Intro To The Constitution (Part 26)
Previous article in this series: Reinstating the Militia
In the minds of the founders, it was always assumed that any standing army which the Federal government did maintain, would be small, and thus the bulk of military power would come from the militia. But even in that respect, the president’s command over the militia takes the form of a request to the State Governments, asking them to detach a portion of their State militia, and submit it to Federal control. So, if such a president did attempt to leverage military power to unjust ends, those States to whom the request was made, could intercede on their citizen’s behalf, and refuse (as several states did in 1861, when Abraham Lincoln requested 75,000 troops in order to invade the seceding States; or as {Connecticut & Massachusetts} did in the war of 1812). It should be noted, however, that as with most of such things, almost as soon as this authority was leveraged, {tensions & disagreements} arose between the {States & [Federal government]} over where the line between {[States’ rights] & [Federal Authority]} should lie; with the Federal government, obviously, vying for more power, and attempting to further vassalize the States under supreme Federal authority, while the States sought to retain as much of their {sovereignty & [intercessory power]} as they could. For example, here’s a summary of the previously mentioned dispute between the States of {Connecticut & Massachusetts} and the Federal Government, over control of the militia:
“During the last war, the authority of the president of the United States over the militia, became a subject of doubt and difficulty, and of a collision of opinion between the general government and the governments of some of the states. It was the opinion of the government of Connecticut, that the militia could not be called out, upon the requisition of the general government, except in a case declared, and founded upon the existence of one of the specified exigencies; that when called out, they could not be taken from under the command of the officers duly appointed by the states, or placed under the immediate command of an officer of the army of the United States. Nor could the United States lawfully detach a portion of the privates from the body of the company to which they belonged, and which was organized with proper officers. This would, in the opinion of the government of Connecticut, impair, and eventually destroy, the state militia. When the militia are duly called into the service of the United States, they must be called as militia furnished with proper officers by the state.
Similar difficulties arose between the government of the United States and that of the state of Massachusetts, on the power of the national government over the militia. Both those states refused to furnish detachments of militia for the maritime frontier, on an exposition of the constitution, which they deemed sound and just.
In Connecticut, the claim of the governor to judge whether the exigency existed, authorizing a call of the militia of that state, or any portion of it, into the service of the union, and the claim on the part of that state to retain the command of the militia, when duly ordered out, as against any subordinate officer of the army of the United States, were submitted to and received the strong and decided sanction not only of the governor and council of that state, but of the legislature itself. In Massachusetts, the governor consulted the judges of the supreme judicial court, as to the true construction of the constitution on these very interesting points. The judges of the supreme court, who were consulted, were of opinion, that it belonged to the governors of the several states to determine when any of the exigencies contemplated by the constitution of the United States existed, so as to require them to place the militia, or any part of it, in the service of the union, and under the command of the president. It was observed, that the constitution of the United States did not give that right, by any express terms, to the president or congress, and that the power to determine when the exigency existed, was not prohibited to the states, and that it was, therefore, as of course, reserved to the states. A different construction would place all the militia in effect at the will of congress, and produce a military consolidation of these states. The act of 28th February, 1795, vested in the president the power of calling forth the militia when any one of the exigencies existed, and if to that be superadded the power of determining when the casus foederis occurred, the militia would in fact be under the president’s control.
As to the question how the militia were to be commanded, when duly called out, the judges were of opinion, that the president alone, of all the officers acting under the United States, was authorized to command them, and that he must command them as they were organized, under officers appointed by the states. The militia could not be placed under the command of any officer not of the militia, except [if] that officer be the president of the United States. But the judges did not determine how the militia were to be commanded, in case of the absence of the president, and of a union of militia with troops of the United States; and whether they were to act under their separate officers, but in concert as allied forces, or whether the officer present who was highest in rank, be he of the militia or of the federal troops, was to command the whole, was a difficult and perplexing question, which the judges did not undertake to decide.”
— James Kent, Commentaries 1:244-50 (1826) [38]
To summarize, {Connecticut & Massachusetts} were arguing:
- Since it is the States who have the authority to appoint the officers of the militia—the whole point of which being, to ensure that the States exert a high degree of deterministic authority over the militia, and that the command structure of the militia has loyalty to that State—because of this, for the Federal government to then basically throw out that State appointed command structure, by placing the militia under new Federally appointed officers, who may not have any loyalty to that State, fundamentally undermines the State’s control over their own militia, and neuters their ability to impose any degree of protection over their own men, by ensuring that those men are commanded by trusted citizens from that State. Thus, the Federal government should not have the authority to perform such a forced replacement of command structure, and State militias must remain under their existing command structure, even when mustered-in to Federal service.
- While the President does have the Constitutional authority to call forth the State militias, he must have a good reason to do so. The Federal government should not be able to call forth the militias for any reason they want, and with no verification that the reasons given are valid, while the States are powerless to provide any protection of their citizens being sent off into {pointless, unjustified, or deceptive} wars; essentially, forcing the State to provide military support for actions which they find {unnecessary, excessive, or immoral}. Therefore, while the President does have the Constitutional authority to call forth the militia by furnishing proof of a valid exigency which justifies it, ultimately, it is up to each State to determine if that proof is compelling, whether or not the exigency is valid, and whether or not that exigency is sufficient to merit the requested degree of military response (i.e. the {number & type} of troops); and thus, whether or not that State shall acquiesce to the President’s request for military aid.
