe. [55] In addition to complicated sets of overlapping and conflicting “feudal” jurisdictions, the Middle Ages witnessed ongoing conflict between local authorities, the Christian Church, and the oftentimes largely theoretical German Empire.

The medieval order, then, had to get along without the notion of a single sovereign will binding all others. As McIlwaine notes, “the main obstacle” to a theory of sovereignty “was twofold: the prevalence in the middle ages of the theory of dominion and the absence of any clear notion of legislation. What characterizes the modern ‘sovereign’ is supreme authority to make law.” [56]

Bertrand de Jouvenel writes that the idea of a unitary Sovereign Will, from which all law and government flow, “is a quite modern growth.” In medieval Europe, “men had a very strong sense of that concrete thing, hierarchy; they lacked the idea of that abstract thing, sovereignty.” Thus, a territorial ruler had a kind of “superiority,” but no sovereignty in the modern sense.

The problem for the historian, de Jouvenel says, is to see how “the right of the sovereign” in the older sense, i.e., “a limited right standing guard over other rights, was transformed into an unlimited right, author of other rights at will.” The limited “sovereign” was supposed to protect existing rights and properties, not reinvent or abolish them. Ambitious rulers, however, sought a “plenitudo potestatis,” a fullness of power; but “a long road stretched before them, for it was necessary to destroy all other authorities than their own. And that pre-supposed the complete subversion of the existing social order. This slow revolution established what we call sovereignty.” [57]

In this quest, aspiring kings of the later Middle Ages were aided by a revival of Roman legal concepts and new Aristotelian language with which to discuss political issues. A law of corporations had arisen to deal with the activities of religious orders, guilds, and so on, and kings took its categories over, in order to give kings (or states) a real, legal “personality.”

Robert Eccleshall notes that, towards the end of this take-over, Richard Hooker “had been influenced by the medieval assimilation of political society to a corporation in which authority was said to reside with the collectivity of the members.” [58] Theorists could now assert that the state was the most inclusive “universitas,” or corporate body. No one could withdraw from this “corporation” without permission.

The revival of the classical notion of a duty to die for the state was probably an even more important development. Ernst Kantorowicz notes that in Greece the “quasi deification of war heroes was fully developed by the fifth century B.C. at the latest.” Later, there came into being a “huge complex of ethical values which in Rome were inseparable from the death pro patria and which later were revived by Petrarch and the early humanists, with their new standards of civic virtues and merits.” In the Middle Ages this complex was noticeably absent, and “whatever ‘patria’ may have then designated,” the word “had lost its religious flavor and semireligious connotations.” [59]

Instead, as Kantorowicz writes, from Carolingian times forward, there had grown up the notion of the corpus mysticum – the mystical body of the church – for which it might, at times, be rightful to sacrifice one’s life. As early as Philip IV’s campaign in Flanders (1300), kings began claiming this idea for themselves. The kingdom was a corpus mysticum, too, and subjects had a duty to die for it. When the Norman Kings of Sicily were able to institute routine taxation pro defensione regii (“for defense of the realm”), they seem to have hit upon the original “war power.” [60]

In another significant step, declarations of war came into being, bearing broader claims to extraordinary powers. Wars announced by the proper authority were now public wars, into which all subjects could, and must, be dragged. Georg Schwarzenberger writes, that

The new doctrine of bellum publicum delegitimized “private” armed conflicts. “In this light,” Schwarzenberger adds, “the insistence of naturalist [natural law] writers on the need for a declaration of war receives a new meaning. Sovereigns did not so much consider this prerequisite of a just war as a burdensome limitation on their freedom of action, but as a golden opportunity of transforming their de facto monopoly of physical force into a de jure monopoly. The duty of the prince to guard the community against the danger of illegal war was bound to strengthen his claim to undisputed and exclusive authority in matters of peace and war.” [61]

Another authority writes, that a “declaration of war creates the legal status of war” and quotes Lord Stowell (1908) to the effect that it also “puts the other party also into a state of war.” [62] At this point, the vast and cosmic war powers – real or pretended – spring to life, and are, of course, “legal,” since a declaration justifies itself and its consequences.

