Three Theories.

Three different views regarding the source of the war power found expression in the early years of the Constitution and continued to vie for supremacy for nearly a century and a half. Writing in The Federalist,1599 Hamilton elaborated the theory that the war power is an aggregate of the particular powers granted by Article I, § 8. Not many years later, in 1795, the argument was advanced that the war power of the National Government is an attribute of sovereignty and hence not dependent upon the affirmative grants of the written Constitution.1600 Chief Justice Marshall appears to have taken a still different view, namely that the power to wage war is implied from the power to declare it. In McCulloch v. Maryland,1601 he listed the power “to declare and conduct a war”1602 as one of the “enumerated powers” from which the authority to charter the Bank of the United States was deduced. During the era of the Civil War, the two latter theories were both given countenance by the Supreme Court. Speaking for four Justices in Ex parte Milligan, Chief Justice Chase described the power to declare war as “necessarily” extending “to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and conduct of campaigns.”1603 In another case, adopting the terminology used by Lincoln in his Message to Congress on July 4, 1861,1604 the Court referred to “the war power” as a single unified power.1605


THE FEDERALIST, No. 23 (J. Cooke ed. 1937), 146–51. back
Penhallow v. Doane, 3 U.S. (3 Dall.) 53 (1795). back
17 U.S. (4 Wheat.) 316 (1819). back
17 U.S. at 407. (emphasis supplied). back
Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866) (dissenting opinion); see also Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1871); and United States v. MacIntosh, 283 U.S. 605, 622 (1931). back
CONG. GLOBE, 37th Congress, 1st Sess., App. 1 (1861). back
Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 86 (1875). back