The War Powers and the Remaining Enumerated Powers

W. Cleon Skousen — Sun, 08 Jun 2008 01:08:44 +0000

W. Cleon Skousen. The War Powers and the Remaining Enumerated Powers.

One of the most important reasons the states united together was to promote their mutual defense. Spelling out the war powers was therefore a highly significant segment of the Constitution.

It will be noted that the entire depository of power in connection with the military was vested in the Congress, not the President. This meant that Congress had to declare war before the President could take action. An exception, of course, was allowed in the case of an unexpected invasion, authorizing the President to take emergency action as commander in chief of the armed services.

Each of the remaining enumerated powers has unique features which make this chapter an interesting and challenging part of America’s political profile.

Principle #95 (from Article I.8.11): The people of the states empower the Congress to declare war.

This provision gives Congress the exclusive right to declare war.

In the Constitutional Convention some thought the President should have the power to declare war, while others favored the Senate. It was finally decided that the profoundly serious business of declaring and conducting war should be the responsibility of the whole Congress. This power has been used in the following instances:

1. In 1812 Congress passed an act declaring war on Great Britain because of hostile acts committed by that nation against the United States.

2. In 1846 a resolution of Congress declared that a state of war existed with Mexico because of hostile acts of that country.

3. In 1898, Congress declared war on Spain over Cuba.

4. In 1917, a resolution of war was passed by Congress as a result of German attacks on the high seas, including the sinking of the Lusitania, in which many lives were lost.

5. On December 8, 1941, Congress adopted a resolution (with only one dissenting vote in the House) that the United States was in a “state of war” with Japan. Three days later, Germany and Italy declared war, and Congress passed a joint resolution accepting the state of war “which has been thrust upon the United States.”

It should be noted that there was no declaration of war in the Korean conflict nor in the Vietnam War. These were undertaken by the President as commander in chief of the U.S. armed forces because of U.S. commitments to the regional organization (SEATO) under the United Nations. Failure of the Congress to declare war seriously complicated the administration of these wars.

Questions which came up during the debates on this provision addressed concerns such as the following:

Should the President, as commander in chief, have authority to declare war?

Only Congress Can Declare War

C. Pinckney: “Observed that the President’s powers did not permit him to declare war.”

Can the President repel attacks even though there has been no official declaration of war?

President Must Repel Sudden Attacks Even Though No War Is Declared

Madison and Gerry: “Moved to insert ‘declare,’ striking out ‘make’ war, leaving to the executive the power to repel sudden attacks.”

Mason: “Was against giving the power of war to the executive because not safe to be trusted with it…. He preferred ‘declare’ to ‘make.’”

What is implied by the “power to declare war”?

An Exclusive Congressional Power

Jefferson: “The question of declaring war is the function equally of both houses [of Congress].”

“As the executive cannot decide the question of war on the affirmative side, neither ought it to do so on the negative side by preventing the [Congress] from deliberating on the question.”

“If Congress are to act on the question of war, they have a right to information [from the executive].”

“We had reposed great confidence in that provision of the Constitution which requires two-thirds of the [Congress] to declare war. Yet it can be entirely eluded by a majority’s taking such measures as will bring on war.”

“The power of declaring war being with the [Congress], the executive should do nothing necessarily committing them to decide for war.”

What should be the American policy toward war?

America’s Opposition to War

Jefferson: “No country, perhaps, was ever so thoroughly against war as ours. These dispositions pervade every description of its citizens, whether in or out of office.”

War Unwanted but Unfeared

Jefferson: “We love and we value peace; we know its blessings from experience. We abhor the follies of war, and are not untried in its distresses and calamities. Unmeddling with the affairs of other nations, we had hoped that our distance and our dispositions would have left us free in the example and indulgence of peace with all the world…. We confide in our strength without boasting of it; we respect that of others without fearing it.”

One War Is Enough

Jefferson: “I have seen enough of one war never to wish to see another.”

War to Be Avoided If Possible

Franklin: “I would try anything, and bear anything that can be borne with safety to our just liberties, rather than engage in a war with such near relations [as the British], unless compelled to it by dire necessity in our own defense.”

War Caused by Wicked Men

Franklin: “I believe in my conscience that mankind are wicked enough to continue slaughtering one another as long as they can find money to pay the butchers. But of all the wars in my time, this on the part of England appears to me the wickedest, having no cause but malice against liberty, and the jealousy of commerce. And I think the crime seems likely to meet with its proper punishment; a total loss of her own liberty, and the destruction of her own commerce.”

Futility of Most War

Franklin: “At length we are in peace, God be praised, and long, very long, may it continue. All wars are follies, very expensive and very mischievous ones. When will mankind be convinced of this, and agree to settle their differences by arbitration? Were they to do it, even by the cast of a die, it would be better than by fighting and destroying each other.”

War, a Terrible Waste

Franklin: “In my opinion, there never was a good war or a bad peace. What vast additions to the conveniences and comforts of living might mankind have acquired if the money spent in wars had been employed in works of public utility! What an extension of agriculture, even to the tops of our mountains; what rivers rendered navigable, or joined by canals; what bridges, aqueducts, new roads, and other public works, edifices, and improvements, rendering a … complete paradise, might have been obtained by spending those millions in doing good which in the last war have been spent in doing mischief; in bringing misery into thousands of families, and destroying the lives of so many thousands of working people, who might have performed the useful labor!”

