Search for the Elusive War Power
Joseph R. Stromberg
by Joseph R. Stromberg
Under a reconciliation
between republican and despotick principles, effected by the new
idea of “sovereign servants,” our legislatures are converted into
British parliaments, daily new-modeling the substance of our government,
by bodies politick, exclusive privileges, pensions, bounties,
and judicial acts, comprising an arbitrary power of dispensing
wealth or poverty to individuals and combinations at their pleasure….
If our system of government produces these bitter fruits naturally,
it is substantially European; and the world, after having contemplated
with intense interest and eager solicitude the experiment of the
United States, will be surprised to find, that no experiment
at all has been made, and that it still remains to be discovered,
whether a political system preferable to the British be within
the scope of human capacity.
John Taylor of Caroline,
Construed and Constitutions Vindicated
(Richmond: 1820; preface, emphasis added)
I. The Problem
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
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
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
a palpable hit!
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
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
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.
vs. Security and Other Phony Balancing Acts
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?
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….”  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.
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.” 
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:
views regarding the source of the war power found expression in
the early years of the Constitution and continued to vie for supremacy
for nearly a century and a half. Writing in The
Federalist, Hamilton elaborated the theory that the war
power is an aggregate of the particular powers granted by Article
I, Sec. 8. Not many years later, in 1795, the argument was advanced
that the war power of the National Government is an attribute
of sovereignty and hence not dependent upon the affirmative grants
of the written Constitution. Chief Justice Marshall appears to
have taken a still different view, namely that the power to wage
war is implied from the power to declare it. In McCulloch v. Maryland,
he listed the power ‘to declare and conduct a war’ as one of the
‘enumerated powers’ from which the authority to charter the Bank
of the United States was deduced.
era of the Civil War, the two later theories were both given countenance
by the Supreme Court. Speaking for four Justices in Ex parte Milligan,
Chief Justice Chase described the power to declare war as ‘necessarily’
extending ‘to all legislation essential to the prosecution of
war with vigor and success, except such as interferes with the
command of the forces and conduct of campaigns.’ In another case,
adopting the terminology used by Lincoln in his Message to Congress
on July 4, 1861, the Court referred to ‘the war power’ as a ‘single
unified power.’ …Not until 1936, however, did the Court explain
[!] the logical basis for imputing such an inherent power to the
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.”  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.”
 In Britain, this “uncontrolled authority” was held to rest
with Parliament (technically, the “King-in-Parliament”).
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.
 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.
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.” 
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
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?
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.” 
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?
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. 
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:
essential to the common defence are these: to raise armies; to
build and equip fleets; to prescribe rules for the government
of both; to direct their operations; to provide for their support.
These powers ought to exist without limitation…. The circumstances
which may endanger the safety of nations are infinite [!], and
for this reason no constitutional shackles can wisely be imposed
on the power to which the care of it is committed. 
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.” 
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?
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.
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.
IV. The War-Power
Concept in the Early Republic
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.
“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.” 
view, Americans had never bought this tired old horse:
to our revolutionary war, the colonies had been thoroughly lectured
upon the subjects of sovereignty, supremacy, and a division of
powers…. The parliament contended, that the right of making war,
conceded by the colonies, implied a right of using all the means
necessary for obtaining success; such as raising a revenue, appointing
collectors, raising troops, quartering them upon the colonies,
and many other internal laws; and that the right of regulating
commerce, also involved a right of imposing duties, and establishing
custom houses for their collection; arguing, that it would be
absurd to allow powers, and with-hold any means necessary or proper
for their execution. The colonies replied, that it would be
more absurd to limit powers, and yet concede unlimited means for
I have underscored
the last sentence, because it goes to the heart of the thing.
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.”  (Marshall, of course, had cited the war power
as one possible source of an implied power to charter the
Bank of the United States.  )
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.
 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.
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.”
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.”  Randolph alluded to Henry’s warnings in the
and John Randolph of Roanoke warned against, Yankee politicians
like John Quincy Adams soon offered as threat.
