The Calling Forth the Militia Clause

The Congress shall have Power . . . To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions. . . .

—Judge Gregory E. Maggs & Robert Leider

Introduction

On certain occasions, Anglo–American law has recognized that able-bodied civilians may be required to perform military service. Those able-bodied civilians are referred to collectively as the militia. The power to call forth the militia was the power to summon all or part of the able-bodied manpower of the civilian community for emergency military purposes. The power to call forth the militia into federal service was the clearest expression of federal power to conscript citizens for military purposes in land warfare. If the Armies Clause does not support conscription into the Army, the calling-forth power might be the exclusive method for conscription.

History Before 1787

Until the seventeenth century, England saw no need to maintain a standing army, and the English viewed such an institution as dangerous to civil liberty. Because of its geographic separation from Europe, England relied primarily on its navy for defense.¹ When land forces were needed for specific conflicts abroad, the Crown raised temporary armies, and when war came to England, the Crown could either raise temporary armies or call upon the able-bodied citizenry (the militia) to come to the realm’s defense.

The English disliked mandatory military service and largely resisted it. Under traditional international law, war could be classified as either defensive or offensive.² England did not recognize a general duty to perform military service in offensive wars. Instead, it recognized only a more limited duty to perform defensive military service.³ Over the succeeding centuries, Parliament enacted various preventative statutes that prohibited the Crown from calling militiamen outside their counties of residence except in cases of invasion and rebellion.⁴

Similar legal rules applied in England’s colonies in America. Service in the militia was generally limited to defensive service within a person’s colony.⁵ The colonies also frequently limited active service to three months at a time. If the colonies wanted a person to serve a longer period—or if they wanted to send the person on an expedition or offensive operation outside the colony—they had to seek war volunteers.

The result was two tracks of military land service. First, Army service under enlistment contracts was not restricted. Professional soldiers could be used in defensive or offensive wars and could serve at home or abroad. Second, militiamen were liable to serve only in defensive conflicts, and their service was restricted to Britain or, in America, to their colony.

After the Declaration of Independence, the states quickly established their own constitutions, most of which contained clauses that served as predecessors of the U.S. Constitution’s Calling Forth the Militia Clause. Under these constitutions, however, the governor typically had the power to call forth the militia, but some states restricted the governor’s ability to embody the militia or send them out of state without the consent of the legislature or a privy council. For example, the Delaware Constitution of 1776 provided that “[t]he president, with the advice and consent of the privy council, may embody the militia.”⁶

The Articles of Confederation did not empower Congress by itself to call forth the militia, but they did provide that “every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accounted.”⁷ The Articles further allowed Congress “to make requisitions from each state for its quota” of troops for the Continental Army.⁸

The Constitutional Convention

During the Constitutional Convention, delegates debated about when the federal government should be allowed to call forth the militia and against whom. An early proposal authorized the federal government “to call forth the force of the Union agst. any member of the Union failing to fulfill its duty under the articles thereof.”⁹ James Madison of Virginia thought the provision should operate against individuals, not states, because “the use of force agst. a State would look more like a declaration of war, than an infliction of punishment.”¹⁰ Elbridge Gerry of Massachusetts additionally expressed concern that “this clause ‘ought to be expressed so as the people might not understand it to prevent their being alarmed.’”¹¹

Eventually, the Committee on Detail listed, among Congress’s enumerated powers, “to (make laws for) call(ing) forth the Aid of the Militia, in order to execute the Laws of the Union, (to) enforce Treaties, (to) suppress Insurrections, and repel invasions.”¹² The Convention struck the part about enforcing treaties as duplicative of enforcing federal laws.¹³ So amended, the provision was agreed to without dissent.¹⁴

The Ratification Debates

Debates were more heated in the state ratifying conventions. These debates fell into three categories: the circumstances that would justify deploying the militia, what restrictions should be placed on federal exercise of the power, and the role of the states.

The militia could be used to fight both foreign and domestic enemies. With respect to foreign enemies, there was no significant debate in the state ratifying conventions about the propriety of using the militia to repel invasions. Domestic use of the militia, however, was more controversial.

At the Virginia ratifying convention, Anti-Federalists objected to allowing the federal government to use the militia for law enforcement. Contemporary political thought believed that obedience to the laws should generally be secured by consent, not by force.¹⁵ Patrick Henry feared that allowing the federal government to use the militia (a military force) as the routine method of law enforcement would allow the implementation of oppressive and unconstitutional laws.¹⁶ Moreover, the Constitution did not explicitly provide for civil officers to enforce the law. Madison responded that the clause provided Congress with the power to use the militia when necessary but that, in the ordinary course, the authority to use the militia would not displace civil officers as the principal means of law enforcement. Madison also argued that when resistance overwhelmed civilian authorities, it was better for the militia, a civilian army representative of the people, to enforce the laws than for a standing army of professional soldiers to do so.¹⁷

The Anti-Federalists were also afraid that Congress might abuse its power to call forth the militia—for example, by marching the militia of Georgia into the New England states.¹⁸ George Mason particularly feared that the federal government might intentionally make militia duty so burdensome that the citizenry would appeal to Congress to raise a large standing army so that they would not have to perform military service.¹⁹ Consequently, Anti-Federalists sought various limitations on this federal power.

