The Armies Clause

The Congress shall have Power . . . To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years. . . .

—Judge Gregory E. Maggs & Robert Leider

Introduction

Because many in the Framing generation feared that a standing army could lead to domestic tyranny, the power to raise an army was among the most controversial military provisions of the Constitution. To address this concern, the Framers established a militia separate from the standing army, with its officer corps appointed by states, and gave Congress the power to make the militia uniform and effective by providing for its organizing, arming, disciplining, and calling forth. Over time, many members of Congress became dissatisfied with how the Constitution limited federal power over the militia. Ultimately, the federal government settled on using Congress’s plenary power under the Armies Clause to raise all forms of land forces. Congress’s efforts to consolidate the militia into the army, however, have raised difficult constitutional questions. For example, is conscription into the national army constitutional, and can the federal government exercise near-plenary control over land forces such as the Army Reserve, whose members are civilian nonprofessional soldiers?

History Before 1787

From the Norman Conquest to the seventeenth century, English armies were temporary institutions.¹ Armies were raised for specific conflicts, after which they were disbanded. Beginning around 1660, however, Britain began to keep a standing army—a substantial permanent corps of soldiers that continued to exist in peacetime.² In a temporary army, soldiers often served for the duration of a specific conflict; soldiers in a standing army enlisted for long periods, essentially making military service their career.³

British political thought traditionally shunned standing armies, which were thought to be dangerous to civil liberty and limited government. Professional soldiers constituted their own special-interest faction in society.⁴ They lived under military law and lacked the civil liberty and common-law rights of English subjects. They were also armed and capable of acting against the civil government or against the population that they were supposed to protect. Many people feared that such an unrepresentative armed faction of society might overthrow the government or be used by an executive officer to oppress the population.⁵

Despite these fears, Britain gradually accepted the need for a standing army. For much of English history, the keeping of a standing army was thought to be unconstitutional.⁶ However, the British constitution is conventional, not binding legally, so Parliament could still authorize the keeping of a standing army by statute—which is what Parliament ultimately did. Beginning in the late seventeenth century, Parliament reauthorized the standing army annually through the Mutiny Act.⁷

England did not recognize any general obligation of inhabitants to perform military service in the army,⁸ but inhabitants did have a general duty to bear arms to perform defensive military service, exercised through the militia and its predecessor institutions. Impressment into the army “was normally illegal” and during the rare times it occurred fell only upon marginalized groups, such as criminals and the poor.⁹ The “cherished principle”¹⁰ of raising a British army was that “every soldier was supposed to be a volunteer.”¹¹

In the seventeenth and early eighteenth centuries, the British did not station any significant numbers of troops in the American colonies, but this changed in the 1750s during the French and Indian War. At the conclusion of that war, the British kept a permanent military presence in the colonies.¹² The British government imposed taxes to provide for these troops and quartered them in private homes. Colonials resented both the troops and the means of providing for them. Resistance to taxation and quartering became major contributing causes of the American Revolution.¹³

Once war broke out between the United States and Britain, Americans raised their own regular forces—the Continental Army. On June 14, 1775, the Continental Congress authorized the raising of regular forces at national expense.¹⁴ During the war, Congress appointed senior officers and governed the forces directly, often through various committees.¹⁵

Under the Articles of Confederation, ratified in 1781, Congress had the power to raise and support an army, but it had to rely on the states to exercise this power. The Articles provided that “A Committee of the States” consisting of one delegate from each state would have to “agree upon the number of land forces” needed and then “make requisitions [requests for money] from each state for its quota, in proportion to the number of white inhabitants in such state.”¹⁶ Each state then would “appoint the regimental officers, raise the men, and clothe, arm, and equip them, in a soldierlike manner,” all “at the expense of the united states.” Thereafter, “the officers and men so clothed, armed, and equipped” would “march to the place appointed, and within the time agreed on by” Congress.

