II

AMERICAN COOPERATION FOR

WORLD PEACE

By DAVID JAYNE HILL

Great interest has been justly awakened by the princely award offered by Mr. Edward W. Bok for the best "practicable plan by which the United States may cooperate with other nations to achieve and preserve the peace of the world.” This award will, without doubt, inspire much serious thought on this subject by the American people, and prove of incalculable educational value. As a preliminary to the formulation of any plan, it is desirable to consider:

I. The constitutional limitations under which the Government of the United States must act;

2. The relations of the United States to the existing machinery for maintaining peace; and

3. The extent to which the United States should be esteemed responsible for the peace of the world.

I. THE CONSTITUTIONAL LIMITATIONS UNDER WHICH THE GOVERNMENT OF THE UNITED STATES MUST ACT

It is essential at the very beginning of a discussion concerning the cooperation of the United States with other nations for any purpose, to take note of the fact that there are certain definite limitations to the powers of action possessed by the Government of the United States. These limitations arise

(a) From the fact that all the powers of the Government of the United States are delegated powers;

(b) From the fact that the responsibilities imposed upon the Government of the United States by the Constitution,

1 Reprinted by permission from The Saturday Evening Post, October 27 and November 3, 1923. Copyright 1923 by the Curtis Publishing Company, Philadelphia, Pa.

from which all its powers are derived, are not interchangeable or transferable; and

(c) From the lessons of experience, which teach that the peace of the world is best secured by abstaining from intervention in a military sense for the settlement of the quarrels of other nations.

POWERS OF GOVERNMENT DELEGATED

It is an axiom of American constitutional law that the Government of the United States does not possess the qualities of a sovereign, but is the delegated agency of the sovereign people for the purposes set forth in the Preamble to the Constitution of the United States. The pretense sometimes put forth that the will of the Government of the United States is a sovereign will, is based upon the assumption that the whole content of sovereignty was conveyed in the organization of this Government, which is contrary to the fact.

The powers of government, in the case of the United States, having been expressly delegated, and all others having been expressly reserved to the states or to the people, every officer of the United States, by his oath of office to support and defend the Constitution, is bound not to transcend the powers constitutionally accorded to him. An attempt by a portion of the electorate to intimidate him, by creating in his mind the impression of a strong popular movement for some superconstitutional action which if not obeyed might remove him from office, would be not only a blow to organized representative government but so far as it became effective would amount to the subversion of it.

THE PURPOSES OF GOVERNMENT

Among the purposes for which the Government of the United States was ordained and established, the peace of the world was not included or contemplated. This fact does not prohibit every form of cooperation with other nations for the attainment of this object, but it has a decisive bearing upon the character of the means to be employed in case such coop

eration is undertaken. It plainly excludes the employment for this purpose of agencies clearly designed for other definite and designated objects. Moreover, in order to give "the peace of the world"-taken in its wide sense of "universal peace”— any status whatever among the objects aimed at in the Preamble to the Consititution, it is necessary to assume that the expression "the general welfare" is susceptible of so wide an interpretation that "universal peace" may be comprehended in it.

It is, no doubt, under this rubric of "the general welfare" alone that the Government could discover in the Constitution authority to cooperate with other nations for so remote and abstract an object as "the peace of the world." Even so, this cooperation could not be claimed as a constitutional mandate, but as an activity which a peace-loving people would approve not as a legally imposed duty but as a transcendent human obligation.

It is, however, necessary in this connection to consider that, though some kind of cooperation with other nations for this object may be desirable and in all respects legitimate, there is no warrant for appropriating powers of government expressly delegated for the national defense to the quixotic adventure of imposing "universal peace."

There are four forms of power which are in danger of being perverted from their normal constitutional use, and of being employed to secure, not the national objects for which they were intended but the purely abstract conception of “the peace of the world." These are the war power, the taxing power, the commerce power and the drafting power for involuntary military service.

Being already available for use, it is not unnatural that these powers of government should be thought of as elements of immense possible utility in imposing a general peace upon the world; especially in connection with the like powers of other nations whose imperial policies, unrestrained by constitutional limitations, necesstate the forcible imposition of peace and also of civil obedience-over a great portion of

the earth's surface. It is, therefore, opportune to inquire if cooperation of this kind-that is, by armed force-by the United States entirely apart from its probable results, is warranted by the powers conferred upon the Government by the Constitution.

Without entering minutely into the constitutional interpretation of the four powers just enumerated, it is evident from the circumstances of the time and the language in which they were accorded what their real purpose is.

THE WAR POWER

The power "to declare War" (Article I, Section 8, Paragraph 11), "to raise and support Armies" and "to provide and maintain a Navy" (Paragraphs 12 and 13) "to make Rules for the Government and Regulation of the land and naval Forces" (Paragraph 14), and, finally, "to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions" (Paragraph 15), is expressly delegated to Congress; but there is in the enumeration of these provisions of the war power no intimation or ground of inference that they are to be employed for any purpose that does not involve the defense of a right or an interest of the United States.

THE TAXING POWER

The delegation of the taxing power to the United States Government expressly defines the purposes for which the Congress shall have power "to lay and collect Taxes, Duties, Imposts and Excises." These are, explicitly, "to pay the Debts and provide for the common Defence and general Welfare of the United States" (Section 8, Paragraph 1). As the support of the army and navy is derived wholly from public taxation, it is clear that the war power, as well as the taxing power itself, is intended to be employed solely in the interest of the United States, and not to settle the quarrel of other nations, or to supply their material need, at the expense of the taxpayers of the United States.

THE COMMERCE POWER

The power "to regulate Commerce with foreign Nations, and among the several States" (Section 8, Paragraph 4), it may appear, can be employed in cooperation with other nations for the achievement and preservation of peace more freely than the military power, since its effects result chiefly from a refusal to deal with a nation whose conduct is not approved-a power essentially implied in the authority to regulate trade. It is, however, clear that the power to regulate the commerce of the United States did not contemplate a compact with other nations for suppressing or controlling the trade of other nations by the use of armed force, in a situation where the rights of the United States are not directly involved. The suppression or destruction of another nation's trade is an important auxiliary in the prosecution of war, and in fact is essentially an act of war. It is, therefore, subordinate to the war power and to the taxing power which supports it.

THE DRAFTING POWER

As to the drafting power, it is to be noted that the militia may be called forth only for express purposes, namely, "to execute the Laws of the Union, suppress Insurrections and repel Invasions."

There is in the Constitution of the United States no definition of "invasion," whether of territory or of rights. It would be absurd, however, to hold that only the invasion of territory is intended. Invasion begins wherever acts of war against the United States are begun by an aggressor-it may be on the high seas or beyond them.

There has, no doubt, been a growth, as revealed in the procedure of the Great War, in the conception of the right of the Federal Government to secure involuntary military service through the exercise of the drafting power. The power "to raise an army" would, however, be illusory and the power "to declare war" nugatory if, when in the judgment of Congress it was necessary, military service could not be compelled.