#29: Control of state militias
/Section 8 of Article 1 of the Constitution lists the specific powers of the Congress, including these military provisions:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
The Congressional power to create and sustain a national army and navy was widely accepted by all but Sam Adams and a few proponents of states’ rights. Americans in 1787 had plenty of reason to fear attack, and a strong national army was appealing. But the Constitution went further, adding these new Congressional powers:
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
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 the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress
The militias were meant to be separate from the standing national army. The national army was for repelling foreign invasion. The state militias would be more of a home guard, for the state’s internal security. People in the individual states had been comforted by the idea that their own state militia would serve as a safeguard against national tyranny. They were ready to accept a stronger national government with a standing army, so long as they could defend their state’s rights with their militia. And under the Constitution, Congress grasped control of the militias, too!
Hamilton justified this controversial national arrogation on practical terms:
It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness.
In short, various units of soldiers are most effective together if they are familiar with the same weapons and the same commands and the same organization. And the best way to accomplish that would be to assert national authority over all the militias. The states would still be allowed to appoint officers over their militias and to keep them quartered in state. But the national authority would dictate their training and their organization.
I should clarify that militias, as used here, refers to an organized and authorized military unit of part-time and usually volunteer soldiers. The standing army would be professional, career soldiers. The militia would receive similar training but would be part time. They would be a second line of defense in case of an emergency too large for the regular army to handle. The militia as described here has nothing to do with the unauthorized groups of armed men and women that exist today and call themselves militias.
In Federalist #29, Hamilton responds to a particular criticism that was floating around at the time – that the Constitution failed to empower magistrates (which could include any local, state or national executive officer) to call forth armed forces, including ad hoc volunteers called a “posse comitatus” in cases of emergency. Hamilton replies that, of course the Constitution allows that:
It would be as absurd to doubt, that a right to pass all laws NECESSARY AND PROPER to execute its declared powers, would include that of requiring the assistance of the citizens to the officers who may be intrusted with the execution of those laws
Interestingly, Congress passed legislation in 1878 putting an end to this wide open power. As part of the withdrawal of national troops from the defeated but unreconstructed South, a Posse Comitatus Act was adopted that limited how the army can be used in support of civil administration.
America’s military hierarchy today includes active duty professionals in the regular army, navy, air force and coast guard. (Marines are part of the navy.) The US army reserve are additional national troops subject to deployment, but not on active duty. National guard units exist in every state, and can be put to work by either the state governor or the president. Many states also have an additional state defense force under the command of the governor only.
When the new Constitution gave Congress and the president power over the state militias, it was controversial. States feared the national government would use those state militias to impose national policies against the will of the states. And they did – in a big way. The Civil War was fought mainly by state volunteer regiments. After the war, US troops continued to occupy the South for several years to enforce national laws – especially the new 13th, 14th and 15th amendments giving rights to former slaves.
The records of military actions against American citizens since the Civil War includes deployment against striking coal miners, doomsday cultists and unemployed old soldiers. State National Guard have shot college students and stood forth to control rioters and protesters. Those deployments against rioters and protesters have in some cases aggravated tensions. But in many other cases, Guard troops have helped defuse dangerous situations and saved lives.
Discuss:
How much do you know about the National Guard in your state?
Does that state militia give you confidence or a sense of security?
Should the command of all American armed forces stay as it is? Or should it be more concentrated (under the president)? Or should it be more distributed (under governors or other officers?
