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Declare War Clause: Article 1, Section 8

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When the Constitution was created, Article 1, Section 8 dealt with federalism, the separation of the powers on the national level versus the state level. The common interpretation of this section has changed over time, and one can generalize them into four broad categories in chronological order. At first, this section was perceived as Enumerated Rights Federalism, which meant that the national government was characterized as a government with limited powers. The national government had power as far as the enumeration in Section 8 went, but the states had everything else that was left over. State power was not given by outlining them directly, but instead by outlining the power of the federal government.

The second category was Fundamental Rights Federalism, where after the Civil War and the Civil Rights Act, the federal government was given the power to override state legislation in order to protect the fundamental rights of American citizens. The third category was New Deal Federalism, which ended Enumerated Rights Federalism, because this gave the federal government the power to regulate the states themselves in terms of intrastate commerce.

Now, enter into the modern era, where courts are trying to find a way to draw lines in order to identify where Congress’ powers end and where states’ powers start. Such efforts include preventing Congress from interfering in noneconomic intrastate activity. This is called State Sovereignty Federalism, where courts try to carve out a zone of autonomy for the states. Federalism has been debated for a long time, whether it be the amount of rights delegated to the national government and Congress versus the states. Some are staunch supporters of giving states the vast majority of rights, pointing to how individual states can establish different legislative/economic systems as a form of experimentation to see which sort of system works best.

Some argue that the methods of the court in terms of determining federalism based on the sovereignty of the states is not a method that adequately takes into account the intricacies of the relationship between the federal and state governments. When talking specifically about the Declare War Clause in Section 8, the common interpretation of that also falls into debate. However, the two sides of the debate are a bit different from the federal vs state government debate.

The debate in this clause specifically is between the executive branch and the legislative branch. The wording of the clause states that Congress can “declare war”, make legislation about conquering on land and water, authority to permit privateers to use force upon an enemy, and authority to legalize the seizing of another foreign nation’s property as repayment for debt. Up until the modern era, it has been unclear whether the Declare War Clause permits the executive branch to respond to sudden violent attacks.

In the case of The Bey of Tripoli, when war was declared upon the United States, President Thomas Jefferson sent frigates in response. However, Congress never formally declared a state of war with the Bey of Tripoli, and ever since, it has been unclear to what extent the executive branch can respond with force to a threat without the authorization of Congress, if at all. Judicial courts have also largely left this issue alone, so the executive branch and Congress have simply needed to reach a state of compromise and agreement with each other.

Amalia – The Establishment Clause of the First Amendment

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The Establishment Clause of the Bill of Rights was an agreement of the populous that there should be no federally established church. This decision was reached because before the revolution the Church of England was federally mandated in the southern colonies, while the northern colonies had their Puritan establishments. These different establishments bred dissenters, who were often punished for preaching without a license or refusing to pay taxes to a church they disagreed with. The topic of religion caused conflict in the years before the revolution, dividing the people of this new country instead of bringing them together under one previously imagined, now real, community and shared identity.

The Establishment Clause of the Bill of Rights is commonly understood to have prohibited the government from establishing a state-mandated or federal religion for the nation, effectively separating church and state in the United States. 

This clause has been publicly understood to have separated the church and state in the United States, however many people have had interpretations of this clause as it regards government funding and government-sponsored prayer. Many of the matters of debate that spawn from this clause connect to religion and how it should interact with public education, all according to how the courts interpret the constitution. In relation to government funding, some argue the government must remain neutral between religious and non-religious institutions that provide education or other social services. Others argue that taxpayer funds shouldn’t be given to religious institutions if they might be used to further religious ideas because it violates the separation between church and state that the clause set in place. Through Everson v. Board of Education (1947) and Board of Education v. Allen (1968) all students of religious schools gained access to transportation and textbook funds. As well, Rosenberger v. University of Virginia (1995) deemed it unconstitutional under free speech and free exercise principles to exclude otherwise eligible recipients from government assistance because their activity is religious in nature. On the topic of government-sanctioned prayer the courts determined it unconstitutional for public schools to lead students in religious activities, even voluntary in Engel v. Vitale (1962) and Abington School District v. Schempp (1963). These decisions, though controversial to much of the public, were not to the Justices: it would have been seen as government sponsored religion which goes against the Establishment Clause’s separation between church and state.

The Establishment Clause protects citizens rights to practicing their religion freely, without persecution, also ensuring that the government of the United States isn’t biased towards certain religions. This clause ensures that the obligatory religion that the colonists experienced under the monarchy could not happen in their new nation. The Establishment Clause also protects those facing religious persecution. With religious tolerance being written as an amendment to the Constitution, America became a place of refuge for those experiencing religious oppression; many Jewish people in the early 20th century who fled pogroms (planned massacres of Jewish people in eastern Europe) were able to make a safe life for themselves and their families in the United States. The religious tolerance that the Establishment Clause implemented has had a long lasting impact on the peoples and cultures that make up America to this day as well as how cases pertaining to religion are handled in federal Courts.