Evils of War

Franklin: “Abstracted from the inhumanity of it, I think it wrong in point of human prudence; for whatever advantage one nation would obtain from another, whether it be part of their territory, the liberty of commerce with them, free passage on their rivers, etc., etc., it would be much cheaper to purchase such advantage with ready money than to pay the expense of acquiring it by war. An army is a devouring monster, and when you have raised it you have, in order to subsist it, not only the fair charges of pay, clothing, provisions, arms, and ammunition, with numberless other contingent and just charges to answer and satisfy, but you have all the additional knavish charges of the numerous tribe of contractors to defray, with those of every other dealer who furnishes the articles wanted for your army, and takes advantage of that want to demand exorbitant prices. It seems to me that if statesmen had a little more arithmetic, or were more accustomed to calculation, wars would be much less frequent.”

War Impractical

Jefferson: “Never was so much false arithmetic employed on any subject as that which has been employed to persuade nations that it is [in] their interest to go to war. Were the money which it has cost to gain, at the close of a long war, a little town or a little territory, the right to cut wood here or to catch fish there, expended in improving what they already possess, in making roads, opening rivers, building ports, improving the arts, and finding employment for their idle poor, it would render them much stronger, much wealthier and happier. This I hope will be our wisdom.”

War Should Be a Response to Insult

Jefferson: “I think it to our interest to punish the first insult, because an insult unpunished is the parent of many others.”

“It is an eternal truth that acquiescence under insult is not the way to escape war.”

Use Peaceful Pressures If Possible

Jefferson: “I do not believe war the most certain means of enforcing principles. Those peaceable coercions which are in the power of every nation, if undertaken in concert and in time of peace, are more likely to produce the desired effect.”

“If nations go to war for every degree of injury, there would never be peace on earth.”

Principle #96 (from Article I.8.11): The people of the states empower the Congress to grant letters of marque and reprisal.

This provision gave the Congress the exclusive right to grant letters of marque and reprisal (authority given to an individual to wage war against the enemy).

During the Revolutionary War, when the country had no navy, it was considered expedient to give “privateers” a letter of marque and reprisal so they could fit out their privately owned ships and capture British vessels without being treated as common pirates in case they were caught. (A pirate could be strung up or executed on the spot without trial or ceremony!)

The word marque means to “seize,” and reprisal implies the authority to “destroy.” Since a letter authorizing a privateer to engage in such activities could provoke war or expand the dimensions of a war, such a letter should be issued only by that branch of government which has the responsibility to declare war. In the United States, that plenary power belongs to the federal government.

Since the Declaration of Paris in 1856, letters of marque and reprisal have been considered prohibited by international law. Nevertheless, in very recent years American fishing boats requested permission to arm their boats in order to drive off Soviet fishing vessels which were deliberately destroying underwater nets and other expensive fishing gear. The government did not issue letters of marque and reprisal, but since the Soviet fleet was fishing in American waters, the Coast Guard went out and forced the Russian boats into Boston Harbor, where they were each subjected to very heavy fines.

Principle #97 (from Article I.8.11): The people of the states empower the Congress to make rules concerning that which may be captured on land or on water.

This provision gave Congress the exclusive right to regulate the capture of prisoners or the taking of land from the enemy.

Land captured by the armed forces does not automatically become part of the United States. Captured land ceases to be part of the foreign country to which it belonged, but its people cannot be counted as full citizens of the United States until the Congress has adopted the territory into equal status with the rest of the country. Puerto Rico is a case in point.

Principle #98 (from Article I.8.12): The people of the states empower the Congress to raise money in the support of its armies, but appropriations for that purpose shall not extend beyond two years.

This provision gives the Congress the right to raise money and support for a national military force.

In the Constitutional Convention there was strong opposition to a standing army. The entire army was demobilized just as soon as the Revolutionary War was finished. The Founders did not want the President to have the power to raise an army as the British kings had repeatedly done. Furthermore, they did not want the Congress to vest the President with permanent funds to support the military. Their object was to prevent both the President and the Congress from setting up a structure which might become a military dictatorship.

The authority of Congress to raise up an army implied the authority to tax the people (not the states as under the Articles of Confederation). Consequently, when war was declared in 1917, the Congress passed in rapid succession a series of acts laying upon all the people many kinds of emergency taxes. It also provided for the issuing of liberty bonds, and set the wheels in motion for the conscription of men, the building of ships, the making of munitions, and all the other legal requirements for the effective waging of the war.

The injunction to “raise and support armies” has always been interpreted to mean defensive armies. As the Supreme Court said in 1849:

“The genius and character of our institutions are peaceful, and the power to declare war was not conferred upon Congress for the purpose of aggression or aggrandizement, but to enable the general government to vindicate by arms, if it should become necessary, its own rights and the rights of its citizens.”

It was also intended that these would be largely civilian armies who would be mustered out of service after each emergency. One author says:

“The army of Europe which our Fathers feared was developed through centuries of plunder by adventurous or predatory rulers, one of the inducements to hireling service in the rank and file being a share of the pillage. But the armies which have been raised in the United States have been of entirely different origin and training. They have come from homes, from generations of homekeeping and right-respecting people, and they have been anxious to return home. Within a few months after the Grand Review of the Union armies in Washington after the Civil War, over a million veterans, fully equipped, had dissolved, as it were, and disappeared in the civilian life whence they came. And after World War I, 4,800,000 men, of whom 2,084,000 had gone to France and 1,300,000 had some active service at the front, hurried gladly to their homes and left off even the military titles which they had won.”

