Section 3 of the Fourteenth Amendment
VOLOKH at law.ucla.edu
Wed Oct 20 15:24:41 PDT 2004
Unless I'm mistaken, the Civil War was not a declared war; if that's
so, then "enemies" doesn't require a declaration of war. More broadly,
to the best of my knowledge, U.S. law generally does not distinguish
declared wars from undeclared wars. As I've written at
http://volokh.com/2002_09_08_volokh_archive.html#85444270 (a blog post
aimed at lay readers, so my apologies for any oversimplifications):
(1) The most extensive discussion of the subject that I could find is
in The Prize Cases (The Brig Amy Warwick), 67 U.S. 635, 666, 668-669
(1863). The discussion arose in the context of a civil war, but it
applied broader principles; most relevant today are the statements that:
[W]ar may exist without a declaration on either side.
If a war be made by invasion of a foreign nation, the President is not
only authorized but bound to resist force by force.
=261> Montoya v. United States, 180 U.S. 261, 266-67 (1901), arose in
the context of a war with Indian tribes, but again applied broader
principles. It adopted earlier statements that a war may exist without
being declared, and most relevant to today's situation, it acknowledged
that a war may be levied by a group that is not a nation:
If [the] hostile acts [of "a collection of marauders"] are directed
against the government or against all settlers with whom they come in
contact [as opposed to being "for the purpose of individual plunder,"]
it is evidence of act of war. . . .
We recall no instance where Congress has made a formal declaration of
war against an Indian nation or tribe; but the fact that Indians are
engaged in acts of general hostility to settlers, especially if the
government has deemed it necessary to despatch a military force for
their subjugation, is sufficient to constitute a state of war.
(Note of course that all this is true without regard to what one sees as
a moral character of a particular war; I don't know who was at fault in
the particular conflict at issue in Montoya, but this doesn't matter for
(3) In Bas v. Tingy, 4 U.S. 37, 40-44 (1800), each Justice gave
his own opinion in writing (pretty much the norm during that era), but
they all seemed to agree that a state of war may exist between two
nations even without a formal declaration of war.
These cases aren't squarely controlling here, because none
specifically involved a clandestine attack, involving no attempt to
occupy actual territory, by a foreign enemy that doesn't amount to a
nation. But certainly all of them acknowledge that war may exist without
a declaration of war; and the considered dictum in Montoya suggest that
this applies to attacks by enemy marauders and not just sovereign
And I have not seen any Supreme Court cases that even suggest the
contrary -- that a war may exist only when declared by Congress. The
only court authority that I've seen for this proposition are the lower
court decisions in United States v Averette, 19 USCMA 363, 41 CMR 363
(U.S. Court of Military Appeals 1970), and Robb v. United States, 456
F.2d 768 (U.S. Court of Claims 1972), which held (interpreting the
Uniform Code of Military Justices in light of what they saw as
constitutional constraints) that military authority over civilians was
limited to times of declared war. These lower court statements do not,
however, strike me as that persuasive, especially given the contrary
statements by the Supreme Court. And the courts themselves described
their holdings as quite limited, distinguishing earlier cases that held
that "war" in other contexts does include undeclared wars.
So that's true as to states of war; I take it the same is true as to
who is an Enemy, especially given the Civil War precedent.
From: Judith Baer [mailto:JBAER at politics.tamu.edu]
Sent: Wednesday, October 20, 2004 3:11 PM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: Section 3 of the Fourteenth Amendment
Doesn't the existece of "enemies" require a congressionally declared
war? If so, Kerry hasd nothing to worry about. We were not at war with
North Vietnam in that sense.
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