The Navy Clause

The Congress shall have Power . . . To provide and maintain a Navy. . . .

—Judge Gregory E. Maggs & Robert Leider

Introduction

The Navy Clause empowers Congress to “provide and maintain a Navy” without further elaboration or qualification. In Federalist No. 24, Alexander Hamilton explained that this clause gives Congress the ability “to build and equip a fleet” in the “customary and ordinary modes practiced in other governments.” The Armies Clause restricts congressional appropriations for land forces to a period of two years.¹ (See Essay No. 59.) The Navy Clause places no time limit on appropriations. Despite vast technological changes, the character of the Navy as a service, unlike that of the Army, has not altered much. Today’s sailor has much in common with his predecessor from two centuries ago, technical expertise excepted. The foundation of this Navy was laid by Alexander Hamilton, John Adams, Benjamin Stoddert, and other Federalists who recognized the shortcomings of a navy limited to coastal defense alone. Service reforms beginning in the latter decades of the nineteenth century created the powerful Navy that exists today.

History Before 1787

The concept of the navy has ancient roots.² In antiquity, the Athenian navy had protected the city’s democracy.³ In Great Britain, King Henry VIII created the Royal Navy in 1546.⁴ The Royal Navy was used initially to support the army and deter invasion.⁵ Later, it protected commerce.⁶ While there was great concern about a standing army in Great Britain, there was general acceptance of a permanent navy. It was believed that a standing army could be used domestically against the populace, but a standing navy could serve only to protect the populace from invaders.⁷

Before 1641, King Charles asserted that he had a right under royal prerogative to appropriate funds to develop a navy. However, in 1641, Parliament firmly overruled that prerogative and asserted that the legislative branch had the power to impose taxes for support of the navy.⁸

John Adams deserves credit as a great patron of the United States Navy. From October 1775 to January 1776, he chaired the Naval Committee of the Continental Congress.⁹ In October 1775, he persuaded Congress to begin outfitting ships to defend American interests in the nascent war with Great Britain.¹⁰

Article IX of the Articles of Confederation expressly empowered Congress “to build and equip a navy.”¹¹ Although the Americans also relied heavily on privateers, the Continental Navy acquired and used about sixty vessels during the Revolutionary War.¹² In June 1785, Congress voted to sell the Continental Navy’s one remaining ship.¹³ The fledgling nation then had only a fleet of small Treasury Department revenue cutters.¹⁴

The Constitutional Convention

At the Constitutional Convention, there was substantial concern about the risks posed by a standing army, and the delegates limited any appropriation for the Army to a period of two years. The federal government’s power over the Navy was far less controversial.

On August 6, 1787, the Committee of Detail presented a draft clause that was similar to Article IX of the Articles of Confederation. The draft gave Congress the power “[t]o build and equip fleets.”¹⁵ On August 18, the Convention agreed to revise this language slightly. Elbridge Gerry of Massachusetts proposed “‘to provide & maintain a navy’ . . . as a more convenient definition of the power.”¹⁶ This text was adopted without any dissent.

This text reflects two implicit choices. First, the Framers followed the English model. They made creating the navy a legislative rather than an executive function. Second, they decided that the United States could have a standing navy. The Founding generation was well versed in ancient and European history.¹⁷ They were apparently aware of the English view that armies, not navies, were the preferred tools of tyrants; Madison explained in Federalist No. 41 that the people should not fear a standing navy in the way that they might fear a standing army because “[t]he batteries most capable of repelling foreign enterprises on our safety, are happily such as can never be turned by a perfidious government against our liberties.”

The Ratification Debates

In the Federalist Papers, Alexander Hamilton and James Madison offered three distinct arguments for having a federal navy. In Federalist No. 11, Hamilton asserted that a navy would be a “resource for influencing the conduct of European nations towards us.” He explained that without a navy, “[a] nation, despicable by its weakness, forfeits even the privilege of being neutral.” In Federalist No. 34, Hamilton wrote that a navy would protect commercial shipping. “[I]f we mean to be a commercial people,” Hamilton observed, “it must form a part of our policy to be able one day to defend that commerce.” Finally, in Federalist No. 41, Madison explained that a navy would be “a principal source of . . . security against danger from abroad.”

Anti-Federalists disputed the notion that the navy would actually defend American commerce or guarantee American neutrality. Instead, they claimed, establishing a navy would provoke the European powers and invite war.¹⁸ For example, William Grayson argued during the Virginia ratifying convention that “maintaining a navy” would “irritate the nations of Europe against us.”¹⁹ Anti-Federalists were also concerned about the expense of maintaining a navy and the distribution of that expense. Melancton Smith argued at the New York ratifying convention that building a navy would be “wild and ridiculous.”²⁰ Grayson contended that the South would have to pay its share for a navy but that the navy would not appreciably reduce the vulnerability of southern ports.²¹

Early Practice

In the first two decades after ratification, American merchantmen increasingly found themselves at the mercy of British and French warships and the pirates of the Barbary States.²² In 1798, President Adams appointed Benjamin Stoddert as the first Secretary of the Navy.²³ Under Stoddert, the new department grew rapidly.²⁴