The West’s diplomatic mistake after World War II of building the Soviet technological machine (“in hopes she would mellow”) has now allowed Russia to become so strong and aggressive that it has forced nations of the West to build military defenses to contain her. Not only has the Soviet Union not mellowed, but through conquest she has become the greatest colonial power in the history of the world. This has necessitated gigantic expenditures for defense right at a time when the Supreme Court dictum in the Butler case has opened the floodgates of the treasury for mammoth social programs and services. Those involved in the social programs complain that they could receive more if the military were not demanding so much for defense. It turns out, however, that as of 1982, for example, the military was getting only twenty-seven cents out of every dollar spent by Congress, whereas forty-two cents out of every dollar were going in direct payments to individuals under various social programs, and twelve cents were going to local governments for public works and social services. This makes a total of fifty-four cents. As shocking as military expenditures have grown through the years, the outlays for social services have grown more than twice as much. The Founders declared that having an adequate defense is a top priority when a nation is at risk.

During the debates numerous questions arose concerning the government’s “war powers.” Here are some of the questions the Founders addressed:

Why should war be the responsibility of the people’s immediate representatives?

Congress Is the Logical Place to Assign General War Powers

McKean: “Is it not necessary that the authority superintending the general concerns of the United States should have the power of raising and supporting armies? Are we, sir, to stand defenseless amidst conflicting nations? Wars are inevitable, but war cannot be declared without the consent of the immediate representatives of the people. They [declaration of war] must also originate [with] the representatives of the people. They must also originate the law which appropriates the money for the support of the army: yet they can make no appropriation for a longer term than two years.”

Why must appropriations be limited to two years?

The House Changes Every Two Years

Dawes: “When we consider that this branch is to be elected every two years, there is great propriety in its being restrained from making any grants in support of the army for a longer space than that of their existence. If the election of this popular branch were for seven years, as in England, the men who would make the first grant, might also be the second and third, for the continuance of the army; and such an acquaintance might exist between the representatives in Congress and the leaders of the army as might be unfavorable to liberty. But the wisdom of the late Convention has avoided this difficulty. The army must expire of itself in two years after it shall be raised, unless renewed by representatives, who, at that time, will have just come fresh from the body of the people. It will share the same fate as that of a temporary law, which dies at the time [page 446] mentioned in the act itself, unless revived by some future legislature.”

Military Appropriations Permitted Every Two Years But Not Required

Sherman: “Remarked that the appropriations were permitted only, not required to be for two years. As the legislature is to be biennially elected, it would be inconvenient to require appropriations to be for one year, as there might be no session within the time necessary to renew them.”

Two Years Is Sufficient But One Year Would Be Too Short

Iredell: “Though Congress are to have the power of raising and supporting armies, yet they cannot appropriate money for that purpose for a longer time than two years…. But at the end of the second year from the first choice, the whole House of Representatives must be rechosen, and also one-third of the Senate. The people, being inflamed with the abuse of power of the old members, would turn them out with indignation…. In two years, a system of tyranny certainly could not succeed in the face of the whole people; and the appropriation could not be with any safety for less than that period. If it depended on an annual vote, the consequence might be, that, at a critical period, when military operations were necessary, the troops would not know whether they were entitled to pay or not, and could not safely act till they knew that the annual vote had passed.”

Can the government raise up an army only after hostilities break out?

Must Have a Creditable Standing Army Even in Peacetime

Wilson: “Ought Congress to be deprived of power to prepare for the defence and safety of our country? Ought they to be restricted from arming, until they divulge the motive which induced them to arm? I believe the power of raising and keeping up an army, in time of peace, is essential to every government. No government can secure its citizens against dangers, internal and external, without possessing it, and sometimes carrying it into execution. I confess it is a power in the exercise of which all wise and moderate governments will be as prudent and forbearing as possible. When we consider the situation of the United States, we must be satisfied that it will be necessary to keep up some troops for the protection of the western frontiers, and to secure our interest in the internal navigation of that country. It will be not only necessary, but it will be economical on the great scale. Our enemies, finding us invulnerable, will not attack us; and we shall thus prevent the occasion for larger standing armies.”

We Would Be Courting War Not to Have Some Military in Peacetime

Gore: “Is America to wait until she is attacked, before she attempts a preparation at defense? This would certainly be unwise; it would be courting our enemies to make war upon us.”

Lack of a Peacetime Army Would Invite a Sneak Attack

Phillips: “Mention is made that Congress ought to be restricted of the power to keep an army except in time of war. I apprehend that great mischief would ensue from such a restriction. Let us take means to prevent war, by granting to Congress the power of raising an army. If a declaration of war is made against this country, and the enemy’s army is coming against us, before Congress could collect the means to withstand this enemy, they would penetrate into the bowels of our country, and every thing dear to us would be gone in a moment.”

Circumstances Warrant a Contingent of Peacetime Military

Hamilton: “Restraints upon the discretion of the legislature in respect to military establishments in time of peace would be improper to be imposed….

“On one side of us, and stretching far into our rear, are growing settlements subject to the dominion of Britain. On the other side, and extending to meet the British settlements, are colonies and establishments subject to the dominion of Spain. This situation and the vicinity of the West India Islands, belonging to these two powers, create between them, in respect to their American possessions and in relation to us, a common interest. The savage tribes on our Western Frontier ought to be regarded as our natural enemies, their natural allies, because they have most to fear from us, and most to hope from them. The improvements in the art of navigation have, as to the facility of communication, rendered distant nations, in a great measure, neighbors….

