Declaration of Independence

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. - That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Sunday, November 20, 2011

Call Forth the Militia

                    The topic of discussion for this Constitution Monday comes from Article I.8.15:  "The Congress shall have Power … To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions."  This provision in the Constitution gave power to Congress to call up any or all state militias - singly or en masse.

                    W. Cleon Skousen in writing about this clause pointed out that "both the President … and the Congress … are prevented from achieving an armed dictatorship" because the President does not have "authority to call up the militia" and the Congress "is limited to the circumstances when the militia may be called."  He wrote that the three situations for the militia to be called up are: 
1) "To execute the laws of the union - the requirements of the Constitution, the acts of Congress, and the treaties," 2) "To suppress insurrections - which are open and active opposition to the execution of the law," and 3) "To repel invasions by an enemy intent on military conquest or the overthrow of the government."  (See The Making of America - The Substance and Meaning of the Constitution," p. 450.)

                    Mackubin Owens wrote, "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.'  From its origins in Britain, the posse comitatus (meaning to be able to be an attendant) was generally understood to constitute the constabulary of the `shire.'  When order was threatened, the `shire-reeve,' or sheriff, would raise the `hue and cry,' and all citizens who heard it were bound to render assistance in apprehending a criminal or maintaining order.  The Framers transferred the power of calling out the militia from local authorities to the Congress."  (See The Heritage Guide to the Constitution, p. 139.)

                    According to Owens, the Anti-Federalists thought that the militia should stay under the direction of the states and worried that their militia would be sent far from home.  Congress passed the "Calling Forth" Act of 1792, which delegated the authority to call out the militia to the President.  President George Washington used the procedures in the Act when he called forth the militia during the Whiskey Rebellion of 1794.

                    Owens wrote Congress "refined the language" of the Act in 1795, but there was still a "challenge to presidential authority during the War of 1812."  When "President James Madison ordered the governors of Connecticut and Massachusetts to provide militia detachments for the defense of the maritime frontiers of the United States," the governors refused.  The governor of Massachusetts asked his state's Supreme Judicial Court for an opinion.

                    The 1795 Act, which delegated to the President the power to call out the militia, was judged to be constitutional.   Owens continued:  "The issue was finally resolved by the Supreme Court in 1827 in Martin v. Mott.  Although the case explicitly concerned the validity of a court-martial of a militiaman, the decision rendered by Justice Joseph Story validated the claim that the President had the exclusive right to judge whether there was an exigency sufficient for calling for the militia.  State governors, however, retain concurrent authority to call out their respective militias to handle civil and military emergencies.  Houston v. Moore (1820)."  (See Guide, pp. 139-140.)

                    I was curious about what constitutes the modern-day militia.  I searched the Internet and found the militia in our day is the National Guard and theNational Guard Reserve.  The National Guard, however, is not to be confused with the National Guard of the United States, which is a federallyrecognized reserve military force, although the two are linked.  


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