The Constitution in Wartime
July 19-21, 2017
The decision to go to war, it is often said, is the most difficult decision governmental officials are asked to make. The specter of nuclear war and the sprawling, worldwide nature and impact of terrorism bring into sharp focus the consequences of war. The twists and turns of warfare are unpredictable. They can exact a high toll on the blood and treasure of a nation, plunge its citizenry into convulsions of frustration, fear and protests, and ravage its society and culture. The great Roman statesman, Cicero, justly observed that, “in times of war the laws buckle,” a historical fact that has grave implications for the rights and liberties of citizens. And, it has been widely remarked that once begun, wars can be hard to end. It is thus for good reason that nations seek to avoid war and to embrace peace, even if the terms of peace are less than satisfying.
Occasionally, however, wars are unavoidable. In those circumstances, questions arise concerning the constitutional repository of the authority to declare war, as well as the authority to conduct it. The power to initiate war, conduct it and end it, what James Madison referred to as the authority to “commence, continue and conclude war,” is governed, in principle, by the Constitution, although 200 years of American history have been witness to quarrels and disputes about the constitutional location of the war powers. History, moreover, has confirmed Cicero’s observations, for in the United States, the conduct of war, has raised grave threats and challenges to fundamental American civil liberties, including freedom of speech, freedom of religion and freedom of the press.
The purpose of this seminar is to ask, “What does the Constitution look like in times of war?” Our aims and purposes then, involve discussion of critical questions involving the constitutional allocation of war, foreign affairs and national security powers to Congress and the President. How does the Constitution balance national security needs with the Bill of Rights? Which branch of government possesses the power to initiate war on behalf of the American people? What did the Framers of the Constitution have in mind when they made the President “Commander in Chief”? Have the Framers’ views controlled historical practice when it comes to the authority to decide for war, and to conduct it, or has historical practice followed another course? What does it mean to characterize a President as a “wartime President,” and what significance is attached to that title? What did James Madison mean when he wrote that war “is the true nurse of executive aggrandizement of power”? How have the courts ruled on the great separation of powers issues surrounding war? In addition, how has warfare affected the exercise of Americans’ rights and liberties? How has the judiciary ruled on the issue of the scope of freedom of speech, freedom of the press and religious freedom during war?
Our approach to these great questions, among others, will be historical and analytical. We will discuss the relevant debates in the Constitutional Convention, the state ratifying conventions, views set forth in The Federalist Papers, and comments, arguments and practice of the early founding period, including the celebrated debate in 1793 between James Madison and Alexander Hamilton on the allocation of war and foreign affairs powers. In addition, we will engage in a historical tour reviewing assertions of war powers on behalf of the President and Congress, ranging from actions of Abraham Lincoln’s actions during the Civil War, to claims made by 20th Century presidents during the Cold War, to 21st Century executive assertions of power in the Age of Terrorism.
There is no denying the impact of war on civil liberties across a vista of 200 years. We will discuss, through the prism of Supreme Court decisions, and presidential and congressional actions, the status of civil liberties during times of war. We will, for example, follow the Court’s foundational rulings on freedom of speech during World War I; the internment and due process rights of Japanese-American citizens during the World War II; the religious rights of citizens to assert the claim of “conscientious objection”; the judicial rulings on the freedom of the press across the decades, culminating in the landmark Pentagon Papers Cases in 1971, and, among others, the rights of protestors and dissidents during wartime.
In sum, we seek to further empower teachers in their classroom efforts to facilitate students’ understanding of how the Constitution governs the decision to go to war, the conduct of it, and the status of the Bill of Rights in times of warfare. In addition to lectures, we will read two outstanding books and a number of widely read scholarly articles. As always, in the spirit of James Madison, we encourage vigorous questions and discussions.