Threats from the High-Toned John Quincy Adams, and Other Omens
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:
but if they
come to the free States and say to them you must help us to keep
down our slaves, you must aid us in an insurrection and civil
war, then I say that with that call comes a full and plenary power
to this House and to the Senate over the whole subject. It is
a war power. I say it is a war power, and when your country is
actually in war, whether it be a war of invasion or a war of insurrection,
Congress has power to carry on the war, and must carry it on according
to the laws of war; and by the laws of war an invaded country
has all its laws and municipal institutions swept by the board,
and martial law takes the place of them. 
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.
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
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
It was a
state of war; and the established government resorted to the rights
and usages of war to maintain itself, and to overcome the unlawful
opposition. And in that state of things the officers engaged in
its military service might lawfully arrest any one, who, from
the information before them, they had reasonable grounds to believe
was engaged in the insurrection; and might order a house to be
forcibly entered and searched, when there were reasonable grounds
for supposing he might be there concealed. Without the power to
do this, martial law and the military array of the government
would be mere parade…. 
In his dissenting
opinion, Justice Levi Woodbury said of martial law, that if left
population, not only to be seized without warrant or oath, and
their houses broken open and rifled, and this where the municipal
law and its officers and courts remained undisturbed and able
to punish all offences, but to send prisoners, thus summarily
arrested in a civil strife, to all the harsh pains and penalties
of courts-martial or extraordinary commissions, and for all kinds
of supposed offences. By it every citizen, instead of reposing
under the shield of known and fixed laws as to his liberty, property,
and life, exists with a rope round his neck, subject to be hung
up by a military despot at the next lamp-post, under the sentence
of some drum-head court-martial.” 
the Court ruled on the Dorr War, the Mexican-American War (18461848)
had raised the stakes. Congress naturally had occasion to debate
war powers a bit.
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.
Taking an opposed
line, Congressman James A. Seddon of Virginia answered:
[i]t is the
boast of modern times, the blessing to Christendom of Christianity
and civilization, that in war, as in peace, a code of law to govern
all international relations, founded in part on the practices
of nations, but more correctly binding, as deduced from the most
sacred principles of justice and the highest ethics of morality
and humanity, has by general comity and common convictions been
established and recognised.... The worst of all conditions for
a people is to be without government at all a prey to anarchy
and confusion, with their rights, their property, and their persons,
at the mercy of the ruffian, or the ravisher, whose excesses no
law restrains and no justice punishes. For a conqueror to overthrow
an existing polity, and leave a submissive people to such horrors,
would be such a tyranny as no principle of humanity or law could
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.
 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: 18611877
In the “Civil
War” (18611865), 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.
Curtis, who had served on the US Supreme Court, 18511857,
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
citizen of the United States under direct military command and
control of the President. They declare and define new offences,
not known to any law of the United States. They subject all citizens
to be imprisoned upon a military order, at the pleasure of the
President, when, where, and so long as he, or whoever is acting
for him, may choose. They hold the trial before a military commission
appointed by the President, or his representative, for such acts
or omissions as the President may think proper to decree to be
offences; and they subject him to such punishment as such military
commission may be pleased to inflict....
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.’”
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.
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.” 
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:
where in the Constitution is any limitation of the War Powers?
Let Senators who would limit them mention a single section, line,
or phrase, which even hints at any limitation.... The War Powers
are derived from the Constitution, but once set in motion, are
without any restraint from [the] Constitution; so that what is
done in pursuance of them is at the same time under the
Constitution and outside the Constitution. It is under
the Constitution in its beginning and origin; but whether under
the Constitution or outside the Constitution, all that is done
in pursuance of the War Powers is constitutional.... Once begun,
war is a law unto itself, or, in other words, it has a
law of its own, which is part of itself. As just in proportion
as you seek to moderate it by constitutional limitations do you
take from war something of its efficiency.
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.”
 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.
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.
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….”  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.”
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.
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. 
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.” 
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.
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.”  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.
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….’”
to be another (perhaps unintended) palpable hit!
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.  Working overtime to justify
of Lincoln’s measures, he writes:
War is the
negation of civil liberties. Granting the power in Congress to
recognize certain of its citizens as public enemies in the technical
sense, the exercise of that power puts in the hands of the government
a control over the life, liberty and property of all whom it so
regards, limited only by the dictates of humanity and a respect
for the practice of nations…. Such was the theory upon which the
exercise of the war power was based by all three departments of
the government. 
