Supreme Court and War Powers

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SUPREME COURT AND WAR POWERS

Throughout the nineteenth century the U.S. Supreme Court had little direct involvement in the administration of military or naval forces. However, as the ultimate authority on international law in the United States, and as an appellate court dealing with property issues decided either in the subordinate federal courts or in the highest courts of the states having jurisdiction, the Court had a small but measurable impact on military policy. Before John Marshall became chief justice in 1801, the small number of litigated cases and the lack of extensive international warfare prior to 1797 limited the Court's influence in military and naval affairs. However, the outbreak of the quasi-war with France (1798–1800) directed the justices' attention to military matters. Eventually, the American law of warfare would become a point of major concern and a great deal of disagreement, as complex legal and constitutional issues arose concerning the consequences of the American Revolution and the conduct of the War of 1812.

the supreme court and the american revolution

During the Revolution most state governments enacted laws seizing the real or personal property of their residents who remained loyal to the British crown. One of the fundamental tasks facing the Marshall Court was the definition of American citizenship, which was essential for resolving litigation involving the prosecution of treason and the resolution of related property issues. Looking to state procedures, the Court determined the date by which residents of the state were required to choose between loyalty to Great Britain or adherence to their revolutionary state governments. Beyond that date, individuals who remained in the state and accepted its protection would be considered citizens and thus subject to treason prosecutions if they joined in warfare against their state. However, some property rights, such as a married woman's right to dower in her husband's real estate, were not affected by her spouse's treasonable or disloyal actions. Citizenship also played a role in the adjudication of prize cases, or cases resulting from economic warfare between warring nations. Ships and goods owned by American merchants and captured on the high seas by U.S. warships during time of war were protected from forfeiture. On the other hand, an American merchant who continued to reside in enemy territory after war was declared might be considered to have so incorporated himself into the nation of his residence that he could no longer claim American character for his property.

Other state legislation passed during the Revolution purported to cancel the debts Americans owed to British mercantile firms. The Peace Treaty of 1783, as subsequently strengthened by the Jay Treaty of 1794, raised serious questions about the validity of states' canceling such debts as well as seizing loyalists' property during the Revolution. The debt cancellation issue was resolved by the U.S. Supreme Court under the leadership of John Jay in 1796, where the Court held that the states could not impede the collection of debts when the federal government had by treaty guaranteed that these obligations would be subject to collection by the British merchants (Ware v. Hylton, 1796). However, the seizure of real property and the attempted forfeiture of land by state inheritance laws remained in litigation until 1816 (Fairfax's Devisee v. Hunter's Lessee, 1812; Martin v. Hunter's Lessee, 1816). Closely examining the treaty provisions and the nature of the state procedures for seizure, the Court ultimately held that when the transfer of title had been completed prior to the ratification of the Peace Treaty, the state's action would be irrevocable. However, if the seizure was still in process at the time the treaty came into effect, the state action was contrary to international law and hence invalid.

These war-related issues led to the development of rules in the U.S. Constitution concerning the impact of international law on the new American Union. Article 6 of the Constitution mandated that treaties made under the authority of the United States, even if entered into prior to the ratification of the Constitution (1788), were the supreme law of the land. The constitutional authority to enter into treaties was securely vested in the president, who would conduct the foreign relations of the United States and ratify treaties after receiving the consent of the Senate. Although the Supreme Court has been called upon to resolve questions concerning the treaty-making process and the resulting private rights, beginning in the Marshall era the resolution of international relations questions has traditionally rested with the president and Congress.

the marshall court: international conflict and the war of 1812

John Marshall and his judicial colleagues were required by the Constitution to review on appeal decisions by the lower federal courts on prize cases, which resulted from economic warfare. This jurisdiction in federal tribunals pre-dated the Constitution's ratification and had been exercised during the American Revolution by a committee of the Continental Congress; after 1781, a Federal Court of Appeals in Cases of Prize and Capture oversaw such cases. Under international law, the existence of hostilities between warring nations justified the forcible capture of enemy vessels as well as those neutral ships that violated international law by trading illegally or violating an established naval blockade. Admiralty courts in appropriate cases could declare both the goods in the ship, and the ship itself, to be forfeited to the capturing vessel and its crew. This practice was enhanced by governmental commissioners, who could authorize private ship owners, called privateers, to capture ships of the enemy and bring them into port for trial in admiralty courts. Wartime provided an excellent opportunity to establish a family fortune through privateering.

During the American Revolution the United States relied heavily on neutral shipping to supply its commercial needs and equip its armies. As a consequence, it had adopted a policy of armed neutrality. This policy significantly benefited neutral commercial nations but was rejected out of hand by Britain, which dominated the seas with its powerful navy. During the War of 1812 the Supreme Court, along with the lower federal courts, found itself engaged in the establishment of a law concerning prize cases. This was an area in which the justices differed sharply among themselves. Justice Joseph Story and the majority favored the adoption of British rules concerning prize cases; Chief Justice Marshall objected to this, pointing out that most English prize decisions were unduly favorable to the capturing vessel and crew. These disagreements ultimately shattered the seeming unanimity, from 1801 through 1810, of the Marshall Court. As the War of 1812 progressed, the Supreme Court became more suspicious of British and neutral practices that made it difficult to determine whether the vessel or goods were truly neutral in character.

