New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1917-08-07
War Powers of Congress
Constitutional Right Given to Raise
and Support Armies

To the Editor Of The Tribune.
Sir: The oft repeated statement In the
press that opponents Of the draft will test
the constitutionality of the law has created
In the minds of many Of the men the impress
sion that possibly Congress did exceed its
powers In enaetins the measure and has put
something over" on the young men OF the
country. have had no misgivings as to the
powers of Congress In the premises, ana
haye been curious to know what the in
senious arguments of counsel % would be
in support Of their proposition. In this con-
nection, and for the purpose Of correcting
the erroneous impression created, believe IL
would not be smiss TO give wider publicity 70
pithy article by the Hon. Horace II. Towner
appearing in the August number Of Case and
Comment" with reference to the wsr-masing
powers Of Congress. The article does credit
to its author. 1t is as follows:
"The major war powers conferred by the
Constitution on Congress are found in Article
I, Section 8, Paragraphs II, II and ~. IL IS
therein provided that Congress shall have
power TO declare war; to raise and support
armies to provide and maintain navy
"As directly interpretative of these, as we'll
as other grants of power to Congress, 1t Is
provided-Artele !, Section 8, Paragraph Is
that Congress shall have power to make all
laws which shall be necessary and proper for
carrying into execution the foregoing pow
ers'
"The nature and scope of these provisions
have been under consideration and interpre-
tation for more than century. They nave
been discussed and passed upon ny statesmen
and jurists as able and worthy as any the
world has ever seen. II will help US to clear
views and sound judgment to review some OF
this comment and exposition.
"These war powers Of the Constitution were
most persistently and bitterly assailed both
in the convention which formulated the Con-
sttution and in the discussion which pre-
coded it's adoption. 1t is a matter Of history
that no other powers Of the government were
more strongly contested than were these
That the provisions were retained In such
broad and practically unlimited form after
such critical and careful consideration is am
pie vndication of their wisdom. With full
understanding of their significance they were
finally approved as necessary for the security
and preservation of the nation.
"Ths grant of power as particularly apply
ing TO the army is conveyed In the words:
"To Raise and Support Armies
"The clause as originally reported was TO
raise armies The addition of the word
support was made In the report Of the com
mittee. Over this spirited debate occurred
in the convention. 1t was finally adopted
with full understanding Of its farreaching
significance.
at was held in Tarble's case, 10 Wall, 4O8,
20 L. ed. Sol, that under this provision Of the
Constitution the control Of Congress over the
subject is 'plenary and exclusive. II can de-
termine without question from state author
ity how the armies shall be raised, whether
by voluntary enlistment or forced draft, the
age at which thejsoldier shall be received, the
period for which he shall be taken, the COM
pensation he shall be allowed, and the service
to which he shall be assigned I
"Mr Tucker, in discussing the clause TO
raise and support armies says, Vol. 2, page
579: The question arose under the Con-
scription act passed by the Confederate Con-
gress during the late war whether it was COM
potent for that Congress by CONSUMPTION sub
stantially to exhaust the material out of
which the militia was composed. 1t was OBJ
iected that this would make standing army
composed of the whole of the militia and
would leave to the states no armed force to
resist its power. The Court of Appeals OF
Virginia decided there was and could be In
reason no Limitation put upon the size OF the
army which was to be raised, and that the
objection to the law was not good
"'To Provide and Maintain Navy
"This provision confers on Congress the
same powers with regard to the navy as that
with regard to the army.
"Not less important than these direct grants
of power TO declare war TO raise and sup
port armies and to provide and maintain
navy is the further express declaration Of
tho Constitution that Congress shall have
power also to make all laws which shall be
necessary and proper for carrying into execu-
ton the foregoing powers
"Wsr powers are greater than other powers
because war is the supreme effort OF a nation
Il is its utmost endeayor"
THEODORE DWIGHT.
New York, Aug. I, 1917.