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The Constitution, War Powers, and Terrorism
University of Illinois School of Law
Pushaw, Robert

THE CONSTITUTION, WAR POWERS, AND TERRORISM

PROFESSOR PUSHAW – SPRING 2012

THE ORIGINAL MEANING AND UNDERSTANDING

A. THE CONSTITUTION: Selected Relevant Excerpts

1. BASIC PROVISIONS

a. Preamble – “provide for the common defense”

b. Art. 1, Sec. 8 – The Congress shall have the power:

i. To provide for the common defense and general welfare of the United States

1. Why did the AOC fail to achieve this?

a. Established a system that didn’t work because it gave the national government the responsibility to provide for common defense, but they had to ask the states for money

ii. To declare war, and make rules concerning captures on land and water

iii. To raise and support armies & a navy (& to make rules for the government and regulation of land and naval forces

iv. To provide for calling forth the militia to suppress insurrections and repel invasions.

v. To provide for organizing, arming, and disciplining the militia

vi. NECESSARY AND PROPER CLAUSE

c. Art. 1, Sec. 10 – Federal Power, not State power

d. Art. 2, Sec. 1 – The executive power shall be vested in a President of the United States of America

i. Art. 2, Sec. 2 – The President shall be Commander in Chief of the Army & Navy of United States, and of the Militia of the several States, when called into the actual service of the US

ii. Art. 2, Sec. 3 – TAKE CARE CLAUSE (take care that the laws are faithfully executed)

e. Art. 3, Sec. 1 – The judicial power of the US shall be vested in one Sup Court, & in inferior courts as the Congress may from time to time ordain & establish

i. Judicial power shall extend to all cases in law & equity, arising under this Constitution, the laws of the US, & treaties

f. Art. 4 – The US shall protect each State against invasion

g. SUPREMACY CLAUSE (Art. 6) – the Constitution and the laws of the US which shall be made in pursuance thereof, and all treaties, shall be the supreme law of the land

h. FIRST AMENDMENT – Congress shall make no law abridging the freedom of speech or of the press

i. FIFTH AMENDMENT – No person shall be held to answer for a capital (or otherwise infamous) crime unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces or in the Militia

i. DUE PROCESS CLAUSE – nor shall any person be deprived of life, liberty, or property without due process of law

2. SPECIALTY PROVISIONS

a. Art. 1, Sec. 8 – The Congress shall have the power to define and punish piracies and felonies committed on the high seas

b. Art. 1, Sec. 9 – Writ of Habeas Corpus shall not be suspended

3. INTERNATIONAL ARMED CONFLICT

a. Art. 1, Sec. 8 – The Congress shall have the power to define and punish offenses against the law of nations

b. Treason against the US shall consist only of levying war against them, or in adhering to their enemies, giving them aid and comfort

WAR POWERS OF THE EXECUTIVE – THE CONSTITUTION

FROM THE BEGINNING

§ Framers were preoccupied about war powers, more so than individual rights/liberties

o Original Constitution had no BOR

o Wanted to strengthen the national government for:

§ War/peace

§ Commerce

§ Raise revenue

§ Constitution grants the federal government unlimited war powers

o BUT establishes checks – main check being separation of powers

§ Congress declares war, but President is Commander in Chief

§ Congress makes laws of war, but President executes them

§ Congress pays for the common defense

o ALSO – federalism both grants more powers and checks powers

§ TECHNICALLY – our standing army is unconstitutional

o Why can we have this?

The Federalist Papers

HAMILTON

§ The key to a successful executive is “energy”

o If Congress is passing laws, you want the President to execute those laws

§ UNITARY EXECUTIVE – Single executive can act swiftly, decisively, and with secrecy

o Nowhere is this more important than in war powers & foreign affairs

§ Especially in self-defense

o Ensures accountability

FEDERALIST No. 8

a. Hamilton argues for the utility of the Union to the well-being of Americans, specifically addressing the negative consequences if the Union were to collapse and conflict arise between the states

b. The new Constitution does not prohibit standing armies and it’s inferred that a perpetual army will exist. If the states do not unify into a single nation there will be a perpetual cycle of conflict between neighboring states.

i. Country would tear itself apart from within

ii. Unite by allying against a common outside enemy

iii. Additionally, if not unified, populous states, motivated by greed might plunder weaker states for their resources.

c. The motivation for a union is safety, being aware though that no matter how great the nation’s commitment to liberty freedoms are compromised in order to achieve protection

i. People will sacrifice liberty for security

ii. Should expand the executive at the expense of the legislative

d. The frequency of conflict and the need for defense will necessitate a ready-armed force for defense. And by its nature a militaristic state strengthens the executive arm (from which a monarchy could emerge). War increases executive authority at the expense of the other branches of government.

i. Extreme defense would likely give rise to oppressive government practices

ii. HOWEVER – even if it limits liberties, the opposite set of circumstances would be worse, so nations are ultimately going to give into this anyway

e. Observing history: the livelihood of citizens cause the population to be ill suited for war. A varied workforce necessitates the development of a profession of soldiers who would be distinct from the body of the citizens

i. Nations that don’t have a standing army are less likely to oppress citizens

ii. HOWEVER – nations prone to attack need to maintain defensive forces, even if it DOES infringe upon rights

f. Also, a Union of states would act as a deterrent from aggression by nearby foreign colonies.

FEDERALIST No. 23

1. Defense p

ii. Cannot limit defensive force unless we can limit those who would attack us (but we can’t, so we need a defensive force)

ii. STANDING ARMY: Self-preservation is a natural/normal instinct

1. Standing peace-time army is a threat to liberty BUT a wise nation will address these concerns

a. This wisdom is built into the Constitution

2. America, united, with 1 soldier is more powerful than America, not united, with 100,000 combat-ready soldiers

3. Best protection against the potential danger from a standing army is the ability to limit its funding (which is written into the Constitution)

a. US ties the legislature to 2 year terms, so military wouldn’t go totally unchecked for longer than a period of 2 years

iii. Structure of the new government

1. Guarding against standing armies

a. Constitution has effective guards against the danger of standing armies

b. Nothing short of a Constitution like ours can prevent each state from otherwise having its own standing army

c. Total cost of all these states’ armies must be at least as much as that of any army needed by a united & efficient government

2. Powers of Congress

a. Can’t fairly say that Congress has a “blank check” of powers when they’re given in general terms, because they’re immediately followed by a list of specifics

b. Opponents of the new Constitution say that it gives Congress too much power, BUT the Articles of Confederation used the same language

FEDERALIST No. 69

a. Discusses the powers and limitations of the Executive branch

i. To assuage fears that the head of the executive branch will hold excessive power, Hamilton compares President’s powers to those of the King of Great Britain (powers held by the former are undoubtedly inferior to the latter)

ii. Looks at this especially with regard to war powers – a number of powers otherwise held by the king are taken away from the President and given to the legislature

1. President only has the command of nation’s militia if legislative provision calls it into action whereas king has complete control of militia at all times

2. President is Commander in Chief of Army/Navy which is only supreme command and direction of the military – whereas the powers of the king include declaring war and raising and regulating fleets and armies, which are otherwise the power of the legislature