B.
Oliver Wendell Holmes, who had served in the Massachusetts Volunteer Infantry during the Civil War16, was ever the militarist. His jurisprudence was born out of Darwinian skepticism and militaristic realism, a deep-seated belief in battles culminating in the survival of the fittest.17 Such a faith in the power of struggle to propel civilization was evident in his free-speech decisions as well - first in Schenck's deference to the national government's authority to wage war, the First Amendment notwithstanding, and next in Abrams's paean to the struggle of competing ideas in the marketplace, the national war powers notwithstanding. In the contest between Holmes's two opinions, however, Schenck became the law and Abrams became the aspiration. In other words, the war paradigm predominated.
When Holmes referred to a "nation at war," the legal concept of war was relatively straightforward. Largely grounded in the textual constitutionalism of 1787, the idea of "war" was inextricably linked to what was set forth in Article I, Section 8, Clause 11: "The Congress shall have the Power . . . To declare War." The Executive, by contrast, was authorized by Article II, Section 2, Clause 1 to serve as "Commander in Chief" of the armed forces. In other words, the Constitution's text divided the war powers into two categories: Congress's power to take the military offensive, and thereby move the nation from a formal state of peace to a formal state of war, and the Executive's inherent power to take defensive military actions to repel sudden attacks.18 In either case, the President as Commander in Chief was also vested with authority to conduct military operations, whether undertaken pursuant to a formal declaration or initiated under his inherent power to repel attacks.19
