III. WHO DETERMINES THE EXISTENCE OF "WAR"?

[T]he war power stems from a declaration of war. The Constitution by Art. I, § 8,
gives Congress, not the President, power "[t]o declare War." Nowhere are presidential wars authorized.
                                                                                             -Justice Douglas ³⁶

William O. Douglas was a wild card. Where others walked gingerly, he marched boldly. His First Amendment absolutism exceeded even that of his fellow absolutist, Hugo Black. What especially rankled him in certain free expression cases like United States v. O'Brien³⁷ and The Pentagon Papers Case³⁸ was the Executive's claim of inherent authority to suppress speech under its wartime powers even in the absence of any congressional declaration of war. As he put it in his lone dissent in O'Brien:

The Court states that the constitutional power of Congress to raise and support armies is "broad and sweeping" and that Congress' power "to classify and conscript manpower for military service is 'beyond question.'" This is undoubtedly true in times when, by declaration of Congress, the Nation is in a state of war. The underlying and basic problem in this case, however, is whether conscription is permissible in the absence of a declaration of war. That question has not been briefed nor was it presented in oral argument; but it is, I submit, a question upon which the litigants and the country are entitled to a ruling.³⁹

Douglas's jurisprudence emphasized what he viewed as the necessary link between questions of exercising constitutional power and questions of curtailing constitutional rights. For him, the power question preceded the rights question. Hence, even in a draft-protest case, unless the Executive was clearly authorized by law to initiate offensive hostilities, it could claim no power at all, including any supposed auxiliary powers to suppress speech.

Such constitutionalism, salutary and too-often forgotten, is aberrational when it comes to judicial review of the question, "Who determines the existence of war?" That question is entirely absent in First Amendment wartime cases, despite Holmes's admonition in Schenck. But why is that so?

Over the course of two centuries, the traditional constitutional line that divided congressional and executive war powers - the distinction between Congress's "offensive" powers to declare war and regulate the armed forces and the President's emergency "defensive" powers as Commander in Chief - has become virtually impossible to maintain in modernity. How can the 1787 "offensive/defensive" formula be meaningfully reconciled with contemporary armed conflicts? For example, as political scientist Edward Keynes asks, is "the deployment of U.S. intermediate-range missiles in Turkey or [the American response to] the stationing of Soviet combat troops in Cuba a defensive or an offensive measure?"⁴⁰ By the same token, in "an era of supersonic intercontinental strategic weapons, is a preemptive first strike defensive or offensive according to the Framers' classification? Is . . . the U.S. invasion of Cambodia an aggressive war prohibited by the United Nations Charter or a defensive action permitted by international practice?" ⁴¹ To raise such inquiries is to diminish a bright-line notion of a separation of wartime powers.