War Powers

The Power To Wage War Successfully

By Matthew Waxman
Thursday, October 13, 2016, 7:59 AM

A little more than 99 years ago, and several months after the United States declared its entry into the Great War against the Central Powers of Europe, Charles Evans Hughes declared in a widely publicized speech that “the [constitutional] power to wage war is the power to wage war successfully.” In a new draft article now posted on SSRN, I tell the story of what Hughes meant by that axiom.

World War I doesn’t usually get much play in the story of American constitutional war powers. It was congressionally declared, after a long period of national deliberation. There were liberty infringements, but nothing on the order of Japanese internment in the next big war. And there were no blockbuster Supreme Court cases like Steel Seizure that established enduring jurisprudential frameworks. In fact, Hughes’s speech probably carries more judicial weight today than any Supreme Court opinion from that war, even though Hughes had resigned as Associate Justice in 1916 to run against Wilson for President and would not be appointed Chief Justice until about a decade after the war’s end.

The more I study World War I—and Hughes’s speech and other work from the time—the more I’m convinced that it is actually one of the most important episodes in war powers history and the evolution of what Hughes calls our “fighting constitution.” To borrow Rosa Brooks’s phrase, this was a moment when, quite literally, everything really did become war. It is the moment in American history when the differential between normal, peacetime government powers and wartime constitutional powers (most notably legislative ones) reached its apex.

Hughes’s 1917 address as well as his speeches and litigation arguments later in the war are also worth studying today because they shine new light on our contemporary wars against transnational terrorist groups. Having defended very expansive wartime powers, Hughes struggled after the 1918 Armistice—which ended, in today’s lingo, major combat operations, but didn’t yet achieve ambitious American war aims—with how to turn those powers off or dial them back when facing the prospect of indefinite conflict.

The draft article is available here. Constructive comments are welcome.