Jonah Patel
Wartime policies have often led to constitutional debates, especially regarding the suspension of constitutional rights and the jurisdiction of military law. The US Constitution grants Congress the power to declare war, raise armies, and make rules for the government of armed forces. However, the extent of these powers and their impact on individual liberties have been questioned and challenged in landmark cases such as Ex parte Milligan and Duncan v. Kahanamoku. These cases explored the limits of military jurisdiction and the applicability of constitutional rights during times of war, both domestically and in US-acquired territories. The courts have generally asserted that constitutional rights cannot be suspended unless civil law enforcement becomes impossible due to armed hostilities. The balance between national security and individual freedoms during wartime remains a complex and evolving issue in constitutional law.
| Characteristics | Values |
|---|---|
| Constitutional rights during wartime | Military law supersedes constitutional limitations in areas where military operations are taking place |
| Constitutional rights may not be suspended during times of war or other crises, except where armed hostilities have made civil law enforcement impossible | |
| The applicability of constitutional rights in US-acquired territories is dependent on whether Congress designates the area as "incorporated" or "unincorporated" | |
| The President's determination is not conclusive in the absence of restraining legislation | |
| The authority granted by Congress to a territorial governor to declare martial law does not warrant the replacement of civil courts with military tribunals when civil courts are functioning |
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What You'll Learn
The US Constitution's applicability in US-acquired territories
The applicability of the US Constitution in US-acquired territories has been a subject of debate and interpretation by the Supreme Court in a series of early 20th-century decisions known as the Insular Cases. These cases considered the extent to which the Constitution and federal laws applied to newly acquired territories. The Insular Cases include De Lima v. Bidwell, Dooley v. United States, Armstrong v. United States, Downes v. Bidwell, and Hawaii v. Manchiki.
The Court's doctrine suggests that the Constitution does not automatically apply to all territories acquired by the US. The determination of whether the Constitution applies depends on whether Congress designates the area as "incorporated" or "unincorporated" territory. This distinction has significant implications for the rights and protections afforded to individuals in these territories.
In the case of Ex parte Milligan, the Court upheld civil liberties during times of war or crisis, stating that constitutional rights cannot be suspended and civilians subjected to military justice unless armed hostilities have made civil law enforcement impossible. Similarly, in Duncan v. Kahanamoku, the Court asserted that the authority granted to the territorial governor of Hawaii to declare martial law did not justify replacing civil courts with military tribunals for trying civilians for civilian crimes when civil courts were functioning.
However, in Reid v. Covert, Justice Black asserted in a plurality opinion that the United States must act "in accordance with all the limitations imposed by the Constitution", suggesting that constitutional protections should extend to US actions both within and outside the country. Nonetheless, this view was not shared by the majority of the Court, and the case involved the trial of a US citizen abroad, making the interpretation of the Court's stance on the matter complex.
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The suspension of constitutional rights during war
During the Cold War, for example, there was a mixed pattern of upholding and vitiating legislation targeting the Communist Party and its followers. In one notable case, the Court struck down a congressional statute as an infringement of the First Amendment, illustrating the ongoing tension between national security concerns and individual freedoms. This case demonstrated that even in times of war or crisis, certain rights, such as freedom of association, must be protected.
The detention and relocation of Japanese Americans during World War II represent a significant breach of constitutional rights. The Court's decision to uphold the Espionage Act of 1917 and a state law prohibiting advocacy against prosecuting war reinforced the government's powers during wartime. However, Justice Holmes acknowledged the inherent conflict between national security and free speech, highlighting the delicate balance in upholding constitutional rights during war.
The interpretation of constitutional rights in wartime has also extended beyond US borders. In Reid v. Covert, Justice Black asserted that US actions abroad must still adhere to constitutional limitations. However, this case involved the trial of a US citizen abroad, and the Court's opinion was not universally accepted, leaving the applicability of constitutional protections in foreign territories ambiguous.
The writ of habeas corpus, a critical safeguard against unlawful detention, has been suspended four times in US history, including during the Civil War and in specific regions facing extraordinary circumstances. The Suspension Clause aims to balance executive powers and judicial oversight, reflecting the complex nature of constitutional rights during crises.
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Military tribunals vs civil courts
Military tribunals are military courts designed to try members of enemy forces during wartime, operating outside the scope of conventional criminal and civil proceedings. The judges are military officers and act as jurors. Military tribunals are distinct from courts-martial, which generally take jurisdiction over only members of their own military. Military tribunals are usually used to try members of an enemy army, held in military custody, and accused of violating the laws of war.
The use of military tribunals in cases involving civilians has been controversial. Critics of the Civil War military tribunals argued that they had become a political weapon, with no legal recourse for the accused except through an appeal to the President. The U.S. Supreme Court agreed, ruling in Ex parte Milligan (1866) that military tribunals used to try civilians in any jurisdiction where civil courts were functioning were unconstitutional. The Court held that, except in areas where armed hostilities have made the enforcement of civil law impossible, constitutional rights may not be suspended and civilians subjected to military justice.
