State of War

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The existence of a "state of war" for various purposes of domestic and international law is not generally controlled by the existence or absence of a congressional declaration of war. The federal courts, including the Supreme Court, have often held that hostilities, not accompanied by any formal declaration of war (as has been the case in all but five of the approximately 160 occasions in which American armed forces have been committed to combat), were "war" and, conversely, that "peace" existed despite the fact that war had been declared and not terminated by a peace treaty or legislative action. Sometimes the same hostilities have been treated as "war" for one purpose and "peace" for another. Examples can describe the judicial approach better than generalities.

The undeclared naval combat with France in 1798–1799 was treated as war for the purpose of a statute rewarding those who recaptured American vessels "from the enemy" (Bas v. Tingy, 1800) but (many years later) as peace under the Franco American treaty of 1778 (Gray v. United States, 1884). The civil war, though of course never declared by Congress, created a state of war under international law, so that neutral vessels running the Union blockade of Confederate ports could lawfully be captured and sold as prizes. (See prize cases.) American forces sent to China to help suppress the Boxer Uprising of 1900 were engaged in war under Article of War 58, which permitted courts-martial to try charges of murder only "in time of war" (Hamilton v. McClaughry, 1905). But although on June 10, 1949, a declared war still existed between the United States and Germany and Japan, the Supreme Court held that, since there were no hostilities, that date was "time of peace" under a similar Article of War (Lee v. Madigan, 1959; the decision effectively overruled Kahn v. Anderson, 1921). The court of military appeals and at least one civilian court held that the Korean and Vietnam conflicts, though not declared wars, were nonetheless "war" under provisions of the Uniform Code of Military Justice, which suspended the statute of limitations and increased penalties for certain military offenses in wartime (Broussard v. Patton, 1972; United States v. Bancroft, 1953; United States v. Anderson, 1968). But the Court of Military Appeals and the court of claims also held that only a declared war could trigger a provision of the Code which gives courts-martial jurisdiction "in time of war [over] persons serving with or accompanying an armed force in the field." The principle that emerges from examination of these and many similar cases is that the existence of a "state of war" depends principally on the amount of violence, unless a holding that "war" existed would raise serious constitutional questions, as by giving courts-martial jurisdiction over civilians.

The question can, of course, be of profound importance, for war is chief among the great emergencies that may be held to justify actions of the executive and the legislature which would in normal times be plainly unconstitutional. The most extreme example is the Supreme Court's refusal to strike down the 1942 exclusion of American citizens of Japanese descent from the West Coast and their confinement in "relocation centers," under an executive order of President franklin d. roosevelt, which had been ratified by an act of Congress. (See Executive Order 9066; japanese american cases.) As a general proposition it may be said that the Supreme Court's unwillingness to hold unconstitutional the actions of the President and Congress in such emergencies varies in inverse ratio to the size of the emergency and the decision's chronological closeness to it. It has been the practice of the Court to scrutinize emergency measures much more closely and to give the executive and legislature much less leeway if the case reaches the Court after the war is over.

(See ex parte milligan; duncan v. kahanamoku.)

Joseph W. Bishop, Jr.


Bishop, Joseph W., Jr. 1974 Justice under Fire: A Study of Military Law. Pages 178–180, 192–201. New York: Charterhouse.

Ratner, Leonard G. 1971 The Coordinated Warmaking Power—Legislative, Executive and Judicial Roles. Southern California Law Review 44:461–489.

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State of War

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