Article I, Section 8, Clause 11:

[The Congress shall have Power . . . ] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; . . .

When the Constitution’s Framers gathered in Philadelphia to draft the Constitution, one of their principal objectives was to improve the United States’ ability to ensure its peace and security through military protection.1

( “The Framers ‘had emerged from a long struggle which had taught them the weakness of a mere confederation,’ so ‘they established a Union which could fight with the strength of one people under one government entrusted with the common defence.’” ) (quoting ); (describing changes to congressional war powers as one of the “recognized necessities” of the Constitution’s adoption); The Federalist No. 41 (James Madison) ( “Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the American union.” ). In line with that aim, the Preamble makes securing the common defense one of the Constitution’s principle purposes,2 and the articles that follow allocate broad control over national security to the federal government while denying most war powers to the states.3

Although courts and commentators occasionally discuss the “war power” as if it were a unified authority,4

; , abrogated by ; . the Supreme Court has explained that “the Constitution spells out the war powers not in a single, simple phrase, but in many broad, interrelated provisions.” 5 In Article I, the Constitution empowers Congress to “provide for the common defense” through a set of enumerated authorities concerning war and national security.6 Central among these powers is Clause 11 of Article I, Section 8, which authorizes Congress to declare war. Clause 11 also empowers Congress to issue letters of marque and reprisal, which are instruments that permit private citizens to capture or destroy enemy property, and permits Congress to authorize rules concerning captures of enemy property on land or at sea.7

Apart from Clause 11, other clauses in Article I, Section 8, grant Congress the power to define and punish offenses against the law of nations; raise and support armies; establish and maintain a navy; make rules for the armed forces; “provide for calling forth the Militia” ; and “provide for organizing, arming, and disciplining, the Militia, and for governing” the militia when in the service of the United States.8 General congressional authorities, such as the power over appropriations9 and the Necessary and Proper Clause, supplement Congress’s enumerated war powers. Finally, the Supreme Court has sometimes stated that the United States possesses inherent war powers that derive from its role as a10 sovereign country rather than from an affirmative grant in the Constitution.11

( “[T]he investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, [and] to conclude peace . . . if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality.” ); ( “The war power vested in the government implied all this without any specific mention of it in the Constitution.” ). See also (opinion of Taney, C.J.) ( “All the powers which relate to our foreign intercourse are confided to the general government.” ); (opinion of Paterson, J.)( “In every government, whether it consists of many states, or of a few, or whether it be of a federal or consolidated nature, there must be a supreme power or will; the rights of war and peace are component parts of this supremacy . . . .” ). Other times, however, the Court has expressed the view that the federal governments’ war powers, while expansive, “are only those which are to be derived from the Constitution . . . .” 12

Footnotes

1

See, e.g.,

Torres v. Tex. Dep’t of Pub. Safety,

597 U.S. 580, 594 (2022)

( “The Framers ‘had emerged from a long struggle which had taught them the weakness of a mere confederation,’ so ‘they established a Union which could fight with the strength of one people under one government entrusted with the common defence.’” ) (quoting

Lichter v. United States,

334 U.S. 742, 780 (1948)

);

Selective Draft Law Cases,

245 U.S. 366, 381 (1918)

(describing changes to congressional war powers as one of the “recognized necessities” of the Constitution’s adoption); The Federalist No. 41 (James Madison) ( “Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the American union.” ).

2

See U.S. Const. pmbl. For analysis of the Preamble, see and subsequent essays.

3

See U.S. Const. art. I, § 10, cl. 1 ( “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal” ); id. art. I, § 10, cl. 2 ( “No State shall, without the Consent of Congress, . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” ). For additional background on limitations on states, see . The Constitution also limits individuals’ power to engage in war by defining treason as “levying War” against the United States. U.S. Const. art. III, § 3, cl. 1.

4

See, e.g.,

Trop v. Dulles,

356 U.S. 86, 93 (1958)

;

Korematsu v. United States,

323 U.S. 214, 217 (1944)

, abrogated by

Trump v. Hawaii,

Trump v. Hawaii, 585 U.S. 667 (2018)

;

Hamilton v. Dillin,

88 U.S. (21 Wall.) 73, 87 (1875)

.

5

Torres,

597 U.S. at 590

.

6

See U.S. Const. art. I, § 8, cl. 1 ( “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States . . . .” ). See also Ex parte Quirin, 317 U.S. 1, 25–26 (1942) (describing the common defense as one of the “common objects of the Constitution” ).

7

U.S. Const. art. I, § 8, cl. 11.

8

U.S. Const. art. I, § 8, cls. 1, 10–16.

9

U.S. Const. art. I, § 9, cl. 7 ( “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law” ). For background on Congress’s appropriations power, see .

10

The Necessary and Proper Clause permits Congress to make laws “necessary and proper for carrying into execution” both its own powers and all other powers that the Constitution authorizes, including the President’s war power under Article II of the Constitution. See U.S. Const. art. I, § 8, cl. 18. For background on the Necessary and Proper Clause see .

11

See

United States v. Curtiss-Wright Corp.,

299 U.S. 304, 318 (1936)

( “[T]he investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, [and] to conclude peace . . . if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality.” );

Hamilton v. Dillin,

88 U.S. (2 Wall.) 73, 87 (1875)

( “The war power vested in the government implied all this without any specific mention of it in the Constitution.” ). See also

Holmes v. Jennison,

39 U.S. (14 Pet.) 540, 570 (1840)

(opinion of Taney, C.J.) ( “All the powers which relate to our foreign intercourse are confided to the general government.” );

Penhallow v. Doane,

3 U.S. (3 Dall.) 54, 80 (1795)

(opinion of Paterson, J.)( “In every government, whether it consists of many states, or of a few, or whether it be of a federal or consolidated nature, there must be a supreme power or will; the rights of war and peace are component parts of this supremacy . . . .” ).

12

See, e.g.,

Torres v. Tex. Dep’t of Pub. Safety,

597 U.S. 580 (2022)

(abrogating state sovereign immunity and upholding servicemembers’ right to enforce employment discrimination law against a state agency);

Dameron v. Brodhead,

345 U.S. 322, 324 (1953)

(upholding constitutionality of federal legislation exempting servicemembers from taxation by local and state government where the servicemember is stationed);

McKinley v. United States,

249 U.S. 397, 399 (1919)

(holding that Congress had constitutional power to promote health, safety, and efficiency of servicemembers by prohibiting brothels near military posts);

Hamilton v. Ky Distilleries & Warehouse Co.,

251 U.S. 146, 156 (1919)

(upholding constitutionality of wartime prohibition of trafficking “in order to guard and promote the efficiency of the men composing the army and the navy and of the workers engaged in supplying them arms” ).