These powers left Congress without adequate military authority. Making the states responsible for raising regular forces permitted them to obstruct Congress.¹⁷ During the Revolution, the United States frequently lacked sufficient numbers of regular soldiers in the field.¹⁸ Moreover, Congress had difficulty paying and supplying the troops.¹⁹

As the war ended, the army began to mutiny. The most serious incident occurred in March 1783 when frustrated army officers, backed by public creditors and some nationalist political figures, threatened to march on Congress.²⁰ An anonymous officer at the army’s camp in Newburgh, New York, circulated a letter calling for the officers to meet and plot their actions against Congress—a plan that may have included overthrowing the government.²¹ General George Washington, Commander in Chief of the Continental Army, caught wind of the plot. He attended the officers’ meeting and, through sheer force of personality, defused the conspiracy in a famous address to his officers.²² This episode reinforced the dangers that regular forces posed to civilian control of the government and, according to military historian Richard H. Kohn, “was the closest an American army has ever come to revolt or coup d’etat.”²³

Following the conclusion of the Revolution in September 1783, Congress largely disbanded the army, leaving it with a residual force of “eighty men and a few officers”²⁴ that was not enough to provide for national defense or respond to domestic turmoil. Shays’s Rebellion in 1786, during which “the Confederation proved unable to protect its own arsenal” at Springfield, Massachusetts, reinforced the appearance of military weakness.²⁵ Nor did the standing army have a firm legal basis. Once peace with Britain was concluded, the Framing generation repeatedly debated whether the Articles conferred upon Congress the power to keep a standing army in peacetime.²⁶ The need to strengthen national military power was a major motivating force behind calls for the Constitutional Convention.

The Constitutional Convention

At the Constitutional Convention, there was broad agreement on the need for professional troops. The Committee of Detail originated what would become the Armies Clause. The draft text provided that Congress shall have the power “[t]o make war (and) raise armies. (& equip Fleets.).”²⁷ From here, the Convention split into two main camps.

The first camp wanted a strong professional army based on the European model. One-third of the delegates were veterans of the Revolutionary War, and they understood the advantage of having trained professionals conduct war.²⁸ Many Framers had been troubled by the recurring congressional debates about whether Congress could maintain a standing army under the Articles of Confederation. They wished the controversy would conclude in favor of national power.²⁹ The second camp generally feared a standing army. They grudgingly acknowledged its necessity in some cases, such as manning garrisons and guarding the frontier, but sought various restrictions, including limiting the size of the army during peacetime.³⁰

At the Convention, the first camp prevailed. The Convention expanded the power to “raise armies” into the power to “raise and support Armies.”³¹ The delegates also rejected all substantive restrictions on Congress’s power, such as limiting the army’s size.³² The Constitution thus spoke of Congress’s power to raise regular forces in the broadest terms. The only significant limitation was that “no Appropriation of Money to that Use shall be for a longer Term than two Years.” This prevented Congress from establishing a perpetual standing army.

Here, the Framers loosely followed the British tradition. The Mutiny Act would remain valid only for one year, and by reauthorizing it, Parliament provided its ongoing consent for the standing army. Similarly, each new Congress would need to consent to the continued existence of the American army by funding the troops. If Congress did nothing, the army would cease to exist for lack of funding.³³ The Framers selected a two-year window because Congress was elected every two years and might not have a session each year.³⁴

The Ratification Debates

During the ratification debates, the Anti-Federalists objected to Congress’s unlimited power to create a standing army. These objections followed traditional British Whiggish political theory.³⁵ The Anti-Federalists complained that the creation of an army would lead to domestic tyranny because government officials could use the army to enforce domestic law by force rather than by consent.³⁶ The Anti-Federalists also recognized that a standing army would be expensive to maintain and feared that burdensome taxation and invasive search and seizure policies might be necessary to support the forces.³⁷ Finally, the Anti-Federalists emphasized the complete lack of limits on Congress’s authority to keep standing forces. There were no limits on the number of troops and no substantive limits on Congress’s power. Patrick Henry observed that “the quartering of troops upon us . . . was one of the principal reasons for dissolving the connection with Great Britain.” Yet under the Constitution, “we may have troops in time of peace” who “may be billeted in any manner—to tyrannize, oppress, and crush us.”³⁸

Anti-Federalists sought several amendments to limit Congress’s power to keep a standing army, including by requiring Congress to have a supermajority to authorize a standing army.³⁹ They also sought declarations that “standing armies in time of peace are dangerous to liberty.”⁴⁰

The Federalists offered several defenses of Congress’s power. In Federalist No. 25, Alexander Hamilton noted that regular forces were militarily superior to the militia because “[w]ar, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice.” In the Virginia ratifying convention, George Nicholas questioned the adequacy of “men unacquainted with the hardships, and unskilled in the discipline of war.”⁴¹

Federalists used the expense of armies to their rhetorical advantage. Because professional forces were expensive, the American army would also be naturally limited in size. They argued that Congress could not raise enough revenue to have a large standing army.⁴² In Federalist No. 26, Hamilton stressed that the two-year appropriation restriction ensured that Congress could not “vest in the executive department permanent funds for the support of an army.” Rather, Congress must “once at least in every two years . . . deliberate upon the propriety of keeping a military force on foot,” “come to a new resolution on the point,” and “declare their sense of the matter, by a formal vote in the face of their constituents.”