Overlapping in time these developments, were the writings of numerous partisans of the absolute “sovereignty” of the rising, centralized monarchies, or states. These paladins included Bartolus of Sassoferrato, Nicolò Machiavelli, Jean Bodin, and Thomas Hobbes. The new notion of ironbound, unitary sovereignty descended to the American founders and beyond, by way of Blackstone, among others. The early expositions of sovereignty coincided with, and served the needs of, states and state-building wars from about 1493 onward. [63]

Thomas Hobbes was widely damned in his own time by his countrymen, but his model of absolute sovereignty founded on a one-time-only, irrevocable “social contract” was quietly brought into mainstream of English thought. Richard Ashcraft writes: “With suprising alacrity, liberalism consolidated its political gains, modified the sharpness of its rhetoric, and found a place of importance within its arsenal of defensive ideological weapons for Hobbesian man.” [64] And Quentin Skinner adds: “By an extraordinary irony the absolutist argument was to be covertly revived by the whigs themselves, to take its place under heavy camouflage within the eighteenth century Pantheon of Lockean liberalism.” [65]

Over a couple of centuries and in the larger pan-European arena, a series of naturalist writers on international law – Suárez, Vitoria, Grotius, Pufendorf, and Vattel – extended the career of jusnaturalist [natural-law] political language, but undermined it from within. Schwarzenberger observes, that in their efforts to be realistic and relevant, these writers made “natural law… subservient to the reason of state” and “conveniently lent their authority to the thesis that some rather disconcerting passages in the Gospel on war were not to be taken too literally, and that war, provided it was just, was authorized, both by divine and natural law.” Even worse, “[t]he insistence of naturalist writers on the element of bellum publicum [public war] in their definitions of war corresponds to the interests of rising absolutism, as does their postulation for a declaration of war. Therefore, during the period of early absolutism this part of their doctrine meets with the full approval of State practice.” [66]

Blurring any distinction between soldiers and non-combatants, the celebrated Hugo Grotius could write, that the “right of killing enemies in a public war and other violence against the person extends not only to these who actually bear arms, or are subjects to him that stirs up the war, but in addition to all persons who are in the enemy’s territory.” [67] The practice of states was taken for “law,” on the Continent and in the British Isles alike.

It is a good guess that the wars by which English invaders tamed the Celtic areas, were a significant wellspring of bad precedents, which grew like weeds in the otherwise well-tended garden of English law. Practices thus enshrined included, among other things, the claims that mere state assertions of ownership established “legal” sovereignty over others’ territories, that conquest settled legal “title,” and that enforcement of these legal “facts” by sieges, mass murder, and deportations constituted “justice.” [68]

Total war did not need to wait until the 20th century for its basis in theory. The Anglo-Normans’ wars on the Celtic periphery involved martial “law” and other stern measures, which were not exactly law, and these rested in turn on the emergent “laws” of war, which do not look much like law, either. The English even put forth, in Ireland, the modern claim, that a vicious war with no quarter “saves lives” by making for a shorter war. [69] Unlike more recent proponents of this view, however, these enterprisers did not pretend that technology drove them to total war. It worked and they liked it.

Republican governments took over these good works from kings, and liberal regimes rather uncritically took up the republicans’ burden. As Nicholas Greenwood Onuf writes, “the passage from republicanism is also a passage to states as we now know them. Liberalism and the impersonal state both resulted from a complex process of social and conceptual change, not under the aegis of the state (which had yet to come into its own), but under the aegis of republicanism.” [70]

Somewhere in the course of these transitions came the secession of thirteen British colonies from the empire.

Relative to continental thinking on sovereignty, England had lagged a bit behind, and its North American colonists stood even farther behind. Quasi-feudal decentralization and weak administrations worked in Americans’ favor, as far as their practical liberties were concerned. But whatever ideological and practical advantage the American colonists enjoyed by virtue of backwardness, it was not enough to inoculate them forever against the viruses of unrestrained sovereignty and unknowable war powers.

We see this already in the “founding” period of the Republic, where an overtly Lockean but inwardly Hobbesian outlook was the main framework of debate, a debate that left the war power (not to mention sovereignty) in a rather unsatisfactory state of gross mystification and disarray. James Madison and others compounded existing confusions by adding new ones. Meanwhile, executive officers worked at finding out what they could get away with, appealing to various justifying ideas, as needed.

While American theory and practice was perhaps bad enough, later statements about sovereignty from Europe did not help – unless as mere description. G. W. F. Hegel, for example, viewed war as the state’s most state-like “moment” – but affirmed and approved of war, precisely because of this relationship.

