CHAPTER IX

THE COMMON DEFENSE

1

power

THE next purpose of the people of the United States The war in establishing their Constitution was to provide for the common defense. The power of a body of people to make such provision is usually termed the war power. War is commonly understood to be contention by force and violence between two or more organized bodies of people, and a state of war may be recognized as existing whenever a formidable organization of people pursues its interests by force and violence.

The war power is by nature broad enough to embrace Its nature provision for offensive as well as defensive hostilities, but the language of the Preamble to the Constitution reveals a sentiment on the part of the "Founding Fathers" adverse to aggressive and unnecessary wars. The widest diversity of opinion has existed concerning the nature of the interests that may justify a resort to war. Lord Bacon once remarked that "nobody can be healthful without exercise, neither natural body or politic; and certainly, to a kingdom or estate, a just and honorable war is the true exercise." Many have agreed with Bacon, some of whom have even omitted his qualification that the war should be just and honorable. But whatever may be thought by good citizens about the healthfulness of a just and honorable war, there can be no doubt of the right of the state to engage in such a war, except on the part of those who

1 Sir Francis Bacon, Essays. No. xxix, “Of the True Greatness of Kingdoms and Estates."

The justification of its use

Comparison of war

powers

conscientiously object to any form of physical coercion in the conduct of affairs of state.

The real difficulty for most good citizens is to determine what wars are just and honorable. Those who hold that the sovereignty of so-called sovereign states is without limit, and that the rulers of states have no responsibilities except to cherish their own interests or at most those of their fellow citizens or subjects, are bound to believe that a state may justly and honorably wage war whenever its government deems it advantageous to do so. Those who hold that there is a higher law for the guidance of humanity than that dictated by the interests of particular portions of mankind, organized as states, must conclude that war cannot be justified except upon universal principles of justice. It is outside the scope of this book to consider either the general theory of war or particular proposals for distinguishing just from unjust wars, such as those embodied in the Covenant of the League of Nations. What must be considered here is the connection between the purpose to provide for the common defense and the foundations of the modern commonwealth, and especially the relation between the right of a commonwealth to wage a just war and its duty to secure the blessings of liberty to its people.

The war power is broad enough also to embrace proand police vision for domestic as well as foreign wars. Domestic and civil wars, however, narrow down into hostilities of uncertain character, such as those directed against loosely organized insurrections and unpremeditated local riots. Thus the war power merges into the police power, and it is not easy to draw any clear line between them. Both alike involve the use of force to overcome force. Each accomplishes its purpose, when exerted to its full extent, by imposing physical restraints upon the persons against whom it is invoked. Each imposes legal restraints upon

their right to do as they please. Each deprives individuals of liberty, in the realistic sense of the term, even if used properly, and, if abused, may deprive them also of liberty as it is defined by the political idealists. The practical operation of the war power, therefore, like that of the police power, illuminates the fundamental problems concerning the nature of liberty in the modern commonwealth. On the one hand, the liberty of the people is to be enjoyed upon such conditions as may be laid down by the government in the exercise of its police and war powers, and on the other, the common defense is to be provided for, as domestic tranquillity is to be insured, by methods that are not incompatible with popular liberty.

power and

The blessings of liberty, it is hardly necessary to add, The war must be as much an object of political action in war as in the problem peace, if the state is to qualify as a modern commonwealth. of liberty Certainly there is nothing in the Preamble to the Constitution of the United States to indicate that the purpose of the people to secure the blessings of liberty was less firm than that to provide for the common defense. In this respect the latter was on the same footing as the purpose to insure domestic tranquillity. The limitations upon the police power apply with the same force, as far as they are applicable at all, to the war power. The specific juristic liberties of the people, as far as they are protected against one of these powers, are equally protected against the other. Foremost among these are the fundamental or absolute rights, as Blackstone called them, of personal security, personal liberty, and private property, of which no person may be deprived without due process of law. Many others are specified in the Federal and State Constitutions. Of these others none is more important than those which protect the members of the state in the expression of their opinions, and in their access to the opinions. of others and to the information upon which intelligent

public opinion must be based. Because intelligent and effective public opinion is the very essence of popular government, the protection of its sources and channels of expression is, next to the protection of the people themselves, the most important duty of the government of the modern commonwealth. Hence the prominence of the rights of free speech and of a free presss, of public assembly and of petition, in the revolutionary declarations of rights. Of these particular rights or liberties, the freedom of speech and of the press has received the most Significance attention in modern times. Its history both in peace and

of the history of the

freedom of the press

Freedom of the

press in

State

constitutions

in war (but especially in war, because then the temptation to abridge it is strongest) affords the best commentary upon the nature of the liberties, other than those of the due-process clauses, which the people of a modern commonwealth wish to secure. Its history in time of war should also illuminate the war power itself, since nothing better illustrates the nature of a power than the conflict of power with right.

2

The right to freedom of the press is asserted in all the original declarations of rights adopted by the States dur

the original ing the course of the Revolution. Virginia, the first State to adopt an independent constitution with a declaration of rights, solemnly declared that "the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments." Massachusetts, whose declaration of rights was one of the last and most elaborate to be adopted during the revolutionary period, declared that "the liberty of the press is essential to the security of freedom in a state; it ought not, therefore, to be restricted in this commonwealth." The Massachusetts declaration added: "The freedom of deliberation, speech,

1 Section 12.

2 Article XVI.

and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever." But the Massachusetts declaration made no reference to a right of free speech outside the legislature, and Virginia asserted no right to freedom of speech anywhere. In Pennsylvania, however, the most democratic of the original States, the original declaration of rights asserted that "the people have a right to freedom of speech, and of writing and publishing their sentiments; therefore the freedom of the press ought not to be restrained." Though several of the States did not originally adopt any declarations of rights, there can be no doubt that it was the intention of the people throughout the Union to include the liberty of the press, whatever may be the case as to a general freedom of speech, among the blessings of liberty which they sought

to secure.

the Federal

There is further evidence for this view in the treatment Freedom of the of the subject in the Federal Constitution. The Conven- press in tion of 1787 considered the insertion of an express guar- Constituantee of the liberty of the press in the fundamental law, tion but rejected the proposal on the ground that no power was delegated to the Federal Government which could be used to abridge that liberty. There were grave doubts on this point, however, in the minds of many of the "Founding Fathers," and one of the earliest acts of the first Congress under the new Constitution was to submit to the States the series of amendments which contained among others the explicit provision that the Congress should make no law abridging the freedom of speech or of the press.3

The intention of the people to secure the blessings of

1 Article XXI.

2 Article XII.

Article 1 of the amendments.