THE

AMERICAN LAW REVIEW.

MAY-JUNE, 1916.

MILITARY POWERS OF NATION AND STATE UNDER THE CONSTITUTION.

Ever since the Civil War settled the question of a State's power to secede from the Union, there has been no political reason for the maintenance of state military organizations. It is true that the State may still require military force to put down "domestic violence" beyond the control of the local police, but by Article IV, Section 4, of the Constitution it is expressly provided that the National Government shall on the application of the State perform this duty for it; and it may be of interest to know that in New York there has been some agitation to relieve the national and state troops of even this duty by imposing it on a state constabulary. It would seem, therefore, that Congress might properly withdraw its support from the state militia and develop an army under the exclusive control of the National Government. As we shall see, this is substantially the purpose of the pending legislation. It is my purpose, however, to discuss this legislation only to illustrate the broader, and to the lawyer, more interesting questions involved in the constitutonal powers of the National and State Governments over our military forces as interpreted by the decisions and dicta of the Supreme Court. But before attempting this discussion it is important to sketch (321)

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briefly the development of our military system—a system which is the outgrowth of public sentiment against a strong National Government at a time when its dangers were exaggerated. To avoid confusion it might also be advisable at this point to note the different senses in which the word "militia" is used. When the Constitution was adopted it probably meant the active colonial troops as distinguished from those enlisted in the continental army, just as today it popularly means state troops, but the statutes define the term as all able-bodied male citizens (and those who have declared their intention to become citizens) between certain ages-that is, all whom the Nation or State may call to military service.

The roots of our military policy strike back to the reign of Henry II in the year 1189. The treaty which secured Henry the succession bound him to disband the mercenary army. Its power had been abused and become hateful to the nation. As a substitute all able-bodied freemen, later called the militia, were sworn to serve under the Sheriff of each County. To be sure, mercenary armies were frequently used through the centuries that followed, especially for foreign service, but the isolation of England was in itself such a protection that the people were always unwilling to submit long to the cost of supporting it, or to the power it gave to the King to levy taxes without the consent of Parliament. No better illustration of this fact can be found than in the revolution leading up to the restoration of the Bill of Rights just four centuries later, when the Crown was again forced to recognize the principle that no "standing army" could be raised or kept "within the kingdome in time of peace, unless it be with consent of Parlyament". . . and "that the subjects". . . "may have arms for their defence suitable to their conditions, and as allowed by law." The right of the people to keep and bear arms as a defense against the unlawful exercise of power by the Crown was here reitrated.