The Federalists also emphasized the democratic checks on the power to raise armies. In England, the Crown had the power to raise armies and declare war. However, as Hamilton pointed out in Federalist No. 24, the Constitution assigned those powers to the legislature, “a popular body, consisting of the representatives of the people.” Finally, as Madison noted in Federalist No. 46, the American people possessed their own arms, making it unlikely that the standing army could be deployed against the civilian population to usurp the government or oppress the population.

The Bill of Rights

The Constitution was ratified in 1788. During the First Congress, two constitutional amendments were proposed that concerned the dangers created by standing armies. The Second Amendment secured a general individual right to bear arms, thereby preventing Congress from investing a standing army with a monopoly of the means of force. (See Essay No. 164.) However, the amendment did not limit Congress’s power to raise an army or include any language opposing the idea of a standing army. Instead, Anti-Federalists secured only the milder declaration that “[a] well regulated Militia” is “necessary to the security of a free State.”

In addition, the Third Amendment prevented Congress from quartering troops in private homes without consent in peacetime. (See Essay No. 165.) This amendment relieved homeowners of the financial obligation of subsidizing the housing for regular forces. It also prevented the government from quartering troops in private homes to intimidate the civilian population.⁴³

The Provisional Army During the Quasi-War with France

The Constitution does not define the difference between an “army” and a “militia.” Yet the distinction between them is critical because the Constitution creates separate regulatory regimes for these two types of land forces. The Armies Clause gives the federal government plenary authority over the armies of the United States. It stands in contrast to the Militia Clauses, which divided control of the militia between the federal and state governments and limited the ability of the federal government to call forth the militia to domestic defensive conflicts. (See Essay Nos. 62, 63, and 103.)

During the Quasi-War with France, Congress began to raise land forces through the Army Clause instead of the Militia Clauses. In 1799, Federalists in Congress authorized the President to create a provisional army, and part of that law authorized the President to accept individuals and associations that volunteered for service.⁴⁴ The President, not the states, would appoint the officers for the volunteers.

The law occasioned great debate in Congress about whether Congress had the power to create the provisional army. The Federalists argued that the Armies Clause authorized Congress to create it. The Democratic-Republicans countered that the provisional army was an unconstitutionally organized militia.⁴⁵

As part of this debate, Federalists and Democratic-Republicans clashed on how to distinguish an “army” from a “militia.” The Federalists argued that army soldiers were volunteers and militiamen were conscripts. Because the provisional army comprised volunteers, Federalists contended that it was an “army.” The Democratic-Republicans had a different conception: The militia were part-time forces unlike armies, which consisted of regular forces. Because the provisional army comprised nonprofessional soldiers, the Democratic-Republicans argued that it was a militia, and this militia was unconstitutionally organized because the federal government would appoint the officers and could call forth the units for purposes outside those enumerated in the Constitution.⁴⁶

Early nineteenth-century legal commentators were also divided on the status of war volunteers. In 1803, St. George Tucker wrote that the provisional army was an unconstitutional militia.⁴⁷ But in 1825, Justice Joseph Story suggested that a national consensus had emerged to consider the volunteer soldiers to be part of the national army.⁴⁸

The Constitutionality of Conscription

The army/militia distinction is also relevant to the constitutionality of conscription. The efforts toward national conscription were prompted by constitutional limits on the militia that federal policymakers often found intolerable. The Constitution federalized the militia, and during wartime, the federal government had difficulty working through the states to secure necessary forces. Moreover, the Constitution limited the authority of the federal government to call forth the militia to domestic defensive conflicts. Particularly in the twentieth century, the federal government wanted to be able to conscript soldiers for offensive and overseas operations that fell outside its authority to call forth the militia.⁴⁹

The United States first experimented with conscription during the Civil War and enacted its first workable system of conscription during World War I.⁵⁰ Conscription gave the federal government the power to call forth the entire able-bodied manpower of the country, but because the Armies Clause gives Congress plenary power to raise, govern, and deploy armies, conscription permitted Congress to raise this military manpower without the legal restrictions on militia service. These efforts to evade the Militia Clauses using national conscription prompted constitutional challenges on the theory that it constituted an unconstitutional calling forth of the militia.

