In lieu of an abstract, here is a brief excerpt of the content:

C o n s titu tio n a l W a r P o w e rs in W o rld W a r I: C h a rle s E v a n s H u g h e s a n d th e P o w e r to W a g e W a r S u c c e s s fu lly ONMLKJIHGFEDCBA M A T T H E W C . W A X M A N utsrqponmlkj On Se p te m be r 5, 1917, at the height of American participation in the Great War, Charles Evans Hughes famously argued that “the power to wage war is the power to wage war successfully.” This moment and those words were a collision between the onset of “total war,” MLKJIHGFEDCBA L ochner-era jurisprudence, and cautious Progressive-era administrative development. This article tells the story of Hughes’s statement—including what he meant at the time and how he wrestled with some difficult questions that flowed from it. The article then concludes with some reasons why the story remains important today.1 H u g h e s a n d th e F ig h tin g C o n s titu tio n Hughes’s “war powers axiom”—that the power to wage war is the power to wage war successfully—has been widely cited and quoted for the past century in court decisions and briefs. It is often used in executive branch opinions about war powers, including recent ones concerning wars against terrorist organizations. It frequently appears in legal scholarship about war powers. But when Hughes uttered those words that day, he was not doing so as a Supreme Court Justice—or in his other public roles, such as Secretary of State. He was speaking as a private member of the bar. There is some irony that Hughes’s voice would reverberate so influentially in war powers jurisprudence, given that he never ruled on a major war powers case as a judge. He served first on the Supreme Court from 1910 until 1916, when he stepped down to run for President as the Republican candi­ date against incumbent Democrat Woodrow Wilson, whose supporters stressed that he kept us out of the Great War. Hughes then served again, this time as Chief Justice, from 1930 to 1941. Both of these happened to be relatively peaceful, dry spells for significant war powers cases, and in both instances, 2 6 8 ONMLKJIHGFEDCBA J O U R N A L O F S U P R E M E C O U R T H IS T O R Y utsrqponmlkjihgfedcbaZYXWVUTSRQPONM Hu ghe sle ftthe Co u rt le s sthan a y e arbe fo re the Unite dState sde clare d war. In Se p te m be r 1917, when Hughes gave his most detailed analysis of constitutional war powers, he did so in a private capacity, not as a government official of any kind, in a speech to the annual meeting ofthe American Bar Association titled “War Powers Under the Constitution.”2 Hughes defended expansive government powers invoked by Wilson and the Democrat-controlled Congress to wage modern, industrial-age and industrial-scale warfare. By way of context, this was five months after the United States declared war on the side of the Allies against the Central Powers—a war that had already been destroy­ ing Europe for three years.3 During those months, the United States had built from near scratch a massive army unlike any previous American force. In doing so, the federal gov­ ernment had assumed unprecedented pow­ ers over American society. When President Wilson had requested a war declaration from Congress, he pledged not only to defend the United States from immediate aggression but also to prevent the recurrence of war and to make the world safe for democracy. These aims are especially important later in the story. It is hard to imagine today a speech by any modem figure about major constitu­ tional issues that would carry the weight of Hughes’ words. The MLKJIHGFEDCBA N ew York Tim es covered his American Bar Association speech on...

pdf

Share