Later in the
same essay, he writes:
the right to try citizens of loyal states by purely military procedure,
Mr. Lincoln asserted the existence of martial law, in its most
unlimited sense, throughout the whole United States. Martial
law is well understood to be practically no law – merely the
unregulated will of a military commander, sanctioned by physical
force. Under its sway the whole machinery of civil justice disappears….
The records of the war department contain the reports of hundreds
of trials by military commissions, with punishments varying from
light fines to banishment and death. Congress, moreover, asserted
its control over the subject by indemnifying officers against
prosecutions for acts done under the President’s orders organizing
the commissions. It further gave legal sanction to the military
tribunals in the reconstruction acts, though here there was doubt
as to whether the status of the region was that of peace or war. 
may speak for itself.
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,
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”  – leaving the lawfulness of the measures
treated as much in doubt as when he began.
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.” 
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.” 
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
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,  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
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.
 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.
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. 
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.” 
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
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.” 
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”  – 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.
Dunning rationalized Wilson’s wartime dictatorship: “President Wilson’s
authority, actually exercised, surpassed in variety and scope the
wildest dreams of 18611865. 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.”
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.”
 Certainly, US wartime legislation and “jurisprudence”
call to mind, as much as anything, the French Revolutionary “law
of suspects” of 1793.
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.
in the U.S.S.A.
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.
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:
are not loath to have the definition of what constitutes war shrouded
in mystery; for in the greater number of States possessing a parliamentary
form of government the decision to make war is hedged about with
formalities and special constitutional requirements, and governments
have in the past and are likely in the future to find it convenient
to resort to measures of war while maintaining that no war exists.
have seen that it works the other way around, as well.
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.
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. 
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...”
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
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.”
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.  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.
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.”
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.
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.” 
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.”
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.”  Theorists could now assert that the state
was the most inclusive “universitas,” or corporate body.
No one could withdraw from this “corporation” without permission.
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.”
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.”
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
of war as a public contest merely put into legal form the object
of absolutist policy to achieve and to hold the monopoly of legitimate
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.” 
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.”
 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.
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.
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.”  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.” 
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.” 
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
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
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.
 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.
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.” 
in the course of these transitions came the secession of thirteen
British colonies from the empire.
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,
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
Hegel’s views on states and war, Cary J. Nederman writes:
In a time
of war, however, the state comes into its own as force, as the
unification of the divergent interests of civil society into the
single directed activity of repelling and overcoming an external
threat…. The sovereignty of the state is the rallying point for
the common defense, which transcends all particular interests
and all internal mechanisms of society, since in war the general
good [!] is incontestable and unambiguous. The state’s sovereignty
in its external relations is only really manifested in war. And
this ‘outward’ form of sovereignty is present not merely to a
foreign state, but also to the populace of one’s own state, during
periods of war. 
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
stands incalculably above the individual, is worthy of every sacrifice,
of life, and goods, of wife and children, for it is the society
of societies, the sacred union by which the creator leads man
to civilization, the bond, the pacifier, the humanizer, of men,
the protector of all undertakings, in which and through which
the individual has received its character, and which is the staff
and shield of society.
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.” 
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.”
 But this sort of thing must be expected, one supposes,
where people have signed on for modern sovereignty and vast war
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.”  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.
war power becomes more and more elusive – you can bet your life
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
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.”
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.
eloquently, the Thomist philosopher Jacques Maritain makes the same
To the extent
that the sovereign State succeeds in this effort [to escape all
bonds], the unaccountability of the supreme decisions by which
the body politic is committed has a clear meaning: it means in
actual fact that the people will pay for the decisions
made by the State in the name of their Sovereignty. As a French
saying puts it, ‘ce sont toujours les mêmes qui se font tuer,’
always the same ones are getting killed. The woes of the people
settle the accounts of the unaccountable supreme persons or agencies,
State, ministries, committees, boards, staffs, rulers, lawgivers,
experts, advisers – not to speak of the intelligentsia,
writers, theorists, scientific utopians, connoisseurs, professors
and newspapermen. 
