FACULTY PERSPECTIVE
“I suggest that if an armed conflict abroad, however warlike, is claimed to change the constitutional powers of government in domestic law, including the Bill of Rights, then surely that change from peace to war must be declared explicitly by Congress, not by the president.”
clause sheds no light on whether “war” matters. The answer cannot vary simply with the violence of any given conflict. Judges, too, yield to the temptations of rhetoric. Take the First Amendment: In 1919, Justice Oliver Wendell Holmes asserted broadly, “When the nation is at war, many things that may be said in times of peace” may be forbidden “as long as men fight, and no court could regard them as protected by any constitutional right.” In fact, the First Amendment contains nothing to limit its freedom of dissent or criticism of the government’s conduct of a war, nor freedom to debate facts that the government thinks important to suppress. But if Holmes were right — and other judges have followed him in these dicta — then it would matter whether a state of war exists or not. The Constitution assigns to Congress the power to declare war — or not to declare war. Formal declarations of war may not fit many uses of military force, which Congress can and does authorize in other terms, as against Iraq. But not every breach of the peace is a war. I suggest that if an armed conflict abroad, however warlike, is claimed to change the constitutional powers of government in domestic law, including the Bill of Rights, then surely that change from peace to war must be declared explicitly by Congress, not by the president.
When the nation faces some threat requiring armed response, the Constitution may allow a president to respond, but nothing suggests that a president can declare the nation to be at war — assuming that “war” matters at all. Of course, “war” now may be only military reality and political rhetoric. The term may make no difference in constitutional law, except for two further mentions of “war”: in the treason clause of Article III and in the Third Amendment’s ban on quartering soldiers in private homes in peacetime. If “war” did matter constitutionally, a president would be better advised to ask Congress to declare it, as it had in the court cases arising during the two world wars on which government lawyers now try to rely. Which view of “war” is preferable? There are few benchmarks defining constitutional consequences solely of a congressional declaration of war, without any other warlike action. But in times of actual or threatened large-scale combat, Congress may be more ready to declare war than to focus on its potential legal consequences. It may be safer, perhaps, to insist that Congress consider and enact each of the proposed consequences on its merits and to confine the domestic relevance of “war” to politics rather than to constitutional law. — Hans A. Linde Excerpted from remarks to the Oregon State Bar Section on Constitutional Law, Nov. 3, 2006.
Distinguished Scholar in Residence After earning his law degree from the University of California at Berkeley, Hans A. Linde served as law clerk to U.S. Supreme Court Justice William O. Douglas. He then went on to work as a staff lawyer in the U.S. State Department’s Office of Legal Adviser and a legislative assistant to Oregon Sen. Richard L. Neuberger. Linde taught law at the University of Oregon and was a visiting professor at a number of prestigious schools across the country, including Stanford University and New York University. He was a Fulbright lecturer in Freiburg and Hamburg, as well as at Willamette University. His publications include a course book on Legislative and Administrative Processes and nearly 100 articles, lectures and reviews. Linde served on the Oregon Supreme Court from 1977 to 1990. He was a member of Oregon’s Commission on Constitutional Revision and of the Public Commission on the Oregon Legislature. He is a member of the Council of the American Law Institute and a fellow of the American Academy of Arts and Sciences. A distinguished scholar in residence at the College of Law, Linde has served on the Oregon Law Commission since its inception in 1997.
Spring 2007 |
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