“The Congress shall have power to…provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of officers, and the authority of training the militia according to the discipline prescribed by Congress…” Article 1, Section 8, Clause 16 of the Constitution.
The militia, as defined in one of our last Constitution posts, was “a body of citizens organized for military service.” Many of the framers of the Constitution were troubled at the thought of a standing army in times of peace, fearing that a standing army would become too powerful. The militia on the other hand, comprised of ordinary citizens, was to be our nation’s only defense against foreign and domestic powers. As Patrick Henry stated in the Virginia ratifying convention, “the militia is our ultimate safety. We can have no security without it.” In the founding era, without the militia we would have had no military establishment.
“Congress shall have Power…To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions…”
This week’s Constitution Post deals with the Militia Clause.
First of all, let’s define exactly what a militia is. In the Founding era, a militia was “a body of citizens organized for military service.” Its members were volunteers who would drill with their local comrades on the weekends or once a month and rouse to action in the event of a threat to their state or nation. The Founders felt that the greatest way to avoid military corruption was to comprise America’s defensive military force of the people. Mackubin Owens writes,
“For the Founders, the militia arose from the posse comitatus, constituting the people as a whole and embodying the Anglo-American idea that the citizenry is the best enforcer of the law. ‘A militia when properly formed,’ wrote Richard Henry Lee in his Letters From the Federal Farmer, ‘are in fact the people themselves…and include all men capable of bearing arms.'”
The militia is a highly important component of America’s military identity. Since there was no standing army under the Constitution, the militia was our fledgling country’s first means of defense. In the event of sudden invasion or a domestic crisis that rivaled the ability of local law enforcers, the militia was her first means of defense.
While many units of the contemporary National Guard serve active duty, many of them are equivalent to the colonial militia. Members of these units drill with fellow citizens of their state, while leading otherwise civilian lives, and are called into service only during times of crisis.
Under the Articles of Confederation, no provision was made for cases of insurrection or crimes that would exceed the local law enforcers’ abilities, and Congress’s power to summon the militia was relegated to cases of invasion. This created a problem for the new United States. If the local law enforcement was unable to suppress an insurrection or other lawless act, Congress had no power to call forth any force to rectify the situation. Theoretically, an insurrection could then run wild, until it grew into a full-scale invasion, at which point Congress would be able to activate the militia.
Because of this, the Framers thought it expedient to expand the power to call forth the militia to include cases of insurrection and certain cases of lawlessness that exceeded the abilities of local law enforcers.
The power to “call forth the the Militia,” like other powers we’ve considered, is logically delegated to Congress, given the purposes of the U.S. Constitution, as outlined in its Preamble. Among other things, the Preamble states,
“We the People of the United States, in Order to…insure domestic Tranquility [and] provide for the common defense…do ordain and establish this Constitution for the United States of America.”
Part of fulfilling these goals was the ability to utilize defensive military action to repel invasion and suppress rebellion; so, in order to provide for the common defense, Congress had to have the power to summon the militia for action. As Joseph Story said in Commentaries on the Constitution,
“The power of regulating the militia, and of commanding its services to enforce the laws, and to suppress insurrections, and repel invasions, is a natural incident to the duty of superintending the common defense, and preserving the internal peace of the nation.”
The Militia Clause, according to Joseph Story, passed the Constitutional Convention (where the Framers proposed, amended, and passed the Constitution) with only one minor amendment; it did meet with some various objections, however, in some of the states’ ratifying conventions (where the States individually affirmed the Constitution). The debate centered on whether the power to call forth the militia should be vested in the individual states or in Congress. Luther Martin, for example, objected to the Militia Clause, writing, “As it now stands, the Congress will have the power, if they please, to march the whole militia of Maryland to the remotest part of the union, and keep them in service as long as they think proper, without being in any respect dependent upon the government of Maryland for this unlimited exercise of power over its citizens.”
The Framers, on the other hand, felt that this concern was unwarranted. First, if a certain state was invaded, it would make sense that the other states would come to its aid. Second, the other state’s congressmen, it seems, would prevent frivolous use of the militia. Virginia could not unilaterally send any particular militia detachment to wherever she chose. The interests of each state would be represented, and that would be a tremendous safeguard against the frivolous use of the militia in local interests. In other words, the power over the militia would still be vested in the people; the only difference was that the people would hold this power through their congressmen, rather than their state legislatures.
I hope you’ve enjoyed learning more about our military system! I encourage you to keep studying for yourself, being careful to note any abuses or derelictions of this clause!
The Congress shall have Power To…make Rules for the Government and Regulation of the land and naval Forces….
Today’s Constitution post covers the Military Regulations clause, which correlates to the previous two clauses we’ve discussed. Right after giving Congress the power to “raise and support Armies,” and to “provide and maintain a Navy,” the Constitution gives Congress the power to “make Rules for the Government and Regulation of the land and naval Forces.” This clause was actually copied from the Articles of Confederation during the Constitutional Convention, and, according to the Heritage Guide to the Constitution, “passed without controversy.”