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I. The War and the Constitution: President and Congress

Published online by Cambridge University Press:  02 September 2013

Edward S. Corwin
Edward S. Corwin
Affiliation:
Princeton University
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Extract

The chief lesson of the war to date for constitutional interpretation is that the Constitution is an easily dispensable factor of our war effort—perhaps one might say an “expendable” factor. That the Constitution is not needed as a source of national power for war purposes has been stated by the Court itself. Speaking in 1936 for himself and brethren in United States v. Curtiss-Wright Export Corporation, Justice Sutherland said: “The investment of the Federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war [my italics], to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have been vested in the Federal government as necessary concomitants of nationality” (299 U.S. 304, 318).

Type
American Government in War-Time: The First Year
Information
American Political Science Review , Volume 37 , Issue 1 , February 1943 , pp. 18 - 25
Copyright
Copyright © American Political Science Association 1943

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References

1 Only seven saboteurs were parties to the case, Dasch being the exception. All except Haupt, an American citizen, were citizens of the Third Reich and hence enemy aliens. All of them following the outbreak of war between Germany and this country, being then in Germany, took a course of training in sabotage in a school near Berlin, their tutor being a member of the German High Command. Thereafter three of them, together with Dasch, boarded a German submarine at a French port and proceeded to Long Island; while the remaining four found their way in like fashion to the Florida coast. The courses pursued by the two groups on their arrival in this country were substantially identical. Coming ashore during hours of darkness on June 13 and June 17, respectively, they divested themselves of the German uniforms or parts of uniforms which they had been wearing and buried them, along with a quantity of explosives, fuses, and timing devices, in the sand. One party then went to New York City, the other to Jacksonville, Florida, all members being in civilian dress. In the course of the ensuing fortnight, all were picked up, either in New York or Chicago, by the FBI; and on July 2 the President appointed a military commission to try them for offenses against the laws of war and the 81st and 82nd Articles of War, which trial began on July 8.

I ought to add that I prepared this article before I was aware of Professor Cushman's excellent review of the same case in the December issue of this Review.

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