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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 VOL, L.

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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, un- . less it be with consent of Parlyament" ... and “that the subjects"...“may have arms for their defence suitable to their conditioris, 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.

Now when the colonists came to this country they brought with them a very clear conception of their rights, among them being “the right of the people to keep and bear arms,” so that when King George and his Tory Parliament attempted to tax them without representation, and to enforce his levy by a seizure of the arms at Concord, the militia at Lexington were called out. The Revolution followed. Bodies of militia, estimated at from sixty to one hundred thousand were raised in the colonies to supplement the continental army. Though endowed with neither more nor less personal courage than other men, they proved to be conspicuously inefficient and unreliable. There were several reasons for this, but only two of these need be mentioned here -first, the fact that they were amenable only to the sovereignty of their own colony, and second, the fact that there was no uniformity of organization and armament.

When the war closed it was only natural that the people should regard with suspicion the establishment of a new central government that might, as England had done, oppose their interests. The traders of New England, the Dutch of New York, and the planters of Virginia had little in common. There were, however, two sides to the question, and under the leadership of Hamilton they came to realize that the maintenance of thirteen little nations, each required to support an army, and perhaps a navy, would be more intolerable than the oppression of a central govgovernment, whose head had no hereditary powers. The adoption of the Constitution followed. By it the States yielded to the National Government part of their sovereignty, the several States retaining complete sovereignty in all matters not specifically delegated to the National Government. In other words, the anomaly of a double allegiance was established—an allegiance to the State and to the Nation, for the power of the National Government is applied not merely to the States as members of the Union, but to the individuals within their borders. This is the foundation fact on which our system of government is built.

For the convenience of the reader I have grouped together all the clauses of the Constitution relating to the military powers of Congress, the President and the States:

CONSTITUTION OF THE UNITED STATES OF AMERICA.

ARTICLE I.

Sect. 8. The Congress shall have power-
To... provide for the common defence ...;
To declare war, .,.;.

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To make rules for the government and regulation of the land and naval forces;

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;

To ... exercise . . . authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, ... and other needful buildings; ...

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, ...

Sect. 10 ....

No State shall, without the consent of Congress, ... keep troops or ships of war in time of peace, ...

ARTICLE II.

Sect. 2. The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States...

Sect. 3. ... he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States ...

ARTICLE IV.

Sect. 4. The United States shall guarantee to every State in this Union a republican form of government and shall protect each of them

against invasion; and on application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence ...

ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE CONSTI

TUTION OF THE UNITED STATES.

ARTICLE II.

· · · · · · · · · · · · ·

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

ARTICLE V.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; ...

No question was more thoroughly discussed by the Constitutional Convention than the military power to be entrusted to the National Government, because the two facts most keenly impressed on its members led to opposite conclusions. On the one side loomed the fact that the centralized unsympathetic power of England's King and Parliament had been responsible for the War of the Revolution; on the other, the fact that the absence of a centralized authority in the colonies had been responsible in large measure for the enormous cost of that war. It was therefore a matter of considerable importance so to harmonize and balance these dangers that liberty would not be sacrificed to efficiency or efficiency to liberty. A compromise was necessary. Congress was given the power to “raise armies." It was also given the power to provide for the organization and armament of the state militia, but to the States was delegated the power to execute its regulations by the appointment of the militia officers. It should also be observed that the National Government was given power to

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