Document Type

Article

Publication Date

2017

Center/Program

Roger Hertog Program on Law and National Security

Abstract

A century ago and in the midst of American involvement in World War I, future Chief Justice Charles Evans Hughes delivered one of the most influential lectures on the Constitution in wartime. In it he uttered his famous axiom that “the power to wage war is the power to wage war successfully.” That statement continues to echo in modern jurisprudence, though the background and details of the lecture have not previously been explored in detail. Drawing on Hughes’s own research notes, this Article examines his 1917 formulation and shows how Hughes presciently applied it to the most pressing war powers issues of its day— namely, a national draft and intrusive federal economic regulation. Though critical to supporting American military operations in Europe, these were primarily questions about Congress’s domestic authority—not the sorts of interbranch issues that naturally come to mind today in thinking about “waging war.” This Article also shows, however, how Hughes struggled unsuccessfully to define when war powers should turn off or revert to peacetime powers. The story of Hughes’s defense of (and later worry about) expansive wartime powers in World War I sheds much light on present constitutional war powers and debates about them, including in the context of indefinite and sweeping wars against transnational terrorist groups.

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