One hundred years ago this month, the United States entered World War I. That event prompted the utterance of one of the most frequently cited legal axioms in war powers jurisprudence: “The power to wage war is the power to wage war successfully.”
Matthew Waxman, the Liviu Librescu Professor of Law and chair of the Hertog Program on Law and National Security, had long known that the phrase was coined by Charles Evans Hughes, Sr., a brilliant legal mind who had served two separate tours of duty on the U.S. Supreme Court. But about four years ago, Waxman began wondering about the precise context in which it had arisen.
Hughes had been an associate justice from 1910 until 1916 when he resigned to run for president, and then had served again as chief justice, from 1930 to 1941, stepping down six months before Pearl Harbor. What intrigued Waxman was why Hughes (Class of 1884) had been addressing war powers when Hughes never sat on the Court while the country was at war.
This question ultimately led to Waxman’s fascinating piece of research, published as a 79-page Columbia Law Review article entitled, “The Power to Wage War Successfully.”
It turns out that Hughes didn’t write the words during either of his terms on the Supreme Court. Nor, for that matter, did he pen them during his stint as a judge on the Permanent Court of International Justice in The Hague (1928 to 1930). Nor while he was serving as governor of New York (1907 to 1910) or as U.S. secretary of state (1921 to 1925).
Rather, he authored the phrase as a private citizen. Those words—along with several other talismanic phrases now generally accorded the authority of Supreme Court pronouncements—were actually part of an address Hughes delivered at an American Bar Association conference on the evening of September 5, 1917, in Saratoga Springs, New York.
The speech was prompted by constitutional debates over a national draft and other issues that are now somewhat “anachronistic,” Waxman notes. Still, as Waxman’s research reveals, Hughes’s approach to tackling questions about constitutional war powers remains enlightening and relevant, even at a time when the U.S. grapples with wars against stateless terrorism.
A discovery in the archives
As Waxman dug into Hughes’s speech, he eventually sent his student research assistant, Ian MacDougall ’14, to the Columbia Rare Book and Manuscript Library, to which Hughes had donated his archives. There, MacDougall found a thick file labeled “War,” filled with the research Hughes had performed for the speech, scribbled with his handwritten notes.
“Those files were a great archeological tool for excavating what was really going on in Hughes’s mind,” says Waxman. “He wanted this to be an impactful speech. He wanted it to have staying power. Which it has.”
The backdrop for this speech was unusual. The previous November, Hughes, the Republican candidate, had lost a close presidential election to the incumbent Woodrow Wilson. “On election night,” Waxman says, “Hughes actually went to sleep being told by his advisers that he’d won.”
But back then it took several days for votes to be tallied, he continues. “Hughes ended up losing California by fewer than 4,000 votes, and that swung the Electoral College in Wilson’s favor.”
After Congress declared war in April 1917, President Wilson signed into law the Selective Service Act, creating a compulsory draft, as well as certain legislation designed to regulate the wartime economy. Though the constitutionality of such measures would be taken for granted today, Waxman explains, at the time they were considered radical, and their validity was hotly contested. (This was before the New Deal, when the Supreme Court broadened its interpretation of the Commerce Clause, giving Congress a much freer hand vis-à-vis economic regulation.)
A momentous speech
In his ABA speech, then, Hughes was mounting a vigorous constitutional defense of controversial actions undertaken by the opposing party’s president. Moreover, says Waxman, “I really have a hard time thinking of anybody today that could speak with the same kind of political, legal and intellectual authority that he had in 1917.”
The day after the speech, Hughes’s views were trumpeted on the front page of The New York Times in an article that also excerpted lengthy portions of the address itself. Soon thereafter, the ABA published the entire talk, with footnotes, as an 18-page article in its annual report. Hughes's speech was also entered into the congressional record.
In the address, Hughes argued that portions of the Constitution could, and had to be, read more leniently in wartime. On the other hand, government’s expansive powers would retract to normal scope as soon as the war ended.
“Ours is a fighting Constitution,” he argued, in another frequently cited passage, and it “marches,” meaning that it must evolve to meet changing needs. Hughes reasoned that Congress’s expansive wartime powers were implicit in the Constitution’s “Necessary and Proper Clause,” which gave Congress the power “to make all Laws which shall be necessary and proper for carrying into execution…all other powers vested by this Constitution.”
At the time, Waxman explains, Hughes was steering a middle path, between those who insisted that the Constitution imposed an inflexible straitjacket on government powers, and those who argued that it simply ceased to apply in the face of wartime exigencies.
Why the words live on
Later, when Hughes became chief justice, he incorporated certain lines from the speech, including the one about the “power to wage war successfully,” into the text of a 1934 ruling he published on a peacetime matter—one in which he was analogizing the emergency presented by the Great Depression to those presented by war.
Finally, in 1948—two months after Hughes’s death—Justice Harold Burton, in a wartime contracting case called Lichter v. United States, quoted long sections of Hughes’s ABA speech in his ruling.
“I’ve never seen another source document, let alone a piece written by a private citizen, quoted at such length in a Supreme Court opinion,” Waxman observes. “It’s almost as if [Burton] is trying to read Hughes’s speech officially into the Supreme Court record, giving it the imprimatur of precedent.”
To be sure, Waxman acknowledges, Hughes’s speech also had “some darker aspects.” Hughes’s language was later relied upon, for instance, in the now notorious Japanese internment cases during World War II, upholding the president’s wartime power to detain Japanese-American citizens in camps. Expansive wartime powers “could be abused,” Waxman says, “and that’s one of the issues Hughes doesn’t adequately discuss in the speech.”
In addition, he notes, Hughes had imagined that the expansive contours of the war powers would snap back to their normal dimensions as soon as peace was restored. In practice, however, that has seldom occurred. National security threats have been found to linger after armistices were signed and to loom prior to the outbreak of hostilities. Today, in the face of the ever-present threat of terrorism, the line between “peacetime” and “wartime” has become more blurred than ever.
But the central claims of the address, according to Waxman—that we have a “fighting constitution” which confers the flexibility required to “wage war successfully”—remain valid and timeless. “Our Constitution grew out of the Revolutionary War experience,” he says. “It was framed by great American theorists who knew that the long-term viability of the democratic republic would depend on its effectiveness in war.”
Read Matthew Waxman's Columbia Law Review article, "The Power to Wage War Successfully."
Published April 27, 2017