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ArtII.S2.C1.1.1 Historical Background on the Commander-in-Chief Clause

Article II, Section 2, Clause 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Surprisingly little discussion of the Commander-in-Chief Clause occurred in the Constitutional Convention or in the ratifying debates. From the evidence available, it appears that the Framers vested the duty in the President because experience in the Continental Congress had disclosed the expediency of vesting command in a single official1 and because the lesson of English history was that danger lurked in vesting command in a person separate from the responsible political leaders.2

Early cases and commentary emphasized the purely military aspects of the Commander-in-Chiefship. Alexander Hamilton said the office “would amount to nothing more than the supreme command and direction of the Military and naval forces, as first general and admiral of the confederacy.” 3 In his Commentaries on the Constitution of the United States, Justice Joseph Story wrote of the debates accompanying the ratification of the Constitution, stating: “The propriety of admitting the president to be commander in chief, so far as to give orders, and have a general superintendency, was admitted.” 4 Story took note of the debate regarding the propriety of the President taking command of the armed forces in person, explaining the apparent consensus. He stated: “Though the president might, there was no necessity that he should, take the command in person; and there was no probability that he would do so, except in extraordinary emergencies, and when he was possessed of superior military talents.” 5

The Supreme Court did not think it apparent that the commander-in-chief power necessarily entailed all of the attributes available to a sovereign under the laws and usages of war, even in cases of war declared by Congress.6 The Court held that a declaration of war, by itself, did not empower the President to confiscate enemy property.7

Chief Justice Marshall, while suggesting that the President might, during the limited war authorized against France, have the authority as Commander in Chief to issue orders pertaining to the capture of certain vessels in the absence of legislation, denied the validity of such an order where Congress had enacted a contradictory staute.8 A U.S. commander had captured, pursuant to presidential instructions, what he believed was a U.S. merchant ship bound from a French port, allegedly carrying contraband material.9 Congress had, however, enacted the Non-Intercourse Act, which only provided for the seizure of such vessels bound to French ports.10 The Court held that the President’s instructions exceeded the authority granted by Congress and were not to be given the force of law, and the captain could be held liable for damages.11

In 1850, Chief Justice Taney, writing for the Supreme Court, explained the President’s power during wartime:

His duty and his power are purely military. As commander-in-chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by the legislative power.12

Taney continued and distinguished the role of the Commander in Chief and that of the British king:

But in the distribution of political power between the great departments of government, there is such a wide difference between the power conferred on the President of the United States, and the authority and sovereignty which belong to the English crown, that it would be altogether unsafe to reason from any supposed resemblance between them, either as regards conquest in war, or any other subject where the rights and powers of the executive arm of the government are brought into question.13

Even after the Civil War, a powerful minority of the Court, led by Chief Justice Salmon Chase, described the role of President as Commander in Chief simply as “the command of the forces and the conduct of campaigns.” 14

Earnest R. May, The President Shall Be Commander in Chief, in The Ultimate Decision: The President as Commander In Chief 3, 6–7 (E. May ed., 1960). During the North Carolina Ratifying Convention, James Iredell said: “From the nature of the thing, the command of armies ought to be delegated to one person only. The secrecy, dispatch, and decision, which are necessary in military operations can only be expected from one person.” 4 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 107 (2d ed.1836). back
May, supra note 1, at 18. In the Virginia ratifying convention, Madison, replying to Patrick Henry’s objection that danger lurked in giving the President control of the military, said: “Would the honorable member say that the sword ought to be put in the hands of the representatives of the people, or in other hands independent of the government altogether?” 3 Elliot, supra note 1, at 393. back
The Federalist No. 69 (Alexander Hamilton). back
3 Joseph Story, Commentaries on the Constitution Of The United States § 1492 (1833). back
Id. back
See, e.g., The Thomas Gibbons, 12 U.S. (8 Cranch) 421, 427–28 (1814) ( “As to the authority of the president, we do not think it necessary to consider how far he would be entitled, in his character of commander in chief of the army and navy of the United States, independent of any statute provision, to issue instructions for the government and direction of privateers. That question would deserve grave consideration; and we should not be disposed to entertain the discussion of it, unless it become unavoidable.” ). back
Brown v. United States, 12 U.S. (8 Cranch) 110, 128–29 (1814) ( “It appears to the Court, that the power of confiscating enemy property is in the legislature, and that the legislature has not yet declared its will to confiscate property which was within our territory at the declaration of war.” ). back
Little v. Barreme, 6 U.S. (2 Cranch) 170, 177–78 (1804). back
Id. at 177 (with reference to the Law of February 9, 1799, 1 Stat. 613). back
Id. back
Id. at 179. See also Talbot v. Seeman, 5 U.S. (1 Cranch) 1, (1801) ( “The whole powers of war being by the constitution of the United States, vested in congress, the acts of that body can alone be restored to as our guides in this enquiry.” ). back
Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850). The Court explained that acquisition of foreign territory could be accomplished “only by the treaty-making power or the legislative authority, and [it] is not a part of the power conferred upon the President by the declaration of war.” Id. Congress had declared war against Mexico in 1846. Act of May 13, 1846, ch. 16, 9 Stat. 9. back
Fleming, 50 U.S. (9 How.) at 618. back
Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866). back