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
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:
that the state is a form of organized lawlessness is a recurrent
theme in liberal thought. It underlies the many attempts to civilise
or tame what Hobbes aptly called the ‘Leviathan.’ The aim is to
institutionalise constitutional checks and balances…. In other
words, the liberal idea implies that, at least in times of peace,
the state should be controlled according to law. In many ways,
this constitutional approach was very successful…. Nevertheless,
constitutionalism was more effect as a source of legitimacy than
as a check on the powers of the state. Liberals all too easily
acquiesced in the state’s claim to represent or embody the law….
The state, the institutionalised form of (preparedness for) lawless
war, came to be regarded as a necessary institution of lawful
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.
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.”
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.  Probably the checks should be returned, marked
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.
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”
Here is how
John Taylor framed the problem; asking how it came about that governments
often become unrestrained tyrannies, he writes:
this question, turn your eyes towards a government accoutred in
the complete panoply of fleets, armies, banks, funding systems,
pensions, bounties, corporations, exclusive privileges; and in
short, possessing the absolute power to distribute property, according
to the pleasure, the pride, the interest, the ambition, and the
avarice of its administrators; and consider whether such a government
is the servant or the master of the nation. However oppressive,
is it not able to defy, to deride and to punish the complaints
of the people? Partisans, purchased and made powerful by their
wealth, zealously sustain the abuses by which their own passions
are gratified. I discern no reason in the principles of our revolution,
for investing our governments which such of these instruments
for oppression, as were both unnecessary for the end in view,
and even inimical to its attainment; and no such reason existing,
it is more difficult to discern the propriety of investing our
governments with these superfluous and pernicious powers, by inference
and construction. 
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.
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.
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.” 
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.” 
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.”
 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.
520521 (my italics).
 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),
 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),
 William A. Dunning, “The Constitution of the United
States in Civil War,” Political Science Quarterly, 2 (June
1886), p. 172 (my italics).
 The Federalist (New York: Modern Library,
1941), p. 142 (my italics).
 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.
 Taylor, Construction Construed, pp. 53
(my italics), 7576, 84, 170.
 John Marshall, M’Culloch v. Maryland,
in Henry Steele Commager, ed., Documents in American History,
I (New York: Appleton-Century-Crofts, 1963), pp. 213220.
 Taylor, pp. 2728, 3138, 280, 286289.
 Charles Francis Adams, “The Sifted Grain and
the Grain Sifters,” American Historical Review, 6, 2 (January
1901), pp. 197234; JQA’s threats in appendix, pp. 230234.
 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.
 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.
 See Ralph H. Gabriel, “American Experience with Military
Government,” American Historical Review, 49, 4 (July 1944),
pp. 630643; quotations at pp. 632, 634635.
 Benjamin Robbins Curtis, Executive Power
(Boston: Little, Brown & Co., 1862 [reprint: Dahlonega, Georgia,
n.d.]), pp. 1617.
 Curtis, Executive Power, pp. 1819, 25,
 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.
 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. 9192.
 Andrew C. McLaughlin, “Lincoln, the Constitution, and
Democracy,” International Journal of Ethics, 47, 1 (October
1936), pp. 1011.
 McLaughlin, “Lincoln, the Constitution, and Democracy,”
p. 12 (my italics).
 Charles Fairman, “The Law of Martial Rule,” American
Political Science Review, 22, 3 (August 1928), pp. 591, 594,
 Edward S. Corwin, “Martial Law, Yesterday and
Today,” Political Science Quarterly, 47, 1 (March 1932),
pp. 95, 9799.
 Fairman, “The Law of Martial Rule,” p. 612.
 A. Wigfall Green, “The Military Commission,”
American Journal of International Law [hereafter: AJIL],
42, 4 (October 1948), pp. 834836, 843.
 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.
 Dunning, “Constitution of the United States in
Civil War, p. 178.
 Ibid., pp. 191192 (my italics).
 Sydney G. Fisher, “The Suspension of Habeas Corpus During
the War of the Rebellion,” Political Science Quarterly,
3, 3 (September 1888), pp. 482483, 485.
 Dennison, “Martial Law: Development of a Theory,”
pp. 73, 77.
 Henry Wager Halleck, “Military Tribunals and
Their Jurisdiction,” AJIL, 5, 4 (October 1911), pp. 965966.
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,
18601880,” Journal of Military History, 59, 1 (January
1995), p. 18.