These notions crossed the Atlantic, where they crossed with similar, homegrown strains. Francis Lieber, German immigrant, political theorist, and legal advisor to Lincoln’s War Department, contributed to this unfolding. He wrote, that

Lieber’s contribution to the war power, specifically, was as author of General Orders #100 in 1863. This code, often taken as a statement of humane rules of warfare, was in fact a manifesto of positive law thinking. As Frederick Bonkovsky observes, the “radical nature of positivist law is perhaps best revealed in the centrality it grants to necessity of state or, as it is called in law of warfare, ‘military necessity.’” In practice, “seeming prohibitions” like Lieber’s “have the chief effect of painting a veneer of moral limitations where, in fact, nothing other than reason of state exists.” Thus, “Lieber’s positivism prohibits private crimes. If performed by an agent of the state, literally any practice is allowed.” [73]

Former US Congressman James A. Seddon, in his capacity as Confederate Secretary of War, made the same observation. He wrote that “in this code of military necessity… the acts of atrocity and violence which have been committed by the officers of the United States, and have shocked the moral sense of civilized nations are to find an apology and defense.” Further: “They cannot frame mischief into a code or make an instituted system of rules embodying the spirit of mischief under the name of military necessity.” [74] But this sort of thing must be expected, one supposes, where people have signed on for modern sovereignty and vast war powers.

Taking his definition from a British authority, Albert T. Lauterbach wrote in 1944 that, “sovereignty implies essentially a claim to use violence within a specified area of the earth’s surface over all persons thereon.” [75] With this claim, come all the other claims and implications: Oneness of will, “allegiance” owed, loyalty oaths to be sworn to the sovereign (i.e., pre-emptive entrapment), whether king or bureaucratic machine; and, finally, the Great Spiritual Mission of the state. There may be more.

Alas, we still do not know the scope of the war power, but by now it seems very immense, indeed. It is here, perhaps, that we again glimpse a “suicide pact” – but not one lurking inside bills of rights. And, indeed, Gary D. Glenn has argued that John Locke took care to deny an individual’s right to commit suicide, so that he (Locke) could deny that people could commit themselves to a social contract whereby they conceded to the sovereign carte blanche to get them killed in his projects. [76]

The ineffable war power becomes more and more elusive – you can bet your life on that.

XI. The War Power: One Ring to Rule Them All, And in the Darkness Bind Them

Ruled now by latter-day Trotskyists, oddly called conservatives, we have been witnessing a dramatic Eternal Return to pagan prototypes, complete with matching myths, whether supplied by admirers of Gabriele D’Annunzio, or by would-be Neo-Roman imperialists. Sometimes, our cousins over the water chime in, with commercial messages in favor of the Neo-British model.

Central to the Neo-Roman outlook (and implicit in the Anglo-Norman version) is the notion of absolute sovereignty, from which all manner of power – including the war power – may be drawn. But we have already seen, from 1842 forward, that under the genial theory of the “war power,” the state may direct, seize, and use up any person or object within its territorial bounds. It seems clear enough, that protection of private persons and their property is not, in fact, the purpose of the state as such (despite frequent mention of such an object in the writings of Messrs. Hobbes, Locke, Madison, et alii). It begins to seem that the mere provision of security for concrete persons is at best a sort of sideline for the state, an ideological rationale for its activities, and an occasional accidental by-product of the state’s other activities and ends.

Where the war power finally ends, logically, emerges from an advisory opinion given by the International Court of Justice in July 1996. Seven out of the fourteen World Court jurists agreed, that “the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake…. [T]he Court cannot lose sight of the fundamental right of every State to survival, and thus its right to self-defence….” And thus, the Court “cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake.”

In other words, survival of the state may trump all other human interests. This highly unsatisfactory conclusion drew a dissent from Judge Christopher George Weeramantry of Sri Lanka: “Judge Weeramantry’s analysis includes philosophical perspectives showing that no credible legal system could contain a rule within itself which rendered legitimate an act which could destroy the entire civilization of which that legal system formed a part. Modern juristic discussions showed that a rule of this nature, which may find a place in the rules of a suicide club, could not be part of any reasonable legal system – and international law was preeminently such a system.” [77]

Once again, it seems, the people get to die for the state. The state will take credit for saving the people. Most of the people will somehow manage to believe this.

