ArtI.S8.C13.1 Congress's Naval Powers

Article I, Section 8, Clause 13:

[The Congress shall have Power . . . ] To provide and maintain a Navy; . . .

Among the powers the states granted the U.S. Government pursuant to the Constitution was the power set forth at Article I, Section 8, Clause 13, to provide and maintain a navy. The Framers saw a navy as essential to the ability of the United States “to dictate the terms of the connection between the old and new world.” 1 Among other things, the Framers viewed a navy as critical to whether the United States would be commercially independent of foreign naval powers, which might otherwise use their control of the seas to dictate terms under which the United States could trade.2 Likewise, the Framers were concerned that, absent a navy, foreign nations could impede American citizens’ access to the nation’s fisheries or prevent them from navigating the Great Lakes and the Mississippi unimpaired.3

Not only was a navy essential to the nascent United States’s viability but the Framers perceived that the vulnerabilities of individual states to the predations of foreign powers could only be addressed effectively and economically by the combined resources of the states—in short, by the United States. Recognizing this, John Jay asked during the Constitution’s ratification: “Leave America divided into thirteen, or if you please into three or four independent Governments, what armies could they raise and pay, what fleets could they ever hope to have?” 4 Similarly, Alexander Hamilton noted the inadequacy of any individual state to support a navy, commenting: “A navy of the United States, as it would embrace the resources of all, is an object far less remote than a navy of any single State or partial confederacy, which would only embrace the resources of a single part.” 5

The Articles of Confederation and initial drafts of the Constitution provided for Congress “to build and equip” fleets.6 The Framers, however, ultimately settled on the language “to provide and maintain a Navy.” While this change appears to have elicited little debate at the Constitutional Convention, delegates at state ratification conventions expressed concern that a standing navy would provoke Great Britain and other European naval powers, possibly leading to wars.7 Delegates to state conventions also argued that the cost of maintaining a navy would be excessive,8 while others responded that a navy would be necessary to encourage national objectives such as commerce and navigation.9 Supporters of a navy also reasoned that it would allow the Federal Government to maintain its rights to fisheries and protect the Atlantic seaboard in the event of attack.10

The Supreme Court has recognized that the Constitution’s grant of authority to Congress over the Navy under Article I, Section 8, Clause 13 in conjunction with its grant of authority “[t]o raise and support Armies” 11 and “to make Rules for the Government and Regulation of the land and naval Forces” 12 requires the Court to provide great deference to Congress’s decisions regarding the military and national defense.13 For instance, in Rostker v. Goldberg, the Court observed: “The case arises in the context of Congress’s authority over national defense and military affairs, and perhaps in no other area has the Court accorded Congress greater deference.” 14 Likewise, in Torres v. Texas Department of Public Safety, the Supreme Court found that Congress’s authority “[t]o provide and maintain a Navy” and “[t]o raise and support Armies” gives it broad authority to achieve these objectives, including power to provide “returning veterans the right to reclaim their prior jobs with state employers” and the right to sue if state “employers refuse to accommodate them” notwithstanding the State sovereign immunity doctrine.15 In another example of the breadth of power the Constitution grants Congress pursuant to its powers “[t]o provide and maintain a Navy” and “to raise and support Armies,” the Court found in United States v. Bethlehem Steel Corporation that the Government could recoup excess profits from a shipbuilder.16 The Court stated:

The Constitution art. 1, s 8 grants to Congress power ‘to raise and support Armies', ‘to provide and maintain a Navy', and to make all laws necessary and proper to carry these powers into execution. Under this authority Congress can draft men for battle service. Its power to draft business organizations to support the fighting men who risk their lives can be no less.17

The Federalist No. 11 (Alexander Hamilton). See also The Federalist No. 4 (John Jay) ( “The extension of our own commerce in our own vessels cannot give pleasure to any nations who possess territories on or near this Continent, because of the cheapness and excellence of our productions, added to the circumstance of vicinity, and the enterprize [sic] and address of our merchants and navigators, will give us a greater share in the advantages which thos territories afford, than consists with the wishes or policy of their respective Sovereigns.” ). back
The Federalist No. 11 (Alexander Hamilton) ( “It would be in the power of the maritime nations, availing themselves of our universal impotence, to prescribe the conditions of our political existence; and as they have a common interest in being our carriers, and still more in preventing our becoming theirs, they would in all probability combine to embarrass our navigation in such a manner as would in effect destroy it, and confine us to a PASSIVE COMMERCE. We should then be compelled to content ourselves with the first price of our commodities, and to see the profits of our trade snatched from us to enrich our enemies and persecutors.” ) (capitalization retained). See also The Federalist No. 24 (Alexander Hamilton) ( “If we mean to be a commercial people, or even secure on our Atlantic side, we must endeavor, as soon as possible, to have a navy.” ). back
The Federalist No. 11 (Alexander Hamilton). See also The Federalist No. 15 (Alexander Hamilton) ( “Are we entitled by nature and compact to a free participation in the navigation of the Mississippi? Spain excludes us from it.” ). back
The Federalist No. 4 (John Jay). back
The Federalist No. 11 (Alexander Hamilton). back
Max Farrand, The Framing of the Constitution 141 (1913). back
Joseph Story, Commentaries on the Constitution of the United States § 1189 (1833). back
Id. Justice Story stated: “But the attempt on our part to provide a navy would provoke these powers who would not suffer us to become a naval power. Thus, we should be immediately involved in wars with them. The expense, too, of maintaining a suitable navy would be enormous; and wholly disproportionate to our resources. If a navy should be provided at all, it ought to be limited to the mere protection of our trade. It was further urged, that the Southern states would share a large portion of the burthens [sic] of maintaining a navy, without any corresponding advantages.” Id. back
Id. at § 1190. back
Id. back
U.S. Const. art. I, § 8, cl. 12. back
U.S. Const. art. I, § 8, cl. 14. back
For additional discussion on Congress’s powers with regard to the military and national defense, see ArtI.S8.C14.1 Care of Armed Forces. back
453 U.S. 57, 64–65 (1981). See also Schlesinger v. Ballard, 419 U.S. 498, 510 (1975); United States v. O’Brien, 391 U.S. 367, 377 (1968); Smith v. Whitney, 116 U.S. 167 (1886). back
Torres v. Tex. Dep’t of Pub. Safety, No. 20–603, slip op. at 8 (U.S. June 29, 2022). In making this finding, the Court reasoned that “States may be sued if they agreed their sovereignty would yield as part of the ‘plan of the convention,'—that is, if ‘the structure of the original Constitution itself’ reflects a waiver of States’ sovereign immunity. '[A]ctions do not offend state sovereignty’ if ‘the States consented’ to them ‘at the founding.’” ) (quoting PennEast Pipeline Co. v. New Jersey, No. 19-1039, (U.S. June 29, 2021); Alden v. Maine, 527 U.S. 706, 728 (1999)). back
United States v. Bethlehem Steel Corp., 315 U.S. 289, 305 (1942). back
Id. The Court cited Selective Draft Law Cases (Arver v. United States), 245 U.S. 366 (1918) for Congress’s authority to draft men into military service. Id. back