shall be for a longer Term than two Years.

To provide and maintain a Navy.

To make Rules for the Government and Regulation of the land and naval
Forces.

The War Power

SOURCE AND SCOPE

Three different views regarding the source of the war power found
expression in the early years of the Constitution and continued to vie
for supremacy for nearly a century and a half. Writing in The
Federalist,[1203] Hamilton elaborated the theory that the war power is
an aggregate of the particular powers granted by article I, section 8.
Not many years later, in 1795, the argument was advanced that the war
power of the National Government is an attribute of sovereignty and
hence not dependent upon the affirmative grants of the written
Constitution.[1204] Chief Justice Marshall appears to have taken a still
different view, namely that the power to wage war is implied from the
power to declare it. In McCulloch _v._ Maryland[1205] he listed the
power "to declare _and conduct_ a war"[1206] as one of the "enumerated
powers" from which the authority to charter the Bank of the United
States was deduced. During the era of the Civil War the two latter
theories were both given countenance by the Supreme Court. Speaking for
four Justices in Ex Parte Milligan, Chief Justice Chase described the
power to declare war as "necessarily" extending "to all legislation
essential to the prosecution of war with vigor and success, except such
as interferes with the command of the forces and conduct of
campaigns."[1207] In another case, adopting the terminology used by
Lincoln in his Message to Congress on July 4, 1861,[1208] the Court
referred to "the war power" as a single unified power.[1209]

AN INHERENT POWER

Thereafter we find the phrase, "the war power," being used by both Chief
Justice White[1210] and Chief Justice Hughes,[1211] the former declaring
the power to be "complete and undivided."[1212] Not until 1936 however
did the Court explain the logical basis for imputing such an inherent
power to the Federal Government. In United States _v._ Curtiss-Wright
Export Corp.,[1213] the reasons for this conclusion were stated by
Justice Sutherland as follows: "As a result of the separation from Great
Britain by the colonies acting as a unit, the powers of external
sovereignty passed from the Crown not to the colonies severally, but to
the colonies in their collective and corporate capacity as the United
States of America. Even before the D