Rather more eloquently, the Thomist philosopher Jacques Maritain makes the same point:

This suggests there may have been a major political-philosophical wrong-turn somewhere on the long path leading from Aristotle, to Cicero, to St. Augustine, through Erasmus, the school of Salamanca, down to John Locke, John Taylor, Frédéric Bastiat, and down to the current happy reign of Bush II.

Addressing a central shortcoming of political philosophy and theory, namely, an inability or refusal adequately to distinguish state from society, Belgian jurist Frank van Dun writes:

To the extent that liberals subscribed to this view – and they did so en masse – they conceded the main point of political ontology to the apologists of statism: that war, not peace, is the normal or natural condition of human life. This is perhaps the most basic axiom of statism. It implies that there is no natural society, no ‘spontaneous order’ (as Hayek would say). Man plus man equals war. The whole of the statist philosophy is contained in that simple statement. [79]

And reflecting on states and war, in the light of the brutal 20th century, historian Michael Geyer has commented that, “the issue in great wars and the cause for profound crises is not governability or ways of military reasoning, but the nature of government and military reason itself.” [80]

Of course nothing said here should be taken as saying that concrete peoples might not wish to defend themselves and their property. There is every reason to believe they can do so, and without quite so many cost overruns and assaults on their liberties as we see today. Whether peoples need high-flying theories of sovereignty, bolstered by a long train of checks drawn on the ideology of war powers, to do that, is another matter. [81] Probably the checks should be returned, marked “insufficient funds.”

Since this is not a treatise on the force structures and weaponry appropriate to the defense of free societies, but is, instead, a critique, however mild, of an ideology wielded in the name of defense by parties, who are not friends of liberty, I move along to some conclusions.

The God-like war power seems a gross imposture grounded on systematically misleading legal fictions gathered into vast spirals of perverse reasoning, whose purpose is to produce whatever results the state apparatus and its social allies require at any given time. As a form of juridical thinking it is not worth the powder needed to blow it to Hell. And worse luck for us, modern states have succeeded in normalizing – in peacetime – many powers that were once part of their “emergency” weaponry.

Here is how John Taylor framed the problem; asking how it came about that governments often become unrestrained tyrannies, he writes:

But has the Constitution, on which Taylor pinned his hopes of preventing such abuses, really done us very much good? The things he opposed, including deductions from sovereignty, implications upon implications, unbounded war powers, and the like, now abound as practice, or as theory sustaining practice. Two paths seem open. We can affirm that those things are “unconstitutional” and then spend our days wondering how they came about despite their illegality; or, taking the true measure of two centuries of judicial tomfoolery and misdirection, we can reject the whole lot – “constitutional” or not – and take the next step, by interrogating sovereignty itself.

Rather than spend our days in constitutional nostalgia, extracting what little comfort we can from the early assertions of what that “paper” really meant (or would have meant in another universe), we might better attend to what Hans-Hermann Hoppe has written on this topic.

Hoppe observes that the American colonists, having thrown the British administration out of their lands, were ideally situated to live thereafter in near-anarchist freedom. Instead of doing this, they “not only did not let the inherited royal institutions of colonies and colonial governments wither away into oblivion; they reconstituted them within the old political borders in the form of independent states, each equipped with its own coercive (unilateral) taxing and legislative powers. While this would have been bad enough, the new Americans made matters worse by adopting the American Constitution and replacing a loose confederation of independent states with the central (federal) government of the United States.” [83]

Thereafter, perverse incentives set in. A government functioning as an “expropriating property protector,” possessing a territorial monopoly of coercive force, and open to temporary office-holders selected competitively could only grow in scope and ambition. The problems were not obvious for a while. John Taylor glimpsed them: “If,” he wrote, “we have left a sovereign power over property, in the hands of the state governments or the government of the union, all our work will be fruitless.” [84]

In Anno Domini 2003, in the face of imperial sovereignty and its attendant war powers, logically unfounded but real enough, we may wonder with John Randolph, whether in yielding the “war-making power and the money-raising power,” we “have yielded every thing.”

Notes

[1] Robert F. Turner, “The War on Terrorism and the Modern Relevance of the Congressional Power to ‘Declare War,’” Harvard Journal of Law and Public Policy, 25, 2 (Spring 2002), pp. 520–521 (my italics).

