The Constitution of the United States of America: Analysis and Interpretation: Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952
History
The Constitution of the United States of America: Analysis and Interpretation: Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952
Constitutional law -- United States; Constitutions -- United States
The clauses of the Constitution which give Congress authority "to raise
and support armies, to provide and maintain a navy" and so forth, were
not inserted for the purpose of endowing the National Government with
power to do these things, but rather to designate the department of
government which should exercise such powers. Moreover, they permit
Congress to take measures essential to the national defense in time of
peace as well as during a period of actual conflict. That these
provisions grew out of the conviction that the Executive should be
deprived of the "sole power of raising and regulating fleets and armies"
which Blackstone attributed to the King under the British
Constitution,[1227] was emphasized by Story in his Commentaries. He
wrote: "Our notions, indeed, of the dangers of standing armies, in time
of peace, are derived in a great measure from the principles and
examples of our English ancestors. In England, the King possessed the
power of raising armies in the time of peace according to his own good
pleasure. And this prerogative was justly esteemed dangerous to the
public liberties. Upon the revolution of 1688, Parliament wisely
insisted upon a bill of rights, which should furnish an adequate
security for the future. But how was this done? Not by prohibiting
standing armies altogether in time of peace; but (as has been already
seen) by prohibiting them _without the consent of Parliament_. This is
the very proposition contained in the Constitution; for Congress can
alone raise armies; and may put them down, whenever they choose."[1228]
THE TIME LIMIT ON APPROPRIATIONS FOR THE ARMY
Prompted by the fear of standing armies to which Story alluded, the
framers inserted the limitation that "no appropriation of money to that
use shall be for a longer term than two years." In 1904 the question
arose whether this provision would be violated if the Government
contracted to pay a royalty for use of a patent in constructing guns and
other equipment where the payments were likely to continue for more than
two years. Solicitor-General Hoyt ruled that such a contract would be
lawful; that the appropriations limited by the Constitution "are those
only which are to raise and support armies in the strict sense of the
word 'support,' and that the inhibition of that clause does not extend
to appropriations for the various means which an army may use in
military operations, or which are deemed necessary for the common
defense, * * *"[1229] Relying on this earlier opinion, Attorney
General Clark ruled in 1948 that there was "no legal objection to a
request to the Congress to appropriate funds to the Air Force for the
procurement of aircraft and aeronautical equipment to remain available
until expended."[1230]
ESTABLISHMENT OF THE AIR FORCE
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