“Previous to the Revolution, and ever since the peace, there has been a constant necessity for keeping small garrisons on our Western Frontier. No person can doubt that these will continue to be indispensable, if it should only be against the ravages and depredations of the Indians. These garrisons must either be furnished by occasional detachments from the militia, or by permanent corps in the pay of the government. The first is impracticable; and if practicable, would be pernicious. The militia would not long, if at all, submit to be dragged from their occupations and families to perform that most disagreeable duty in times of profound peace. And if they could be prevailed upon or compelled to do it, the increased expense of a frequent rotation of service, and the loss of labor and disconcertion of the industrious pursuits of individuals, would form conclusive objections to the scheme. It would be as burdensome and injurious to the public as ruinous to private citizens. The latter resource of permanent corps in the pay of the government amounts to a standing army in time of peace…. Here is a simple view of the subject that shows us at once the impropriety of a constitutional interdiction of such establishments, and the necessity of leaving the matter to the discretion and prudence of the legislature….

“If we mean to be a commercial people, or even to be secure on our Atlantic side, we must endeavor, as soon as possible, to have a navy. To this purpose there must be dockyards and arsenals; and for the defense of these, fortifications, and probably garrisons.”

Wouldn’t the state militia be sufficient without a regular federal military?

Not Sufficient to Rely Merely on State Militia

Corbin: “If some of the community are exclusively inured to its defense, and the rest attend to agriculture, the consequence will be, that the acts of war and defense, and of cultivating the soil, will be understood. Agriculture will flourish, and military discipline will be perfect. If, on the contrary, our defense be solely intrusted to militia, ignorance of arms and negligence of farming will ensue…. If the inhabitants be called out on sudden emergencies of war, their crops, the means of their subsistence, may be destroyed by it.”

Amateur Militia Inadequate

Hamilton: “If … it should be resolved to extend the prohibition to the raising of armies in time of peace, the United States would then exhibit the most extraordinary spectacle which the world has yet seen — that of a nation incapacitated by its Constitution to prepare for defense before it was actually invaded…. We must receive the blow before we could even prepare to return it. All that kind of policy by which nations anticipate distant danger and meet the gathering storm must be abstained from, as contrary to the genuine maxims of a free government….

“The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind. Considerations of economy, not less than of stability and vigor, confirm this position. The American militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice.”

A Standing Army Is a Dangerous but Necessary Provision

Madison: “The liberties of Rome proved the final victim to her military triumphs; and that the liberties of Europe, as far as they ever existed, have, with few exceptions, been the price of her military establishments. A standing force … is a dangerous … necessary, provision. On the smallest scale it has its inconveniences. On an extensive scale its consequences may be fatal….

“The Union itself … destroys every pretext for a military establishment which could be dangerous. America united, with a handful of troops, or without a single soldier, exhibits a more forbidding posture to foreign ambition than America disunited, with a hundred thousand veterans ready for combat…. A dangerous establishment can never be necessary or plausible, so long as they continue a united people. But let it never for a moment be forgotten that they are indebted for this advantage to the Union alone. The moment of its dissolution will be the date of a new order of things….

“Next to the effectual establishment of the Union, the best possible precaution against danger from standing armies is a limitation of the term for which revenue may be appropriated to their support. This precaution the Constitution has prudently added.”

Could the President raise an army on his own?

Power Lodged in the Legislature, Not the Executive

Hamilton: “The whole power of raising armies was lodged in the legislature, not in the executive; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected…. There was to be found in respect to this object an important qualification even of the legislative discretion in that clause which forbids the appropriation of money for the support of an army for any longer period than two years — a precaution which upon a nearer view of it will appear to be a great and real security against the keeping up of troops without evident necessity.”

Principle #99 (from Article I.8.13): The people of the states empower the Congress to provide and maintain a navy.

This provision not only gave the Congress the right to set up a navy, but implied a mandate that it should be “provided.”

During the Revolutionary War, Washington lost New York because he had no navy. In fact, until the French arrived with its naval forces, the Continental Army of the United States was at the mercy of the naval blockade which the British maintained along the entire length of the Atlantic seaboard. Franklin helped John Paul Jones launch a tiny flotilla from France (where Franklin was American minister), and by sailing along the northeast coast of England, Captain Jones had the triumph of his life. He lost his own ship but conquered and boarded the Serapis with his own sinking vessel lashed to it.

John Paul Jones gave the U.S. Navy a great tradition, but the role of the Navy in the Revolutionary War was a minor one. The writers of the Constitution were determined that in future wars the U.S. Navy would be one of the foremost bastions of defense.

Principle #100 (from Article I.8.14): The people of the states empower the Congress to make rules and regulations for the governing of the land and naval forces.

This provision gave the Congress the right to dictate the specific rules and regulations under which the land and naval forces of the United States would operate.

This is a very important provision. It has always been fundamental to the American philosophy that the military is subordinate to the civil authorities. The Constitution made the President the commander in chief, but it gave the Congress the power to lay down the regulations and restrictions under which he would be required to operate.

Since the next two clauses have to do with raising up a militia by each of the states, it was important to establish that the federal government is to lay down the rules and regulations by which all military personnel will be governed. This is the only way uniformity of discipline could be maintained when the militias from the various states are brought together as part of the national military forces.

Principle #101 (from Article I.8.15): The people of the states empower the Congress to call forth the state militia when needed to: (1) execute federal laws, (2) suppress insurrections in the states, or (3) repel invasions from abroad.

This provision gave the Congress the right to order up the state militias singly or en masse to accomplish any of the three purposes specified in this provision.

It will be noted that the calling forth of the various state militias is not within the power of the President but must be done by the Congress. Even the Congress is restricted to three situations:

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.