[2] J. Allen Smith, The Growth and Decadence of Constitutional Government (New York: Henry Holt, 1930), p. 146.

[3] Thomas Paine, “The Rights of Man,” in Philip S. Foner, ed., The Life and Major Writings of Thomas Paine (New York: Carol Publishing Co., 1993), p. 284.

[4] The last point in the quoted material refers to Justice Sutherland’s opinion in US v. Curtis-Wright (1936). Raoul Berger has demolished Sutherland’s reasoning, in Executive Privilege: A Constitutional Myth (Cambridge, MA: Harvard University Press, 1974), pp. 100–108.

[5] Raoul Berger, Executive Privilege, p. 81. Berger thinks that Lincoln’s military measures were justified, but not his theory; this is because, unaccountably, Berger believes that Lincoln was dealing with an “insurrection.” See also Edward S. Corwin, Total War and the Constitution (New York: Alfred A. Knopf, 1947), pp. 16–22.

[6] Quoted in John V. Jezierski, “Parliament or People: James Wilson and Blackstone on the Nature and Location of Sovereignty,” Journal of the History of Ideas, 32, 1 (January-March 1971), p. 96.

[7] Cf. Murray N. Rothbard, “War, Peace, and the State,” in Egalitarianism as a Revolt against Nature (Auburn, AL: Ludwig von Mises Institute, 1999), pp. 115–132.

[8] Henry Campbell Black, Black’s Law Dictionary (St. Paul, Minnesota: West Publishing Co., 1968), p. 1754 (my italics).

[9] William A. Dunning, “The Constitution of the United States in Civil War,” Political Science Quarterly, 2 (June 1886), p. 172 (my italics).

[11] The Federalist (New York: Modern Library, 1941), p. 142 (my italics).

[12] Patrick Henry, Speech of June 24, 1788, in Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, III: Virginia, 2nd ed. (Charlottesville: Michie Co., 1941 [1836]), pp. 590–592.

[13] James L. Sellers, writes that of $4,363,030,367 worth of property in the Confederate states at the beginning of the war, $1,634,105,341 was lost to emancipation and another $1,125,522,577 to other causes linked to the war (Sherman’s march could be mentioned): “The Economic Incidence of the Civil War in the South,” Mississippi Valley Historical Review, 14, 2 (September 1927), p. 182. My point is that the scale of the confiscations and wanton damage under the war power, or any other form of magic, should awaken our curiosity as to the final scope of that power.

[15] John Taylor of Caroline, Construction Construed and Constitutions Vindicated (New York: Da Capo Press, 1970 [1820]), pp. 25–26.

[16] Taylor, Construction Construed, pp. 53 (my italics), 75–76, 84, 170.

[17] John Marshall, M’Culloch v. Maryland, in Henry Steele Commager, ed., Documents in American History, I (New York: Appleton-Century-Crofts, 1963), pp. 213–220.

[19] John Randolph, “Speech on Surveys for Roads and Canals, January 30, 1824,” in Russell Kirk, John Randolph of Roanoke: A Study in American Politics (Chicago: Henry Regnery, 1964), p. 343.

[20] Charles Francis Adams, “The Sifted Grain and the Grain Sifters,” American Historical Review, 6, 2 (January 1901), pp. 197–234; JQA’s threats in appendix, pp. 230–234.

[21] Adams, “Sifted Grain,” p. 233 (my italics). A comparison of this view with that held by the US and Soviet occupiers in Germany in 1945, or US occupiers in Iraq, might prove instructive.

[22] See George M. Dennison, The Dorr War: Republicanism on Trial, 1831–1861 (Lexington: University of Kentucky Press, 1976).

[24] Quoted in George M. Dennison, “Martial Law: The Development of a Theory of Emergency Powers,” American Journal of Legal History, 18, 1 (January 1974), p. 76.

[25] See Ralph H. Gabriel, “American Experience with Military Government,” American Historical Review, 49, 4 (July 1944), pp. 630–643; quotations at pp. 632, 634–635.

[26] Benjamin Robbins Curtis, Executive Power (Boston: Little, Brown & Co., 1862 [reprint: Dahlonega, Georgia, n.d.]), pp. 16–17.

[28] Quoted in Charles Callan Tansill, “War Powers of the President of the United States with Special Reference to the Beginning of Hostilities,” Political Science Quarterly, 45, 1 (March 1930), pp. 7, 9.