Debates over the constitutionality of conscription look both to linguistic interpretation and to construction across the document as a whole. These methods of interpretation point in different directions. Linguistically, the power to “raise” armies could include the power to compel service in the army, but looking across provisions, the Constitution limits the federal government’s authority to call forth and govern the militia. Those limits do not have much substance if Congress may avoid them simply by drafting citizens into the army.⁵¹ Challengers to conscription have also relied on history, noting that England did not recognize any general obligation of inhabitants to perform military service in the army.⁵²

The courts have generally upheld conscription laws against these constitutional challenges. During the Civil War, state courts generally upheld conscription, both under the U.S. Constitution and under analogous provisions of the Confederate Constitution.⁵³ There were, however, strong opinions from judges arguing that conscription was unconstitutional.⁵⁴

Judicial Precedent

In 1918, the U.S. Supreme Court unanimously upheld the constitutionality of conscription during World War I.⁵⁵ The Selective Draft Law Cases (1918) treated Congress’s power to raise armies as an authority additional to and separate from its power to organize the militia. The decision grounded conscription in the power to raise armies, the power to declare war, and the Fourteenth Amendment’s primacy of national citizenship.

The Court has described Congress’s power to raise armies in broad terms but has never explored its limits. During the Vietnam War, lower courts expanded the holding in the Selective Draft Law Cases by upholding the constitutionality of conscription without a declared war. The Supreme Court did not grant certiorari to decide whether those decisions were correct.⁵⁶

The courts have broadly deferred to congressional power over the composition and means of raising the army. Rostker v. Goldberg (1981) rejected challenges to male-only draft registration.⁵⁷ In 2021, three Justices suggested that the male-only draft may be a form of unconstitutional sex discrimination.⁵⁸ The Supreme Court has also upheld a requirement that universities accepting federal funds must make their campuses available for military recruiting.⁵⁹

Open Questions

• In the early twentieth century, Congress created organized reserve forces for the armed forces, including the Army Reserve. These reserve forces are composed of nonprofessional, volunteer citizen-soldiers. They generally train a minimum of one weekend a month and two weeks a year. Are reserve forces part of the constitutional armies or an unconstitutional national militia? This answer may depend on the 1790s debate between the Federalists and Democratic-Republicans. Is the correct distinction between armies and militia whether the troops are volunteers or conscripted, or is it whether the soldiers are full-time or part-time troops?
• Is there tension between a legal theory upholding the constitutionality of conscription and a legal theory upholding the constitutionality of military reserve forces? The Federalists contended that the correct distinction turned on whether the force has volunteer soldiers. If the Federalists were correct, does this mean that civilians drafted by the Selective Service System are actually militiamen, not regular forces? If the Democratic-Republicans were correct that the army/militia distinction was between full-time and part-time troops, are the reserve forces constitutional?
• Under either view, could Congress authorize conscription into the Reserves?