In my opinion, ensuring that the State’s militia remains under the command of the State’s appointed officers, seems obviously vital to me, for the reasons already stated, and I’m really not sure what more to say on the issue, as it seems pretty straightforward. Second, the ability of States to intercede against Federal orders to call forth the militia, and thereby provide an additional check to ensure that the cause of military action is justified, is vital to the prevention of {unchecked & unending} military action by the Federal government. Since war is one of the most {obvious & unchallenged} powers which the Federal government has, it would make sense that there is a danger of that power being exploited. Consider that the United States has been in a near constant state of war for over 100 years; every time we get out of a war, somehow, we find another one. Does no one find that odd? As long as there is no mechanism for anyone to push back against the whims of the Federal government to engage in military actions, there will always be an incentive for the Federal government to exploit that arena in order to {increase & cement} its power. Another important point is that, in their original design, the Federal government was forbidden from deploying the militia into foreign territory; militia were a defensive-only military force. Which provides yet another limit upon the government getting involved in endless foreign wars.
This prohibition comes from the interaction between {[Article 1 of the Constitution] & [the 10th Amendment]}. The 10th Amendment explicitly ensures the understanding that the federal government only has those powers which are explicitly granted to it by the Constitution, and nothing else.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
— 10th Amendment to the US Constitution [19]
So, when the Constitution, grants the authority to call up the militia for an explicitly specified list of acceptable purposes, the 10th Amendment constrains that authority to only be used for those purposes.
“The Congress shall have Power … To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;”
— Article 1, Section 8, Clause 15 [19]
The Constitution actually grants that power to the Congress. Or, more specifically, it grants Congress the authority to “provide for” that authority. In the Militia Act of 1795, which updated the Militia Act of 1792, Congress delegated that authority to the President. [106]
“An ACT to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; and to repeal the act now in force for those purposes.
Sec. 1. BE it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the state, or states, most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his orders for that purpose, to such officer or officers of the militia, as he shall think proper. And in case of an insurrection in any state, against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such state, or of the executive, (when the legislature cannot be convened) to call forth such number of the militia of any other state or states, as may be applied for, as he may judge sufficient to suppress such insurrection.
Sec. 2. And be it further enacted, That whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, it shall be lawful for the President of the United States, to call forth the militia of such state, or of any other state or states, as may be necessary to suppress such combinations, and to cause the laws to be duly executed; and the use of militia so to be called forth may be continued, if necessary, until the expiration of thirty days after the commencement of the then next session of Congress.”
— Militia Act of 1795 [39] [40]
So, while the president does have the authority to call up the militia of the States, he can only do that when a sufficient justification exists, and even then, he can only call up the militia for the purpose of carrying out one of those 3 explicitly listed tasks, and nothing else. Nowhere in either the Constitution nor the Militia Act of 1795, does it grant the President the power to call up the militia for the purpose of engaging in a foreign war, nor does it grant him the power to command the militia into foreign territory. He can only use the standing army for that; the militia is entirely a defensive force, unless they volunteer otherwise.
Furthermore, even if such States did initially acquiesce, and send the requested militia troops, under the Militia Act of 1795, men called forth for militia service were protected from long term engagements by a maximum of 3 months per year of compelled service, as well as uniform rotation within the collective pool of all other able-bodied men.
“Sec. 4. And be it further enacted, That the militia employed in the service of the United States, shall be subject to the same rules and articles of war, as the troops of the United States: And that no officer, non-commissioned officer, or private of the militia shall be compelled to serve more than three months, after his arrival at the place of rendezvous, in any one year, nor more than in due rotation with every other able-bodied man of the same rank in the battalion to which he belongs.”
— Militia Act of 1795 [39] [40]
After 3 months, those men who had been called forth for service in the militia which had been submitted to Federal control, would be entitled to relief & returning home to their respective States. Thus, every 3 months, the Federal militias would need to be reinforced by the States; granting them the opportunity to once again refuse, and thereby terminate their support of the given Federal military action. So, not only did the States have the ability to prevent any such military action from happening in the first place, but effectively, they could reanalyze it every 3 months, and intervene if necessary to end it. When you combine this with the Federal oversight of Congress (half of which was controlled by the State governments; i.e. the Senate), through the 2-year limit on military funding, and the requirement of a declaration of war from Congress, you can start to see how, if properly implemented, it would have been much more difficult to engage in war at all, let alone do so constantly for a century.
However, once again, this is no longer the case.
First, in the Act of April 18, 1814, the maximum duration of compelled service in the militia was extended to 6 months, and then, in the Militia Act of 1862 [34], during the civil war, it was extended to 9 months, and both sides enacted temporary Conscription Acts which established the capacity to draft men into the army for the duration of the war. Then, in the Militia Act of 1903 [35], also called the “Dick Act”, the militia began a transformation.
Next article in this series: The National Guard
Citations
This entire Constitution series was written as a single big document over the course of several years; so, all the citations are mixed up together. When I went back to break it up into pieces, I wasn’t confident that I could redistribute all the citations & their reference numbers without screwing something up. So, I decided to leave all the citations together, and post them as the final article in the series.