[29] Abraham Lincoln, “Letter to William H. Herdon, February 15, 1848,” in Joseph R. Fornieri, ed., The Language of Liberty: The Political Speeches and Writings of Abraham Lincoln (Washington, DC: Regnery Publishing, 2003), pp. 91–92.

[30] Andrew C. McLaughlin, “Lincoln, the Constitution, and Democracy,” International Journal of Ethics, 47, 1 (October 1936), pp. 10–11.

[31] McLaughlin, “Lincoln, the Constitution, and Democracy,” p. 12 (my italics).

[32] Charles Fairman, “The Law of Martial Rule,” American Political Science Review, 22, 3 (August 1928), pp. 591, 594,

[33] Edward S. Corwin, “Martial Law, Yesterday and Today,” Political Science Quarterly, 47, 1 (March 1932), pp. 95, 97–99.

[35] A. Wigfall Green, “The Military Commission,” American Journal of International Law [hereafter: AJIL], 42, 4 (October 1948), pp. 834–836, 843.

[36] Dunning, “Constitution of the United States in Civil War” (see note #9). Although Dunning’s reputation rested, in his lifetime, on his work as an historian of political thought, present-day historians routinely denounce him as a monstrously pro-Southern bigot because of his writings on Reconstruction. It seems worth pointing out, therefore, that he was not “pro-Southern” in any wholesale way.

[39] Sydney G. Fisher, “The Suspension of Habeas Corpus During the War of the Rebellion,” Political Science Quarterly, 3, 3 (September 1888), pp. 482–483, 485.

[41] Henry Wager Halleck, “Military Tribunals and Their Jurisdiction,” AJIL, 5, 4 (October 1911), pp. 965–966. This piece, apparently written in 1864, while Halleck was practicing what he preached, was found in his papers at his death in 1872. Halleck had written a textbook on warfare (1846) in which he opposed many practices that he found acceptable by 1864. See Lance Janda, “Shutting the Gates of Mercy: The American Origins of Total War, 1860–1880,” Journal of Military History, 59, 1 (January 1995), p. 18.

[43] See Richard A. Cosgrove, “The Boer War and the Modernization of British Martial Law,” Military Affairs, 44, 3 (October 1980), pp. 124–127.

[44] James Oliver Robertson, American Myth, American Reality (New York: Hill & Wang, 1980), p. 311.

[45] It is not my mere opinion that the government was “war-crazed” during World War I. For an excellent description of America’s rather odd “war rage,” 1917–1920, see Thomas Fleming, The Illusion of Victory: America in World War I (New York: Basic Books, 2003). On the violent suppression of the once vital German-American subculture, once the US entered the war, see Gary Gerstle, “Liberty Coercion, and the Making of Americans,” Journal of American History, 84, 2 (September 1997), pp. 528, 539–541, 555–556

[46] Richard E. Eliel, “Freedom of Speech,” American Political Science Review, 18, 4 (November 1924), p. 718.

[48] J. H. Leek, “Treason and the Constitution,” Journal of Politics, 13, 4 (November 1951), p. 619.

[49] William A. Dunning, “Disloyalty in Two Wars,” American Historical Review, 24,2 (July 1919), p. 628, p. 630.

[50] Robert Nisbet, The Present Age: Progress and Anarchy in Modern America (New York: Harper & Row, 1988), p. 45; and see pp. 40–50.

[51] Quoted in Georg Schwarzenberger, “Jus Pacis ac Belli? Prolegomena to a Sociology of International Law,” AJIL, 37, 3 (July 1943), p. 475.

[53] William E. Scheuerman, "The Economic State of Emergency," Cardozo Law Review, 21 (2000), p. 1870.

[54] C. H. McIlwain, “A Fragment on Sovereignty,” Political Science Quarterly, 48,1 (March 1933), p. 96.

[55] See Ralph Raico, “Prolegomena to a History of Liberalism,” Journal des Économistes et des Études Humaines, 3, 2/3 (June/September 1992), 259–272.

[57] Bertrand de Jouvenel, Sovereignty: An Inquiry into the Political Good (Indianapolis: Liberty Fund, 1997 [1957]}, pp. 202–203, 205, 208.

[58] Robert Eccleshall, “Richard Hooker’s Synthesis and the Problem of Allegiance,” Journal of the History of Ideas, 37, 1 (January-March 1976), p. 119.