 Corwin, “Martial Law,” p. 99.
 See Richard A. Cosgrove, “The Boer War and the
Modernization of British Martial Law,” Military Affairs,
44, 3 (October 1980), pp. 124127.
 James Oliver Robertson, American Myth, American Reality
(New York: Hill & Wang, 1980), p. 311.
 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,” 19171920, see Thomas
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, 539541,
 Richard E. Eliel, “Freedom of Speech,” American
Political Science Review, 18, 4 (November 1924), p. 718.
 Eliel, “Freedom of Speech,” pp. 727730.
 J. H. Leek, “Treason and the Constitution,” Journal
of Politics, 13, 4 (November 1951), p. 619.
 William A. Dunning, “Disloyalty in Two Wars,” American
Historical Review, 24,2 (July 1919), p. 628, p. 630.
 Quoted in Georg Schwarzenberger, “Jus Pacis ac Belli?
Prolegomena to a Sociology of International Law,” AJIL, 37, 3
(July 1943), p. 475.
 William E. Scheuerman, "The Economic State
of Emergency," Cardozo Law Review, 21 (2000), p.
 C. H. McIlwain, “A Fragment on Sovereignty,” Political
Science Quarterly, 48,1 (March 1933), p. 96.
 See Ralph Raico, “Prolegomena to a History of Liberalism,”
Journal des Économistes et des Études Humaines, 3, 2/3
(June/September 1992), 259272.
 McIlwain, “Fragment on Sovereignty,” p.98 (my italics).
 Robert Eccleshall, “Richard Hooker’s Synthesis and the
Problem of Allegiance,” Journal of the History of Ideas,
37, 1 (January-March 1976), p. 119.
 Ernst H. Kantorowicz, “Pro Patria Mori in Medieval
Political Thought,” American Historical Review, 56, 3 (April
1951), pp. 473475.
 Kantotowicz, “Pro Patria Mori,” p. 478.
 Schwarzenberger, “Jus Pacis ac Belli,” p. 462.
 Clyde Eagleton, “The Form and Function of the Declaration
of War,” AJIL, 32, 1 (January 1938), pp. 2122; 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. 642658.
 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
 Richard Ashcraft, “Hobbes’s Natural Man: A Study
in Ideology Formation,” Journal of Politics, 33, 4 (November
1971), p. 1112.
 Quentin Skinner, quoted in Ashcraft, “Hobbes’s
Natural Man,” p. 1114.
 Schwarzenberger, pp. 464465.
 Quoted in Frederick O. Bonkovsky, International
Norms and Public Policy (Grand Rapids, Michigan: William B.
Eerdmans Publishing Co., 1980), p. 75.
 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. 575598, and Leonard P. Liggio, “English
Origins of Early American Racism,” Radical History Review,
3, 3 (Spring 1976), pp. 136.
 Canny, “Ideology of English Colonialism,” pp.
 Nicholas Greenwood Onuf, “Civitas Maxima:
Wolf, Vattel and the Fate of Republicanism,” AJIL, 88,
2 (April 1994), p. 281.
 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. 505506.
 Quoted in C. B. Robson, “Francis Lieber’s Theories
of Society, Government, and Liberty,” Journal of Politics,
4, 2 (May 1942), p. 237.
 Seddon quoted in Burrus M. Carnahan, “Lincoln,
Lieber and the Laws of War,” AJIL, 92, 2 (April 1998), pp. 217218;
cf. Frank Freidel, “General Orders 100 and Military Government,”
Mississippi Valley Historical Review, 32, 4 (March 1946),
 Albert T. Lauterbach, “Militarism in the Western
World: A Comparative Study,” Journal of the History of Ideas,
5, 4 (October 1944), p. 468.
 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),
 Jacques Maritain, “The Concept of Sovereignty,”
American Political Science Review, 44, 2 (June 1950), pp.
 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. 7080.
 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).
 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]).
 Taylor, Construction Construed, p. 12.
 Taylor, p. 69 (emphasis added).
Joseph R. Stromberg [send him
mail] is holder of the JoAnn B. Rothbard Chair in History at
the Ludwig von Mises Institute
and a columnist for LewRockwell.com
© 2003 Mises Institute