3. To repel invasions by an enemy intent on military conquest or the overthrow of the government.

Here again, both the President (who is not granted authority to call up the militia) and the Congress (which is limited to the circumstances when the militia may be called) are prevented from achieving an armed dictatorship.

Principle #102 (from Article I.8.16): The people of the states empower the Congress to provide for the organizing, arming, and training (disciplining) of the state militia and shall have authority to govern (direct and control) any of the state militia which are called into the service of the United States.

This provision gives the Congress the right to equip, arm, train, and control the state militia whenever any of them are called into the service of the United States.

The militia of a state is actually the official army of the state. It consists of all able-bodied male citizens who are between the ages of eighteen and forty-five and are not already members of the armed forces of the United States. Under the National Defense Act of 1916, the Congress organized the militia of each state into special reserve units of the Army, Navy, and eventually the Coast [page 451] Guard, Marine Corps, and Air Force. These constitute the National Guard or the organized militia of the state. All other men between the ages of eighteen and forty-five inclusive are members of the unorganized militia. They are subject to call by both the governor and the President of the United States if circumstances warrant it.

Here are the answers to some of the questions which were raised during the debate:

In the final analysis, what constitutes the militia of a state?

The State Militia Constitute the Whole People

Mason: “I ask, who are the militia? They consist now of the whole people, except a few public officers.”

Corbin: “Who are the militia? Are we not militia?”

Randolph: “They are the bulwarks of our liberties.

Why should the federal government train and equip state militias?

Congress Must Have Access to Militias Uniformly Trained and Equipped

Wilson: “It is said that Congress should not possess the power of calling out the militia, to execute the laws of the Union, suppress insurrections, and repel invasions; nor the President have the command of them when called out for such purposes.

“I believe any gentlemen, who possess military experience, will inform you that men without a uniformity of arms, accoutrements, and discipline, are no more than a mob in a camp; that, in the field, instead of assisting, they interfere with one another. If a soldier drops his musket, and his companion, unfurnished with one, takes it up, it is of no service, because his cartridges do not fit it. By means of this system, a uniformity of arms and discipline will prevail throughout the United States….

“The militia formed under this system, and trained by several states, will be such a bulwark of internal strength, as to prevent the attacks of foreign enemies.”

Responsibility for Strong State Militia

Is Concurrent Between State and Federal Governments

Nicholas: “The power of arming them is concurrent between the general and state governments; for the power of arming them rested in the state governments before; and although the power be given to the general government, yet it is not given exclusively.”

What if the federal government fails to do so?

The States Are Able to Arm and Train Their Militias

If Congress Neglects to Do So

Randolph: “Should Congress neglect to arm or discipline the militia, the states are fully possessed of the power of doing it; for they are restrained from it by no part of the Constitution.”

What is the primary function of the state militias?

State Militias Necessary to Guarantee Law and Order

Madison: “If resistance should be made to the execution of the laws … it ought to be [page 452] overcome. This could be done only in two ways — either by regular force or by the people. By one or the other it must unquestionably be done. If insurrections should arise, or invasions should take place, the people ought unquestionably to be employed, to suppress and repel them, rather than a standing army. The best way to do these things was to put the militia on a good and sure footing, and enable the government to make use of their services when necessary.”

Is it an abuse of power for the federal government to utilize the state militias?

The States Lose Nothing by Making Their Militia Available to Congress

Madison: “I cannot conceive that this Constitution, by giving the general government the power of arming the militia, takes away from the state governments. The power is concurrent, and not exclusive….

“The states are to have the authority of training the militia according to the congressional discipline; and of governing them at all times when not in the service of the Union. Congress is to govern such part of them as may be employed in the actual service of the United States; and such part only can be subject to martial law.”

Militia Under State Control Until Called Up

Madison: “The state governments might do what they thought proper with the militia, when they are not in the actual service of the United States. They might make use of them to suppress insurrections, quell riots, etc., and call on the general government for the militia of any other state, to aid them, if necessary.”

State Militias Can Be Called Up In Only Three Situations

Nicholas: “Congress is to … provide for calling them forth, to execute the laws of the Union, suppress insurrections, and repel invasions. These powers only amount to this — that they can only call them forth in these three cases, and that they can only govern such part of them as may be in the actual service of the United States. This causes a sufficient security that they will not be under martial law but when in actual service…. The President is to command. But the regulation of the army and navy is given to Congress. Our representatives will be a powerful check here…. We ought to part with the power to use the militia to somebody. To whom? Ought we not to part with it for the general defense? If you give it not to Congress, it may be denied by the states. If you withhold it, you render a standing army absolutely necessary….

“There is a great difference between having the power in three cases, and in all cases. They cannot call them forth for any other purpose than to execute the laws, suppress insurrections, and repel invasions….

“The civil officer is to execute the laws on all occasions; and, if he be resisted, this auxiliary power is given to Congress of calling forth the militia to execute them, when it should be found absolutely necessary…. The President is not to have this power. God forbid we should ever see a public man in this country who should have this power. Congress only are to have the power of calling forth the militia.”

The Militias Constitute an Auxiliary Source of Support

Hamilton: “The militia … ought always to be counted upon as a valuable and powerful auxiliary.”

How can the whole stale be trained?

State Militias Should Be Structured Around a

Select, Well-Trained National Guard

Hamilton: “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….

“Uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority….

“If a well-regulated militia be the most natural defense of a Free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security…. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force…. To render an army unnecessary will be a more certain method of preventing its existence than a thousand prohibitions upon paper….

