Matthew C. Waxman (Columbia Law School) has posted The Power to Wage War Successfully (Columbia Law Review, forthcoming) on SSRN. Here is the 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. It was in that address that 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. It also shows, however, how he 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 wars against transnational terrorist groups.
In my view, and with all respect to Hughes, it should be clear that as an original matter the power to wage war is not the power to wage war successfully. Indeed, that proposition is the antithesis of the framers' idea of limited government. But Hughes' view — that Congress' powers expand as needed to accomplish what he thought ought to be accomplished — is typical of the Progressives' outlook of the time.
Posted at 6:35 AM