The case U.S. v. Peters (1809) almost resulted in military conflict between Pennsylvania and the U.S. government. In December 1778 the Federal Court of Appeals in Cases of Prize and Capture had reversed a Pennsylvania state admiralty court's prize decree. But U.S. District Judge Richard Peters refused to accept the reversal, arguing that the jury verdict was final as a matter of state law. Because of this deadlock, the property involved was sold at auction and the proceeds were held in an escrow account. Judge Peters refused to order the estate of the stakeholder to pay over the escrowed amount, and the U.S. Supreme Court was asked to direct Peters to follow the Federal Court of Appeals order.

Pointing out that the state of Pennsylvania was not a party, Marshall rejected the argument that the Eleventh Amendment to the Constitution nullified the authority of the federal district courts. He then held that the old Federal Court of Appeals had full authority to review and in appropriate cases to revise or reverse the orders of state admiralty courts. The Peters case highlights the primacy of federal court jurisdiction in all matters of prize and capture. This overriding authority of the federal court is necessary to support the diplomatic and military initiatives of the U.S. government, and to ensure that international law is enforced in a uniform manner throughout the United States.

the supreme court and military service

Prior to the Civil War (1861–1865) the federal military establishment was extremely small. The nation still maintained a distrust of standing armies, in part because of England's seventeenth-century experience of government by Oliver Cromwell's major generals. The U.S. Constitution and supplementary legislation provided for state militia units that, under specified circumstances, might be called into federal service to repel invasion or suppress riots. A 1795 congressional statute began the process of training militia units to meet federal standards, but the division of state and federal authority remained unclear.

The U.S. Supreme Court decision in Houston v. Moore (1820) illustrates the problem the nation faced regarding authority over the military. A Pennsylvania militia private who refused to appear at the place of his unit's rendezvous during the War of 1812 had been tried and convicted by court-martial. A Pennsylvania state marshal then levied against Private Houston's property to collect the fine imposed by the court-martial. Houston brought a civil case against the Pennsylvania marshal, arguing that the state court-martial did not have jurisdiction because, under the U.S. Constitution, he was part of the military forces of the United States. In the Supreme Court's decision, Justice William Johnson reasoned that the state and federal courts had concurrent jurisdiction in this situation, and that an offense might be subject to punishment by both the federal and state governments. Furthermore, the states might use their tribunals to enforce U.S. law as well as their own statutes. Johnson made a distinction between being "called forth" and actually being in "active service." It was the state of being in service that made a militiaman a member of the federal forces. The Houston case represents the beginning of a long line of cases involving the dual and interconnected authority of the federal government and the states in militia command, training, and administration.

In its constitutional decisions the Marshall Court made a major contribution to the law of war by clarifying the central government's authority. The most important case in this regard is McCulloch v. Maryland (1819). The Court's opinion advanced the principle that, although the federal government was limited in its scope, it was supreme in areas where it exercised constitutional authority. Furthermore, Marshall pointed out that, in addition to its enumerated powers, the central government had all the constitutional authority that was "necessary and proper" to effectuate its exercise of the Constitution's enumerated powers. On the matters of war powers and the conduct of international diplomacy, the Marshall Court and its successors have tended to defer to the policy decisions made by the president or congress, or both.

war and society: legacy of the marshall court

During the Marshall era the United States embarked on its Manifest Destiny—to expand across the North American continent through the acquisition and settlement of new territories. The largest and most notable acquisition before 1824 was the Louisiana Purchase (1803) and portions of Florida (1812–1819). Although the Constitution authorized Congress to make rules for the administration of federal territories, it was silent concerning the legal and constitutional process for annexations (except to the extent that peace treaties were perhaps authorized for this purpose). In American and Ocean Insurance v. Canter, the Court indirectly approved of the annexation of Florida in the 1819 Treaty of Washington, thereby giving judicial sanction to the extension of American territory through purchase. Increasingly, the duty to protect settlers, maintain order, and govern territories fell within the responsibilities of the military and naval departments of the federal government.

The economic decisions of the Marshall Court have also shaped national life. The Court, through decisions that encouraged foreign investment, laid the legal and constitutional basis for a stable capitalist economy. Had the United States instead remained an agricultural nation, the nation's military needs would have developed differently. Furthermore, stability and respect for private property rights were critical to the prosperity of the new nation. The U.S. Constitution's introduction of the concept of a nationwide common market, greatly advanced by the Marshall Court's broad construction of interstate commerce, lessened dependence on foreign imports and also made the United States a desirable trading partner in the Atlantic world. Economic growth based on commerce and industrialization began the process of America's rise to world power. This increasing power in turn increased the need for military and naval organizations to defend the expansion of territory and protect American national interests throughout the world.

bibliography

Currie, David P. The Constitution in the Supreme Court: The First Hundred Years, 1789–1888. Chicago: University of Chicago Press, 1985.

Haskins, George L., and Johnson, Herbert A. History of the Supreme Court of the United States, Vol. 2: Foundations of Power: John Marshall, 1801–15. New York: Macmillan, 1981.

Hobson, Charles F. The Great Chief Justice: John Marshall and the Rule of Law. Lawrence: University Press of Kansas, 1996.

Johnson, Herbert A. The Chief Justiceship of John Marshall, 1801–1835. Columbia: University of South Carolina Press, 1997.

Kettner, James H. The Development of American Citizenship, 1608–1970. Chapel Hill: University of North Carolina Press, 1978.

White, G. Edward. History of the Supreme Court of the United States, Vols. 3 and 4 in one: The Marshall Court and Cultural Change, 1815–35. New York: Macmillan, 1988.

Herbert A. Johnson