AMERICA'S POWER TO MAKE WAR

Dominion, Volume 11, Issue 50, 22 November 1917, Page 6

AMERICA'S POWER TO MAKE WAR

feOW THE CONSTITUTION BACKS THE

PRESIDENT

SOME INTERESTING POINTS

No clause in the Constitution of the United States can be so interpreted as to raiso a bar against the adoption 'by the Government., of any measure which would,' aid in the successful prosecution of'the war. "Self-preserva-ition," said.. Judge Hughes, of the .United States Supreme Court, in a recent address to the American Bar Association, "is the first law of national life, and the Constitution itself provides the necessary power in order to defend and preserve the United States. Tlio war powers under the Constitution are carefully distributed. To Congress is given the power 'to declare war.' Tlio proposal to add 'to make peace' found no favour, as this was deemed to belong to the treaty-making power vested fin the President and the Senate. To the President was given the direction of war as the Commander-in-Chief of .the Army and Navy. It was not in /contemplation of the Constitution that Tfthe command of forces and the conduct Jof campaigns should he in charge of a council or that as to this there sliould fhe division of authority or responsibility. The prosecution of war demands lin the highest dejyee the promptness, 'directness, and unity of action in military operations which alone can proceed from tho Executive. This exclujsive power to command the army and iiiavy and thus to direct and control 'campaigns exhibits not autocracy, but 'democracy, fighting effectively through [its chosen instruments and in accordjance with the established organic law. ' ' The constitutional authority vested fin Congress is not limited by any qualification arising from religious beliefs or 'conscientious objections. These are Imatters not affecting power, but policy jlAs Mr. Justice Harlan said in delivering an opinion of the Supreme Court. liono 'may be compelled, by force if bleed be, against his will and without Iregard to his personal wishes or his (pecuniary interests, or even shis religious or political convictions, to take fliis place in tho ranks of the army ,'iof his country, and risk the chance of Kiting shot down in its defence.' It is, (however, in my judgment, a sound [policy on the part of Congress to provide for the discharge from the draft of (conscientious objectors. Nothing, I believe, 'is gained for tho country jty overriding the claims of conscience in such cases; hut it is obviously that there should be such ('definitions and restrictions as will preivent imposture and evasion by those Who have as little conscience as they Slave stomach for war.

Scope of the Powers Conferred.- • i "The power to wage war is the power to wage war successfully. Tho iframers of the Constitution were under ino illusions as to war. They had emerged from a long struggle which (had taught them the weakness of a mere confederation, and they had no |hope that they could hold what they jhad won save' as they established a [Onion which could fight with the strength of one people under one ■Government entrusted with the com'7lloll defence. In equipping the rlaijtional Government with the r.eeded authority ,in war, they tolerated no limivtationa inconsistent "with that object, [as they realised that the very existence of the nation might be at stake land that every resource of _ the people 'must be at command. Said Madison fin the 'Federalist,' 'Security against ■foreign danger is one of the primitive (objects of civil society.' It is an avow,'ed and essential object of the American Union. The powers requisite for 'attaining it must be effectually conjfidcxl to the Federal councils." Mr. Hughes then explained the powders of the Government is wartime in •Telation to taxation,, punishment of •treason, and. tho guarantee of personal .'and property rights. In this regard ■lie pointed out that the Supreme Court ■lind decided that Congress was without power to provide for the trial of citiizens hy military commissions save in ithe locality ,of actual war and where jfchere was no access to the Courts. the regulation of business he ■Said, ' "The extraordinary circumstances ot jwar may bring particular business and enterprises clearly intp. tho category of :!thoso which are "affected with a public interest and which demand immedjate ■and thoroughgoing public regulation. .The production and distribution of foodstuffs, . articles, of prime necessity, ■.those which liave direct relation to military efficiency, those which are absolutely required for "the support of tlio people during the stress of conflict, are ■plainly of this sort. Reasonable recusations to safeguard the resources upon 1 * j -which we depend for military success ■must be regarded as being-within the iipowers confided to Congress to enable ; it to prosecute a successful war. "Similarly, it may be said that the power has been expressly given to Congress to prosecute war and to pass all laws which 6hall be necessary and proper for carrying that power into execution.' That power explicitly conferred and absolutely essential to the safety of the nation is' not destroyed or impaired by any later provision of the Constitution or by any one of the amendments. may_ all be construed so as to avojd making the Constitution self-dostru.ctive ; so as to preserve the rights of the citizen from unwarrantable attack, while assuring beyond all hazard tho common defence "and the perpetuity of our liberties. Theso rest upon the preservation of the nation." '