“The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution…. To oblige the great body of the yeomanry and of the other classes of citizens to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people and a serious public inconvenience and loss…. Little more can reasonably be aimed at with respect to the people at large than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year….

“The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people while there is a large body of citizens, little if at all inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist….

“Where in the name of common sense are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same Feelings, sentiments, habits, and [page 454] interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia and to command its services when necessary, while the particular States are to have the sole and exclusive appointment of the officers? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia.

“Whither would the militia, irritated by being called upon to undertake a distant and distressing expedition for the purpose of riveting the chains of slavery upon a part of their countrymen, direct their course, but to the seat of the tyrants, who had meditated so foolish as well as so wicked a project to crush them in their imagined entrenchments of power, and to make them an example of the just vengeance of an abused and incensed people?

“In times of insurrection, or invasion, it would be natural and proper that the militia of the neighboring State should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition…. This mutual succor is, indeed, a principal end of our political association.”

Principle #103 (from Article I.8.16): The people reserve to the states the power to appoint the officers of their state militia and carry out the training and discipline in each of the states as prescribed by Congress.

This provision gives the states the right to appoint their own officers in the state militia and provide the discipline and training of the militia as prescribed by Congress.

There was great concern among the states lest the federal military authorities use their power to make encroachments on the states and their militia. The Founders were sensitive to this and therefore provided in the Constitution that the states would have exclusive authority to do two things:

1. Appoint their own officers in charge of the militia.

2. Have charge of the training program prescribed by Congress.

It was understood, of course, that if the President called up the state militias in a national crisis, they would serve under superior officers representing the United States military services. However, their own officers would continue to function at their established level of authority under the federal officers appointed by the President as commander in chief.

Principle #104 (from Article I.8.17): The people of the states empower the Congress to have exclusive jurisdiction and lawmaking power over a designated district (not to exceed ten miles square) which shall be the seat of government for the United States.

This provision gives the Congress the right to set up a ten-square-mile restricted area for the seat of government, to be exclusively under the control of Congress.

This clause may have originated from Congress’s unhappy experience of being virtually evicted from Philadelphia in 1783 when members of the Continental Army mobbed them, forcing the Congress to flee to Princeton, Annapolis, Trenton, and finally New York, because local authorities did not adequately protect them. Furthermore, it was felt that the capital should not be in the same city as the capital of a state, or in a large commercial center likely to be heavily populated.

The District of Columbia was selected during Washington’s administration as the nation’s capital. Two bills were introduced which divided the Congress. One bill would have allowed the national government to assume the debts of the various states incurred during the Revolutionary War. States such as Virginia, which had paid off their state debts to a large extent, opposed the federal assumption of delinquent state debts. Why, Virginia asked, should she pay her own debts plus a portion of the debts of others?

At the same time, many of these delinquent states wanted the national capital to be in the north (Philadelphia or New York). Virginia bargained to support the assumption bill (assuming the debts of the states) if the new national capital were placed on the Potomac River. Jefferson, as Secretary of State, undertook to get enough votes from the South to support the assumption bill, while Hamilton, as Secretary of Treasury, rallied votes to put the national capital on the Potomac.

In 1788-89 Maryland ceded to the nation sixty square miles east of the Potomac, and Virginia ceded thirty square miles on the west. In 1846 Congress decided to give the territory on the west back to Virginia. The seat of government was Philadelphia from 1790 to 1800, when it was moved to Washington, D.C.

Here are the questions which the Founders answered during the debates:

What are some of the reasons why the seat of government should be established in some permanent location?

Congress Should Have a Permanent, Secure Location

King: “Said, in reply to the inquiry respecting a federal town, that there was now no place for Congress to reside in, and that it was necessary that they should have a permanent residence, where to establish proper archives, in which they may deposit treaties, state papers, deeds of cession, etc.”

What special advantage would this be to Congress?

Congress Must Not Be Subject to Outrage of Local Citizens

Davis: “Said it was necessary that Congress should have a permanent residence…. He asked, ‘Would Massachusetts, or any other state, wish to give to New York, or the state in which Congress shall sit, the power to influence the proceedings of that body, which was to act for the benefit of the whole, by leaving them liable to the outrage of the citizens of such states?’” 49

A Federal Town Would Protect Congress from Insult

Strong: “Said, every gentleman must think that the erection of a federal town was necessary, wherein Congress might remain protected from insult. A few years ago … Congress had to remove, because they were not protected by the authority of the state in which they were then sitting.”

Cannot this be provided by the individual states?

Individual States Cannot Provide Such Protection

Madison: “How could the general government be guarded from the undue influence of particular states, or from insults, without such exclusive power? If it were at the pleasure of a particular state to control the session and deliberations of Congress, would they be secure from insults, or the influence of such state?”

Individual States Failed to Protect Congress in the Past

Iredell: “What would be the consequence if the seat of the government of the United States, with all the archives of America, was in the power of any one particular state? Would not this be most unsafe and humiliating? Do we not all remember that, in the year 1783, a band of soldiers went and insulted Congress? The sovereignty of the United States was treated with indignity. They applied for protection to the state they resided in, but could obtain none. It is hoped such a disgraceful scene will never happen again; but that, for the future, the national government will be able to protect itself.”

National Legislature Should Not Be Vulnerable

to Pressures of a Host State

Madison: “Without it not only the public authority might be insulted and its proceedings interrupted with impunity, but a dependence of the members of the general government on the State comprehending the seat of the government for protection in the exercise of their duty might bring on the national councils an imputation of awe or influence equally dishonorable to the government and dissatisfactory to the other members of the Confederacy…. The inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them.”