In Duncan v. Kahanamoku, the Court declared that the authority granted by Congress to the territorial governor of Hawaii to declare martial law under certain circumstances did not warrant the replacement of civil courts with military tribunals for the trial of civilians for civilian crimes when civil courts were functioning.
However, military tribunals have been used to try civilians in certain circumstances. During the Civil War, military tribunals were used to try Native Americans who fought against the United States, as well as Democratic politicians Clement L. Vallandigham, Lambdin P. Milligan, and Benjamin Gwinn Harris. In the aftermath of World War II, President Franklin D. Roosevelt ordered a military tribunal for eight German prisoners accused of espionage and planning sabotage in the United States. More recently, the administration of George W. Bush sought to use military tribunals to try "unlawful enemy combatants" held at Guantanamo Bay, Cuba.
The Military Justice Act of 1983 gave the U.S. Supreme Court the authority to review decisions from the U.S. Court of Appeals for the Armed Forces. The U.S. Court of Military Appeals was replaced by a civilian court in 1995, which hears appeals from the four Courts of Criminal Appeals (Air Force, Army, Coast Guard, Navy-Marine).
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Congress's power to declare war
The United States Constitution grants Congress the sole authority to issue formal war declarations. Article One, Section Eight of the Constitution states, "Congress shall have power to ... declare War." This provision, known as the Declare War Clause, serves as a limit on presidential power and a safeguard against executive overreach in military matters.
Historically, Congress's approval was deemed necessary for engaging in armed conflicts. For instance, Congress issued a formal declaration of war for the War of 1812 and approved lesser uses of force, such as the Quasi-War with France in 1798 and conflicts with Native American tribes. However, modern presidents have, on multiple occasions, utilised military force without formal declarations or explicit congressional consent. This ambiguity surrounding the Declare War Clause stems from its limited judicial interpretation and the absence of a precise definition of "declaration of war" in the Constitution.
The interpretation of the Declare War Clause is subject to debate, with some arguing that it grants the president independent authority to use military force in response to sudden attacks or in situations that do not amount to war, such as peacekeeping operations. In the Prize Cases in 1863, the Supreme Court upheld President Lincoln's blockade of the southern states after their attack on Fort Sumter, but the source of his authority remained ambiguous. Similarly, President George W. Bush's deployment of troops to Saudi Arabia after Iraq's invasion of Kuwait likely fell under his commander-in-chief powers rather than the Declare War Clause.
Despite the president's ability to act without formal declarations, Congress has asserted its war powers through specific authorisations or more open-ended resolutions. For example, Congress authorised President Bush to use force against Iraq, and it authorised the use of force to protect U.S. interests in Southeast Asia, leading to the Vietnam War. While these actions are generally considered constitutional, there may be disagreements about the scope of the authorisations. Additionally, Congress has proposed amendments, such as the Ludlow Amendment, which would require a national referendum before a declaration of war, further emphasising its role in checking the executive's war powers.
In conclusion, while Congress holds the constitutional power to declare war, the dynamic between congressional authorisation and presidential action has evolved over time. Modern presidents have expanded their authority to use military force without formal declarations, often relying on indirect congressional actions or the absence of objection as implicit consent. Nonetheless, Congress continues to play a crucial role in overseeing and authorising the use of military force, even if formal declarations of war have become less frequent.
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Funding time limits for the military
The US Constitution places a two-year limit on appropriations of money for the use of raising and supporting armies. This limitation was included due to the fear of standing armies, as alluded to by Justice Joseph Story. In the past, this has resulted in funding shifts from the general military budget to specific war budgets, such as the Afghanistan war budget.
The military budget of the United States is the largest portion of the discretionary federal budget allocated to the Department of Defense (DoD) and any military-related expenditures. This budget covers salaries, training, healthcare, maintenance of arms and equipment, operations, and the development and purchase of new items for the six branches of the US military.
The US Constitution's two-year limit on military funding appropriations aims to provide flexibility in spending. However, this has resulted in challenges for long-term planning and procurement, as funding priorities can become locked in, hindering new projects and procurement efforts. Additionally, flat budgets, rising personnel costs, and unpredictable funding have impacted the sustainability of modernization efforts, military pay raises, and domestic policy initiatives.
To address these challenges, timely and predictable appropriations are essential. While continuing resolutions provide short-term stability, they can hinder long-term strategic transformation. The Trump administration's FY 2026 budget request aimed for a one-trillion-dollar budget to fund a modern and globally competitive military, reflecting a shift in defense priorities.
In summary, the US Constitution's two-year funding limit for the military aims to prevent the risks associated with standing armies. However, the practical implications of this time limit have resulted in complex funding shifts and challenges for long-term planning and modernization efforts. To overcome these obstacles, timely and predictable appropriations are necessary to support a sustainable and adaptable military.
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