[59] Ernst H. Kantorowicz, “Pro Patria Mori in Medieval Political Thought,” American Historical Review, 56, 3 (April 1951), pp. 473–475.

[62] Clyde Eagleton, “The Form and Function of the Declaration of War,” AJIL, 32, 1 (January 1938), pp. 21–22; and for a commentary on states of war, limited undeclared wars, and sundry legal fictions and dodges thereunto annexed, see William J. Ronan, “English and American Courts and the Definition of War,” AJIL, 31, 4 (October 1937), pp. 642–658.

[63] See Friedrich Meinecke, Machiavellism: The Doctrine of Raison d’Etat and Its Place in Modern History (New Haven: Yale University Press, 1957), for the development of statist apologetics, by continental thinkers, from Machiavelli through Treitschke.

[64] Richard Ashcraft, “Hobbes’s Natural Man: A Study in Ideology Formation,” Journal of Politics, 33, 4 (November 1971), p. 1112.

[65] Quentin Skinner, quoted in Ashcraft, “Hobbes’s Natural Man,” p. 1114.

[67] Quoted in Frederick O. Bonkovsky, International Norms and Public Policy (Grand Rapids, Michigan: William B. Eerdmans Publishing Co., 1980), p. 75.

[68] On these practices, see, for example, Nicholas P. Canny, “The Ideology of English Colonization: From Ireland to America,” William and Mary Quarterly, 3rd series, 30, 4 (October 1973), pp. 575–598, and Leonard P. Liggio, “English Origins of Early American Racism,” Radical History Review, 3, 3 (Spring 1976), pp. 1–36.

[70] Nicholas Greenwood Onuf, “Civitas Maxima: Wolf, Vattel and the Fate of Republicanism,” AJIL, 88, 2 (April 1994), p. 281.

[71] Cary J. Nederman, “Sovereignty, War and the Corporation: Hegel on the Medieval Foundations of the Modern State,” Journal of Politics, 49, 2 (May 1987), pp. 505–506.

[72] Quoted in C. B. Robson, “Francis Lieber’s Theories of Society, Government, and Liberty,” Journal of Politics, 4, 2 (May 1942), p. 237.

[74] Seddon quoted in Burrus M. Carnahan, “Lincoln, Lieber and the Laws of War,” AJIL, 92, 2 (April 1998), pp. 217–218; cf. Frank Freidel, “General Orders 100 and Military Government,” Mississippi Valley Historical Review, 32, 4 (March 1946), p. 553.

[75] Albert T. Lauterbach, “Militarism in the Western World: A Comparative Study,” Journal of the History of Ideas, 5, 4 (October 1944), p. 468.

[76] Gary D. Glenn, “Inalienable Rights and Locke’s Argument for Limited Government: Political Implications of a Right to Suicide,” Journal of Politics, 46, 1 (February 1984), pp. 80–105.

[77] See International Court of Justice, “Legality of the Threat or Use of Nuclear Weapons,” 8 July 1996,” quotations from printed version, at pp. 2, 9–19, 19 (my italics in quotation from Weeramantry). The complete text of Judge Weeramantry’s dissent can be found here.

[78] Jacques Maritain, “The Concept of Sovereignty,” American Political Science Review, 44, 2 (June 1950), pp. 356–357.

[79] Frank van Dun, “Philosophical Statism and the Illusions of Citizenship: Reflections on the Neutral State,” in Boudewijn Bouckaert, ed., Hayek Revisited (Cheltenham, UK: Locke Institute, 2000), p. 94. On constitutional forms as legitimizing mechanisms, see Rothbard, “Anatomy of the State,” in Egalitarianism as a Revolt Against Nature, pp. 70–80.

[80] Michael Geyer, “War and the Context of General History in an Age of Total War,” Journal of Military History, 57, 5 (October 1993), p. 157 (my italics).

[81] Hans-Hermann Hoppe, ed., The Myth of National Defense: Essays on the Theory and History of Security Production (Auburn, AL: Ludwig von Mises Institute, 2003 [forthcoming]).

[83] Hans-Hermann Hoppe, Democracy: The God That Failed (New Brunswick, NJ: Transaction Publishers, 2001), pp. 267–280, quotation at p. 272.

The Search for the Elusive War Power

I. The Problem Stated