The Navy enabled the United States to hold its own in the Quasi-War with France (1798–1800).²⁵ President Adams and former Secretary of the Treasury Alexander Hamilton disagreed vehemently on the need to raise an army during this war,²⁶ but they agreed on the value of a strong navy. Adams had long argued that the Army was less necessary than the Navy because he believed that the United States was best protected by the “wooden walls” of a well-funded navy.²⁷

President Thomas Jefferson, whose term began in 1801, believed differently. In his view, attempting to build a navy to match those of European nations “would be a foolish and wicked waste of the energies of our countrymen.”²⁸ Accordingly, under his Administration, the Navy remained largely unfunded.29 A decade later, the United States was forced to fight the War of 1812 with a dilapidated navy that had “half a dozen frigates, and six or eight sloops and brigs.”²⁹ Nevertheless, older American frigates like the U.S.S. Constitution from 1797 performed extraordinary feats.³⁰

Starting with the Administration of James Monroe in 1817, American views changed. Secretary of State John Qunicy Adams urged an expansion of the U.S. Navy.³¹ Since then, there has been an unbroken consensus that a strong navy is essential to the preservation of American liberty.³²

Open Question

• Essay No. 59 discussed whether conscription was permissible in the Army. Conscription into the Navy is a separate and more difficult constitutional question. For centuries, the British government would conscript, or impress, seamen into naval service.³³ There was a long-standing debate about whether pressing sailors was lawful and constitutional or whether it was illegal but tolerated by necessity.³⁴ American jurists similarly debated whether the British precedent of impressing seamen into naval service would support a broad congressional power to conscript citizens for naval service.³⁵ Would this practice be constitutional?

1. Art. I, § 8, cl. 12. ↩︎
2. Arthur MacCartney Shepard, Sea Power in Ancient History 40 (1924). ↩︎
3. Id. at 211. ↩︎
4. David Hannay, A Short History of the Royal Navy 1217–1588, at 36 (1898). ↩︎
5. Id. at 16–18. ↩︎
6. Id. at 206. ↩︎
7. Sarah Kinkel, Disorder, Discipline, and Naval Reform in Mid-Eighteenth- Century Britain, 128 Eng. Hist. Rev. 1451, 1453 (2013). ↩︎
8. Ship Money, Encyclopedia Britannica, https://perma.cc/KA9W-EVJL. ↩︎
9. F.E. Cross, The Father of the American Navy, 53 U.S. Naval Inst. Proceedings 1296 (1927). ↩︎
10. 3 J. Cont. Cong. 293–94 (Oct. 13, 1775). ↩︎
11. Articles of Confederation, art. IX, § 5. ↩︎
12. U.S. Navy, Naval History and Heritage Command, Vessels of the Continental Navy (published Aug. 23, 2017), https://perma.cc/GY4P-C6FD. ↩︎
13. Louis Arthur Norton, Alliance—The Last Navy Continental Frigate, 22 Naval Hist. 60 (2008). ↩︎
14. C. Douglas Kroll, Prologue: A Historical Overview of the U.S. Revenue Cutter Service, 1790–1898, in The Fighting Coast Guard: America’s Maritime Guardians in the Twentieth Century 29–30 (Mark Snell ed., 2022). ↩︎
15. 2 Farrand’s 182. ↩︎
16. Id. at 330. ↩︎
17. Richard M. Gummere, The Classical Ancestry of the United States Constitution, 14 Am. Quarterly 3, 4–5 (1962). ↩︎
18. Marshall Smelser, Whether to Provide and Maintain a Navy (1787—1788), 83 U.S. Naval Inst. Proceedings 655 (1957). ↩︎
19. 3 Elliot’s 428. ↩︎
20. 2 Elliot’s 381. ↩︎
21. 3 Elliot’s 429. ↩︎
22. David B. Stansbury, The Quasi-War with France, 6 Naval History 16 (1992). ↩︎
23. Jonathan R. Dull, American Naval History, 1607–1865: Overcoming the Colonial Legacy 43 (2012). ↩︎
24. Id. ↩︎
25. Id. at 44, 47. ↩︎
26. David McCullough, John Adams 624–25 (2001). ↩︎
27. Id. at 624. ↩︎
28. Denver Brunsman, De-Anglicization: The Jeffersonian Attack on an American Naval Establishment, in Anglicizing America: Empire, Revolution, Republic 218 (Ignacio Gallup-Diaz et al. eds., 2015). ↩︎
29. Theodore Roosevelt, Naval War of 1812, at 23–24 (1902). ↩︎
30. Id. at 48, 83–92. ↩︎
31. Brennan J. Suffern, Like Father, Like Son, 38 Naval History (2024), https://perma.cc/YM4V-MEUQ. ↩︎
32. Id. ↩︎
33. F.W. Maitland, Constitutional History of England 280 (1920). ↩︎
34. Id.; David Hume, Of Some Remarkable Customs, in Essays and Treatises on Several Subjects 207 (1758); 2 Thomas Erskine May, The Constitutional History of England Since the Accession of George the Third 272–74 (1863). ↩︎
35. Kneedler v. Lane, 3 Grant 465, 518 (Pa. 1863) (Bead, J., dissenting); Roger B. Taney, Thoughts on the Conscription Law of the United States, in The Military Draft: Selected Readings on Conscription 209, 213–14 (Martin Anderson ed., 1982). ↩︎