Intro To The Constitution (Part 27)
Previous article in this series: The President’s Authority To Call Up The Militia
Several times through the history of the US, in order to assist the militia, Congress passed various acts, allowing State militias to train with the Federal Army (and even attend military academies), and apportioned Federal funds to purchase {weapons, ammo, & supplies} which were distributed to the various States for their militias. States maintained “organized” or “active” militias, composed of volunteers who participated in these Federal programs providing {training & equipment}. In the Militia act of 1903 [35], these were formally split off into separate pieces: the “organized militia” (i.e. militiamen who participated in these federal training programs) was named the “National Guard”, and the “unorganized militia” (i.e. all the other men) was called the “Reserve Militia”; this act also authorized the President to call up these National Guard units for up to the 9-month limit, for the same list of exigencies as the militia. At this point, the National Guard created by this Act, was still a State organization. Each State had her respective National Guard unit, which was a select militia (i.e. “organized” militia), under the command of that State, which received Federal funding & standardized training.
In the Militia Act of 1908 [220], Congress removed the 9-month limit on militia service, and instead, set the maximum duration of service to the remainder of the militiaman’s commission or enlistment term. Also, they added a clause to Section 4, which explicitly subjected the Governor to the President’s authority over the militia, by granting the President the authority to issue commands to the militia through the Governor; effectively treating the governor as a lesser officer in his chain of command. Finally, they added a clause to Section 5, which explicitly granted the president the authority to command the militia into foreign territory.
In the National Defense Act of 1916 [33] (AKA: Militia Act of 1916), sections 70 & 73, required members of the State National Guards to take Federal oaths to defend the Constitution of the United States, and to obey the orders of the President. Section 111 granted the President the authority to draft members of the State National Guards into the standing army, “to serve therein for the period of the war unless sooner discharged”, and “All persons so drafted shall, from the date of their draft, stand discharged from the militia, and shall from said date be subject to such laws and regulations for the government of the Army of the United States as may be applicable to members of the Volunteer Army”; effectively severing the State’s control, and bypassing all protections of militia service, by simply forcibly terminating their membership in the militia and drafting them into the “Volunteer” standing army.
A month & a half after the US joined World War I, the Selective Service Act of 1917 [221] [222] [223] [224], established the mechanism for drafting all men in the country between {21 & 30} years old into the Federal military for “the existing emergency”. The Constitutionality of this was challenged, but in 1918 the Supreme Court held it to be Constitutional. Later in 1918, it was amended to expand the ages to {18 & 45}. Selective Service was officially shut down in July 1919; 8 months after the Armistice.
The National Guard Act of 1933 [225] [226] established “The National Guard of The United States” as a Federal component of the Army, and subjected all of the State National Guards to its authority. It required that anyone joining a State National Guard, also join the Federal National Guard of The United States, in what is now referred to as “Dual-Enlistment”. It also granted the President the authority to Federalize the State National Guards (i.e. transfer them to Federal Control, terminating State control), both at the level of units (i.e. company, brigade, etc.) and/or at the individual level (i.e. specific people), but doing so is a big deal. In other words, it’s not just a common order issued by the chain of command, but is rather an explicit & overt act by the President, to Federalize a State’s National Guard; similar to calling up the militia under the old system, since doing so severs State authority over those units or individuals that are Federalized, until they are returned to State control. While they are under the control of the State, they are not “…held or deemed to be officers or employees of the United States, or persons holding any office of trust or profit or discharging any official function under or in connection with any department of the Government of the United States.” In other words, while they are under State control, they are merely a State entity, that serves as a reserve from which the Federal National Guard of the United States can pull when necessary. But, only when they actually do that, and call them to “active duty” in Federal service, and they are under the exclusive control of the Federal Government, are they considered to be a Federal entity (similar to the issue of State militia being mustered-in to Federal service, we looked at in a previous article).
The Selective Service Act of 1940 [227] reestablished the Selective Service system, and instituted the first draft during peacetime in US history. It lasted through WW2, and then expired in 1947. Then, the following year the Selective Service Act of 1948 [228] replaced it, and established the Selective Service system we still have today; though there have been many amendments to it since.
Finally, under the Compact Clause of the Constitution, Congress is allowed to regulate the means by which States maintain a military force in times of peace, as well as other things that might risk war, such as entering into treaties, invading foreign lands, etc. However, States still require some means of defending themselves, as is implicitly admitted in the tail-end of that very clause, wherein it says that, without the consent of Congress, States are not allowed to: “…engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” This explicitly affirms that, under the right circumstances, the States have the right to defend themselves militarily, without the consent of Congress. But, how can they do that if they don’t have a military force with which to do it? This implicitly confirms that the States have the right to have some kind of military force, independent of any Federal Army. Originally, the militia filled this role, but now that the militia is mangled into the National Guard system, what happens when the Federal government takes control over a State’s National Guard? The Federal Government has the authority to take command of the entire National Guard, so if a State’s whole National Guard is federalized, then they no longer have a force capable of defending the State. So, Title 32 of the US Code (Specifically: 32 U.S.C. § 109) provides for an alternative State military force, called the “State Defense Force”; also known as “Home Guard”. The structural military units within a State’s Defense Force, are not part of the National Guard, and cannot be Federalized. However, the individual people serving in a State’s Defense Force are not exempt from Federal Military service, and thus, can be drafted. So, in other words, the Federal Government cannot go to a State, and demand control over one of its SDF battalions or whatever, as it can with the National Guard, but they can simply draft all of the men who serve in it, and put them into the standing army.
There have obviously been more changes since then, but those are the major steps which brought us from the original Constitutional design of the militia, to the modern National Guard system we have today.
Next article in this series: State Intercessory Power
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.