George Washington himself selected the site for Washington, D.C.

John Adams was the first President to set up residence there.

Editorial Note:

Is Washington, D.C., Losing Status As the National Capital?

Between 1775 and 1789 the Congress of the United States tried to find a haven of security in Philadelphia, Baltimore, Philadelphia again, Lancaster, York, Philadelphia again, Princeton, Annapolis, and finally New York. After it was decided that a city should be built on the banks of the Potomac away from any metropolitan center, George Washington himself picked out the site. Congress met in Washington, D.C., for the first time on November 21, 1800 — birthday of the signing of the Mayflower Compact. John Adams was the first President to set up residence in the new capital.

For most of the nation’s history, Congress governed the District of Columbia. However, a strong campaign to “democratize” the nation’s capital finally resulted in a municipal government being set up during the 1960s which elected its own officers independent of Congress and began making its own laws. Before long the city had developed one of the highest crime rates in the nation. One violent riot paralyzed the city’s downtown section for several days.

It was also in 1961 that the Twenty-third Amendment was ratified, which altered the Constitution by allowing the District of Columbia to have three electoral votes for the office of President and Vice President. In 1971, a delegate from the District of Columbia was seated in the House of Representatives. Shortly afterwards, Congress passed a constitutional amendment providing for one representative and two Senators for the District of Columbia, just as though it were another state. This proposed amendment has not been ratified by more than a handful of states, but its promoters are determined to get it ratified if at all possible.

Certainly the residents of the District of Columbia are entitled to exercise their franchise, but this could have been readily accomplished by allowing them to vote with the citizens of Maryland, to which the District of Columbia once belonged.

The residents of the District of Columbia have voted as a bloc each election, and always for candidates and issues looking toward a strong centralization of government.

There is deep concern in many quarters of the nation that Congress has abdicated its responsibility under the Constitution to keep the site of the nation’s capital secure and under the administrative control of the people’s representatives. The original intent was to have the city belong to the nation, not the residents of the District of Columbia.

Principle #105 (from Article I.8.17): The people of the states empower Congress to exercise complete jurisdiction and authority over all lands or facilities purchased within a state, providing it shall be with the consent of the legislature of that state. Such lands shall be used for the “erection of forts, magazines, arsenals, dock yards, and other needful buildings.”

This provision gives the Congress the right to exercise complete jurisdiction over lands or facilities which it has purchased with the consent of the state legislature for the purposes specified.

It would also appear that this provision gives each state the right to assume title to all lands within its boundaries which the federal government is not using for the purposes specified in this section.

But what about new states coming into the Union where most of the territory consists of federal public lands? The Northwest Ordinance of 1787 declared that all new states would come into the Union on a basis of complete equality or equal footing with the original thirteen states. Therefore it was assumed that as soon as a new territory was granted statehood, the people of that state would acquire title to every acre of land other than a very small percentage granted to the federal government for the “erection of forts, magazines, arsenals, dock yards, and other needful buildings.”

But Congress did not allow this to happen. When Ohio was admitted into the Union in 1903, the government retained title to all of the public lands but assured the people that Ohio would acquire jurisdiction as soon as these lands could be sold to help pay off the national debt. This, then, became the established policy for new states:

1. The federal government would retain all ungranted public lands.

2. The government guaranteed that it would dispose of these lands as soon as possible.

3. The new state would acquire jurisdiction over these lands as fast as they were sold to private individuals.

As a result of this policy, all of the states east of the Mississippi, and those included in the Louisiana Purchase, eventually acquired all but a very small percentage of the land lying within their state boundaries.

However, when the territory of the western states was acquired from Mexico, Congress radically digressed from the Constitution by virtually eliminating the sale or disposal of federal lands. The general policy was to permanently retain major portions of each of the western states for purposes not listed in the Constitution. This policy resulted in the government becoming the permanent owner and manager of over 35 percent of the American landmass. At the present time, vast areas within the boundaries of these states are permanently designated as part of the federal domain for national forests, national parks, national monuments, coal and oil reserves, lands leased for profit to ranchers or farmers, and huge tracts of land with valuable resources completely locked up as “wilderness areas.”

Here is the amount of land in each of the western states still held by the federal government:

Arizona 45% New Mexico 35%

California 45% Oregon 52%

Colorado 36% Utah 66%

Idaho 64% Washington 30%

Montana 30% Wyoming 50%

Nevada 87%

The most flagrant example of all, however, is found in the conditions under which Alaska was admitted to the Union in 1959. The people were only allowed to occupy approximately 4 percent of their state.

Of course, the government should have exclusive jurisdiction over those lands acquired for the purposes listed in the Constitution. As Madison stated:

“The public money expended on such places, and the public property deposited in them, require that they should be exempt from the authority of the particular State. Nor would it be proper for the places on which the security of the entire Union may depend to be in any degree dependent on a particular member of it. All objections and scruples are here also obviated by requiring the concurrence of the States concerned in every such establishment.”

It is obvious that the federal government is currently occupying millions of acres within certain states without the concurrence of those states.

Principle #106 (from Article I.8.18): The people of the states empower the Congress to pass any laws which shall be “necessary and proper” to carry out the enumerated powers designated above, or to carry out any other powers vested by this Constitution in the government of the United States, or in any department or offices thereof.

This provision, known as the “elastic clause” or the “necessary and proper clause,” gives the Congress the right to pass any other laws needed to implement the provisions of this Constitution.