1. Michael Prestwich, The English Medieval Army to 1485, in The Oxford History of the British Army 1, 11 (David Chandler & Ian Beckett eds., 1996). ↩︎
2. Correlli Barnett, Britain and Her Army 1509–1970: A Military, Political and Social Survey 115 (1970). ↩︎
3. H.C.B. Rogers, The British Army of the Eighteenth Century 59 (1977). ↩︎
4. David C. Williams, The Mythic Meanings of the Second Amendment 26–28 (2003). ↩︎
5. Id.; Letter from Samuel Adams to James Warren (1776), https://perma.cc/U27E-N5XS; Simeon Howard, A Sermon Preached to the Ancient and Honorable Artillery Company in Boston, in 1 American Political Writing During the Founding Era 1760–1805, at 199 (Charles S. Hyneman & Donald S. Lutz eds., 1983). ↩︎
6. John Phillip Reid, In Defiance of the Law: The Standing-Army Controversy, the Two Constitutions, and the Coming of the American Revolution 6–7 (1981). ↩︎
7. Id. at 6–9. ↩︎
8. Prestwich, supra at 15. ↩︎
9. Barnett, supra at 140. ↩︎
10. Id. at 397. ↩︎
11. Alan J. Guy, The Army of the Georges 1714–1783, in The Oxford History of the British Army, at 92, 97. ↩︎
12. Reid, supra at 10. ↩︎
13. Id. at 67–69. ↩︎
14. Russell F. Weigley, A History of the United States Army 29 (1984). ↩︎
15. Id. at 30, 45–46. ↩︎
16. Articles of Confederation, art. IX, § 5. ↩︎
17. 3 Story’s Commentaries § 1178. ↩︎
18. John K. Mahon, History of the Militia and the National Guard 44 (1983). ↩︎
19. Richard H. Kohn, Eagle and Sword: The Federalists and the Creation of the Military Establishment in America, 1783–1802, at 19 (1975). ↩︎
20. Id. at 25, 29. ↩︎
21. Id. at 29–30. ↩︎
22. Id. at 30–32. ↩︎
23. Id. at 17. ↩︎
24. Allan R. Millett & Peter Maslowski, For the Common Defense: A Military History of the United States of America 86 (1984); Weigley, supra at 81. ↩︎
25. Weigley, supra at 84. ↩︎
26. 1 Farrand’s 287; Kohn, supra at 77. ↩︎
27. 2 Farrand’s 143. ↩︎
28. Kohn, supra at 77. ↩︎
29. Id. ↩︎
30. 2 Farrand’s 323, 329–30, 633. ↩︎
31. Id. at 329 (emphasis added); Kohn, at 77. ↩︎
32. 2 Farrand’s 329–30. ↩︎
33. Kohn, supra at 78. ↩︎
34. 2 Farrand’s 509. ↩︎
35. Reid, supra at 4. ↩︎
36. 10 DHRC 1270–71, 1494. ↩︎
37. 2 DHRC 639. ↩︎
38. 3 Elliot’s 411. ↩︎
39. 22 DHRC 2088; 30 DHRC 27. ↩︎
40. Storing 2.7.55, 2.9.126. ↩︎
41. 3 Elliot’s 389. ↩︎
42. Federalist No. 46 (Madison); Federalist No. 28 (Hamilton). ↩︎
43. William Rawle, A View of the Constitution of the United States of America 123 (1825). ↩︎
44. An Act authorizing the President of the United States to raise a Provisional Army, ch. 47, § 1, 1 Stat. 558, 558 (1798). ↩︎
45. 1 David P. Currie, The Constitution in Congress: The Federalist Period 1789–1801, 248–50 (1997). ↩︎
46. 8 Annals of Cong. 1704–06, 1725–26, 1730, 1733, 1759–60, 1765 (1798). ↩︎
47. 1 St. George Tucker, Blackstone’s Commentaries with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia app. D at 311 (1803). ↩︎
48. 3 Story’s Commentaries § 1187. ↩︎
49. Robert Leider, Deciphering the “Armed Forces of the United States,” 57 Wake Forest L. Rev. 1195, 1228–34 (2022). ↩︎
50. An Act for Enrolling and Calling Out the National Forces, and for Other Purposes, ch. 75, § 1, 12 Stat. 731, 731 (1863); An Act to Authorize the President to Increase Temporarily the Military Establishment of the United States, Pub. L. No. 65-12, § 2, 40 Stat. 76, 77–78 (1917). ↩︎
51. Leon Friedman, Conscription and the Constitution: The Original Understanding, 67 Mich. L. Rev. 1493, 1497–98 (1969); Robert Leider, Federalism and the Military Power of the United States, 73 Vand. L. Rev. 989, 1037–50 (2020). ↩︎
52. Prestwich, supra at 15. ↩︎
53. Ex parte Hill, 38 Ala. 429, 433–44 (1863); Jeffers v. Fair, 33 Ga. 347, 349–50 (1862); Parker v. Kaughman, 34 Ga. 136, 142–43 (1865); Simmons v. Miller, 40 Miss. 19, 22–24 (1864); Gatlin v. Walton, 60 N.C. 325, 331–34 (1864); Ex parte Coupland, 26 Tex. 386, 392–94 (1862); Burroughs v. Peyton, 57 Va. (16 Gratt.) 470, 473–78 (1864). ↩︎
54. Kneedler v. Lane, 45 Pa. 238 (1863). ↩︎
55. Arver v. United States (Selective Draft Law Cases), 245 U.S. 366, 376–78 (1918). ↩︎
56. Holmes v. United States, 391 U.S. 936, 936 (1968); id. at 936–49 (Douglas, J., dissenting); Hamilton v. Regents of the Univ. of Cal., 293 U.S. 245, 265–66 (1934) (Cardozo, J., concurring). ↩︎
57. Rostker v. Goldberg, 453 U.S. 57 (1981). ↩︎
58. Nat’l Coal. for Men v. Selective Serv. Sys., 141 S.Ct. 1815 (2021) (Sotomayor, J., statement respecting the denial of certiorari). ↩︎
59. Rumsfeld v. Forum for Acad. & Institutional Rts., Inc., 547 U.S. 47 (2006). ↩︎