Intro To The Constitution (Part 28)
Previous article in this series: The National Guard
Given the perspective & design I’ve described about the militia and its vital importance as part of the integral checks & balances of the Constitutional design, contrasted with its evolution into the National Guard system, you may be wondering how they justified the legality of such invasive redesign of the entire system; all without any Constitutional Amendments. What Constitutional authority gave them the right to subvert it in this way?
Well, the official interpretation of the militia clauses in the Constitution is that Congress’ power over the militia is “unlimited”:
“The Supreme Court has characterized Congress’s power over the militia as ‘being unlimited, except in the two particulars of officering and training them’ under the Militia Clauses, such that the power ‘may be exercised to any extent that may be deemed necessary by Congress.’ ”
— ArtI.S8.C16.1 Congress’s Power to Organize Militias – Constitution Annotated – Congress.gov [109]
And they use that as justification for subverting the militia and converting it into the National Guard:
“Under the National Defense Act of 1916, the militia, which had been an almost purely state institution, was brought under the control of the federal government. The act divided ‘militia of the United States’ … into several classes of organized militias, including the National Guard. Among its measures, … The act also authorized the President in certain emergencies to ‘draft into the military service of the United States to serve therein for the period of the war unless sooner discharged, any or all members of the National Guard and National Guard Reserve,’ who thereupon should ‘stand discharged from the militia.’
The Militia Clauses do not constrain Congress in raising and supporting a national army. The Supreme Court has approved the system of dual enlistment, under which persons enlisted in state militia (National Guard) units simultaneously enlist in the National Guard of the United States, and, when called to active duty in the federal service, are relieved of their status in the state militia. Consequently, the restrictions in the first militia clause that limit the militia to be called forth for three specified purposes do not apply to the federalized National Guard. Nor is there a constitutional requirement that state governors hold a veto power over federal duty training conducted outside the United States or that a national emergency be declared before such training may take place.”
— ArtI.S8.C16.1 Congress’s Power to Organize Militias – Constitution Annotated – Congress.gov [109]
But that Supreme Court case which they cite as declaring Congress’ power over the militia to be “unlimited” is Houston vs Moore (1820), and it doesn’t even say that. What it says is:
“Congress has power to provide for organizing, arming and disciplining [the militia]; and this power being unlimited, except in the two particulars of officering and training them, according to the discipline to be prescribed by congress, it may be exercised to any extent that may be deemed necessary by congress.”
— Houston v. Moore (1820) [32]
What it says is that Congress’ power to “provide for organizing, arming and disciplining [the militia]” is “unlimited”, not that Congress’ power to do anything they want with the militia is unlimited.
And the court case they cite as justification for their authority to uphold this National Guard loophole, and cement their denial of the State governments every last shred of their Constitutional authority to intercede on behalf of their militias, was Perpich v. Department of Defense (1990). Here’s the summary of the case which was ultimately upheld in the final ruling:
“Since 1933, federal law has provided that persons enlisting in a State National Guard unit simultaneously enlist in the National Guard of the United States, a part of the Army. The enlistees retain their status as State Guard members unless and until ordered to active federal duty and revert to state status upon being relieved from federal service. The authority to order the Guard to federal duty was limited to periods of national emergency until 1952, when Congress broadly authorized orders ‘to active duty or active duty for training’ without any emergency requirement, but provided that such orders could not be issued without the consent of the governor of the State concerned. After two State Governors refused to consent to federal training missions abroad for their Guard units, the gubernatorial consent requirement was partially repealed in 1986 by the ‘Montgomery Amendment,’ which provides that a governor cannot withhold consent with regard to active duty outside the United States because of any objection to the location, purpose, type, or schedule of such duty. The Governor of Minnesota and the State of Minnesota (hereinafter collectively referred to as the Governor) filed a complaint for injunctive relief, alleging, inter alia, that the Montgomery Amendment had prevented him from withholding his consent to a 1987 federal training mission in Central America for certain members of the State Guard, and that the Amendment violates the Militia Clauses of Article I, § 8, of the Constitution, which authorize Congress to provide for (1) calling forth the militia to execute federal law, suppress insurrections, and repel invasions, and (2) organizing, arming, disciplining, and governing such part of the militia as may be employed in the federal service, reserving to the States the appointment of officers and the power to train the militia according to the discipline prescribed by Congress. The District Court rejected the Governor’s challenge, holding that the Federal Guard was created pursuant to Congress’ Article I, § 8, power to raise and support armies; that the fact that Guard units also have an identity as part of the state militia does not limit Congress’ plenary authority to train the units as it sees fit when the Guard is called to active federal service; and that, accordingly, the Constitution neither required the gubernatorial veto nor prohibited its withdrawal.
The Court of Appeals affirmed.”
— Perpich v. Department of Defense (1990) [110]
I’ll be honest, at this point, I’m rapidly losing my will to sift through this horse shit. Once you understand the {clear & explicit} intent behind both {[the 2nd Amendment] & [the militia itself]}, and the deliberate structure that was put into place to explicitly {ensure & protect} these systems, and prevent the very subversion which we have now come to accept, there’s only so much legal gymnastics that I can tolerate.
When the foundation of the law is as {cut & dry} as the previous sections have illustrated, what are all of these recent {court-cases & laws}, other than just a fabricated narrative to facilitate the subversive corruption to which we have already been subjected? Remember these quotes:
“An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.”
— Norton v. Shelby County, 118 U.S. 425 (1886); US Supreme Court [85]
“a law repugnant to the Constitution is void”
— Marbury v. Madison, 5 U.S. 137 (1803); US Supreme Court [83]
“Where rights secured by the Constitution are involved, there can be no rulemaking or legislation which would abrogate them.”
— Miranda v. Arizona, 384 U.S. 436 (1966); US Supreme Court [84]
“There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”
— Alexander Hamilton; Federalist No. 78 [234]
It doesn’t matter what laws Congress has passed to justify their subversion of the Constitution. It doesn’t matter how many Supreme Court Justices have been complicit in their crimes. When the Constitution explicitly says “You can only do this, and you can’t do that”, and they do it anyway, and for a century, confirm amongst themselves their right to do it, at some point, what are we even doing here? Either the Constitution remains the highest law in the land, in which case all of their {denials & assertions} were {null & void} from the moment they put pen to paper. Or, we’ve decided to throw out the Constitution, and do whatever we want, in which case the {justification & [binding authority]} of their claim of dominion is merely the threats of the faction with the biggest guns.
“In time of actual war, great discretionary powers are constantly given to the Executive Magistrate. Constant apprehension of war, has the same tendency to render the head too large for the body. A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence against foreign danger, have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people. It is perhaps questionable, whether the best concerted system of absolute power in Europe could maintain itself, in a situation, where no alarms of external danger could tame the people to the domestic yoke.”
— James Madison; Madison Debates – June 29, 1787 [108]
Note: The above quote comes from a transcript of debates, and the original source contains several shorthand abbreviations for words; like “cd.” Instead of “could”, and “agst.” For “against”, etc. Since these words occur several times in that quote, and since I’m correcting an abbreviation to the same word, in fact the actual word that was originally spoken, I didn’t want to add a bunch of bracket alterations that might make it appear as though I had altered the meaning of this quote. So, I just correcting the quote to use the full spelling of these words. But, other than that, this quote is unchanged.
This is the last content article in the Constitution Series. The next one is the list of sources: Constitution Citations
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.