The Founders were a little nervous about the “necessary and proper” clause. Nevertheless, they made the following responses to various questions in hopes that there would be no question concerning their intent.

Does this clause add to the powers of Congress?

It Does Not Delegate Additional Powers

Nicholas: “The Constitution had enumerated all the powers which the general government should have, but did not say how they were to be exercised. It therefore, in this clause, tells how they shall be exercised. Does this give any new power? I say not. This clause only enables them to carry into execution the powers given to them, but gives them no additional power.”

This Clause Merely Facilitates Implementation

Wilson: “It is urged, as a general objection to this system, that ‘the powers of Congress are unlimited and undefined, and that they will be the judges, in all cases, of what is necessary and proper for them to do.’ To bring this subject to your view, I need do no more than point to the words in the Constitution, beginning at the 8th section, article I. ‘The Congress (it says) shall have power,’ etc. I need not read over the words, but I leave it to every gentleman to say whether the powers are not as accurately and minutely defined, as can be well done on the same subject, in the same language…. The concluding clause, with which so much fault has been found, gives no more or other powers; nor does it, in any degree, go beyond the particular enumeration; for, when it is said that Congress shall have power to make all laws which shall be necessary and proper, those words are limited and defined by the following, ‘for carrying into execution the foregoing powers.’ It is saying no more than that the powers we have already particularly given, shall be effectually carried into execution.”

What limits the powers of Congress so this clause will not be misinterpreted?

Authority of Congress Limited to the Enumerated Powers

Madison: “[This clause] only extended to the enumerated powers. Should Congress attempt to extend it to any power not enumerated, it would not be warranted by the clause.”

Enumerating Powers Prohibits Congress from Assuming Others

MacLaine: “The powers of Congress are limited and enumerated. We say we have given them those powers, but we do not say we have given them more. We retain all those rights which we have not given away to the general government…. If they can assume powers not enumerated, there was no occasion for enumerating any powers … if we had all power before, and give away but a part, we still retain the rest. It is as plain a thing as possibly can be, that Congress can have no power but what we expressly give them. There is an express clause which, however, disingenuously it has been perverted from its true meaning, clearly demonstrates that they are confined to those powers which are given them. This clause enables them to … make laws to carry into execution all the powers vested by this Constitution; consequently, they can make no laws to execute any other power. This clause gives no new power, but declares that those already given are to be executed by proper laws.”

This Clause Must Be Used Only to Execute One of the Enumerated Powers

Pendleton: “I understand that clause as not going a single step beyond the delegated powers. What can it act upon? From power given by this Constitution. If they should be about to pass a law in consequence of this clause, they must pursue some of the delegated powers, but can by no means depart from them, or arrogate any new powers, but can by no means depart from them, or arrogate any new powers; for the plain language of the clause is, to give them power to pass laws in order to give effect to the delegated powers.”

Why is this clause even necessary?

This Clause Necessary to Make Enumerated Powers Effectual

Wilson: “Sir, I think there is another subject with regard to which this Constitution deserves approbation. I mean the accuracy with which the line is drawn between the powers of the general government and those of the particular state governments…. But it is not pretended that the line is drawn with mathematical precision; the inaccuracy of language must, to a certain degree, prevent the accomplishment of such a desire. Whoever views the matter in a true light, will see that the powers are as minutely enumerated and defined as was possible, and will also discover that the general clause, against which so much exception is taken, is nothing more than what was necessary to render effectual the particular powers that are granted.”

It Is a Question of Means

Wilson: “It is meant that they shall have the power of carrying into effect the laws which they shall make under the powers vested in them by this Constitution.”

Powers to Act Must Be Commensurate with Responsibility Assigned

Hamilton: “Shall the Union be constituted the guardian of the common safety? Are fleets and armies and revenues necessary to this purpose? The government of the Union must be empowered to pass all laws, and to make all regulations which have relation to them. The same must be the case in respect to commerce, and to every other matter to which its jurisdiction is permitted to extend…. Not to confer in each case a degree of power commensurate to the end would be to violate the most obvious rules of prudence and propriety, and improvidently to trust the great interests of the nation to hands which are disabled from managing them with vigor and success…. It is both unwise and dangerous to deny the federal government an unconfined authority in respect to all those objects which are intrusted to its management…. The powers are not too extensive for the objects of federal administration, or, in other words, for the management of our national interests.”

Congress Must Have This Authority

Hamilton: “What is a power but the ability or faculty of doing a thing? What is the ability to do a thing but the power of employing the means necessary to its execution? What is a legislative power but a power of making laws? What are the means to execute a legislative power but laws? What is the power of laying and collecting taxes but a legislative power, or a power of making laws to lay and collect taxes? What the proper means of executing such a power but necessary and proper laws? …

“It conducts us to this palpable truth that a power to lay and collect taxes must be a power to pass all laws necessary and proper for the execution of that power…. The national legislature to whom the power of laying and collecting taxes had been previously given might, in the execution of that power, pass all laws necessary and proper to carry it into effect…. The [page 462] same process will lead to the same result in relation to all other powers declared in the Constitution. And it is expressly to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all necessary and proper laws. If there is anything exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated….

“But it may be again asked, ‘Who is to judge of the necessity and propriety of the laws to be passed for executing the powers of the Union?’ The national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded.”

Without This Clause the Constitution Is a Dead Letter

Madison: “Without the substance of this power, the whole Constitution would be a dead letter….

“Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the Constitution relates….

“No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included….

“If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution and exercise powers not warranted by its true means, I answer the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of them were to be violated…. In the last resort a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers. These [candidates for office] will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives.”

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