Wednesday, July 22, 2020

Waxman on Hughes and the War Power

Matthew C. Waxman, Columbia Law School, has posted Constitutional War Powers in World War I: Charles Evans Hughes and the Power to Wage War Successfully, which appeared in  the Journal of Supreme Court History 44 (November 2019): 267-277:
Charles Evans Hughes (NYPL)
On September 5, 1917, at the height of American participation in the Great War, Charles Evans Hughes famously argued that “the power to wage war is the power to wage war successfully.” This moment and those words were a collision between the onset of “total war,” Lochner-era jurisprudence, and cautious Progressive-era administrative development. This article tells the story of Hughes’s statement—including what he meant at the time and how he wrestled with some difficult questions that flowed from it. The article then concludes with some reasons why the story remains important today.
--Dan Ernst