When it came to state power, two major issues arose. First, Anti-Federalists sought to interject state governments into the process of calling forth the militia by requiring some form of state-level consent.²⁰ Second, Anti-Federalists sought assurances that the power to call forth the militia was not exclusive in Congress and that states could still use their militia forces for domestic law enforcement or to suppress insurrections.²¹ The Anti-Federalists proposed various amendments to address their objections. As Justice Joseph Story would observe, these amendments “were never duly ratified, and have long since ceased to be felt, as matters of general concern.”22 Story apparently did not think that the Second Amendment principally addressed these concerns.²² (See Essay No. 164.)

Early Practice

Academics have long debated about whether the President’s commander in chief power includes the power to deploy regular forces without Congress’s advance consent. (See Essay Nos. 102 and 103.) For the militia, however, the Constitution explicitly grants deployment power to Congress. Initially, Congress exercised the power directly on a case-by-case basis. In 1789, for example, Congress authorized the President to call forth the militia only during that session “for the purpose of protecting the inhabitants of the frontiers of the United States from the hostile incursions of the Indians.”²³

Beginning in 1792, Congress enacted a broad delegation to the President to use the militia for the reasons enumerated in the Constitution. During the congressional debates, the breadth of Congress’s delegation to the President created some controversy.²⁴ In case of invasion, Congress authorized the President “to call forth such number of the militia” as he thought necessary.²⁵ To respond to insurrections against a state, Congress authorized the President to call forth the militia of other states.²⁶ And for law enforcement, Congress authorized the President to call forth the militia of the state where the obstruction of the laws was occurring and, if that was insufficient, to call forth the militia of other states.²⁷

Congress also imposed significant limitations on the President’s authority. When calling forth the militia to repel an invasion, the President would have to call forth the militia “of the state or states most convenient to the place of danger or scene of action.”²⁸ And before the President could use the militia for domestic law enforcement, he would have to be notified by a judge that the resistance was “too powerful to be suppressed by the ordinary course of judicial proceedings.”²⁹ Thus, in providing for calling forth the militia by statute, Congress addressed earlier Anti-Federalist objections that Congress might march the militia long distances or use the militia as the routine means of enforcing the laws.

Conflicts Between The States and Federal Government

The militia was split between the national and state governments, and this duality has caused significant problems. During the War of 1812, Federalist governors in Connecticut and Massachusetts opposed the war and refused the President’s call to deploy their militias. The Massachusetts Supreme Judicial Court ruled that state commanders in chief could determine whether an imminent emergency existed that was sufficient to justify deploying the militia.³⁰ The states, moreover, refused to place their militia forces under the command of regular army officers.32 Some militia units refused to pursue the British into Canada, believing that this would be an unconstitutional use of the militia to invade another country.³¹

State interference in national military affairs met strong objections from the federal government. At the conclusion of the War of 1812, Secretary of War James Monroe sent a letter to the Senate rebuking the obstructionist actions of the Federalist governors in New England.³² Justice Joseph Story later noted that if the Massachusetts court’s opinion were correct, “the public service must be continually liable to very great embarrassments.”³³ Martin v. Mott (1827) held that Congress gave the President sole and unreviewable authority to determine when an emergency exists that is sufficient to justify deploying the militia.³⁴

Purposes of the Militia

In 1912, Attorney General George W. Wickersham opined that Congress could authorize use of the militia only for the three enumerated purposes: to enforce the laws, suppress insurrections, and repel invasions.³⁵ This position has become the general legal consensus. The militia might be sent outside the country incidental to repelling an invasion, but it could not be used offensively.³⁶ However, the consensus has seen occasional dissent. During the War of 1812, some Congressmen argued that Congress could deploy the militia abroad for offensive purposes incidental to its power to declare war.³⁷

In the twentieth century, use of the Armies Clause rendered these legal disputes largely moot.³⁸ (See Essay No. 59.) Congress can now conscript the body of the militia into the Army using the Selective Service System and has effectively required the organized militia of the states (the state Army National Guard forces) to enroll in the Army. By using the Armies Clause, Congress has assumed the power to deploy nonprofessional soldiers abroad for offensive operations, rendering these limitations on the militia effectively nugatory. In addition, because officers and soldiers of the organized militia are also enrolled in the Army, Congress can exercise direct authority over them in their capacity as Army soldiers, bypassing state governmental officers when necessary.

Open Questions

• Although the Constitution expressly permits the federal government to use the militia for domestic law enforcement, it is silent with respect to whether the federal government may use the regular Army and Navy for the same domestic purposes.
• The Supreme Court has never determined the upper limits of Congress’s authority to delegate to the President the power to call out the militia.
• It has not been authoritatively determined when Congress has the power to order the militia abroad incidental to fighting a defensive war.

1. Ian Beckett, The Amateur Military Tradition, in The Oxford History of the British Army 385 (David Chandler & Ian Beckett eds., 1996). ↩︎
2. E. de Vattel, The Law of Nations 471, 187–91 (Bela Kapossy & Richard Whatmore eds., 2008) (1797). ↩︎
3. Correlli Barnett, Britain and Her Army 1509–1970: A Military, Political and Social Survey 41 (1970). ↩︎
4. Statute the Second 1326, 1 Edw. 3 c. 5 (Eng.), 1 Statutes of the Realm 255; Militia Act 1776, 16 Geo. 3 c. 3 (Gr. Brit.); F.W. Maitland, The Constitutional History of England 277 (1920). ↩︎
5. John K. Mahon, History of the Militia and the National Guard 32 (1983). ↩︎
6. Del. Const. of 1776, art. IX; Md. Const of 1776, art. XXXIII; Mass. Const. of 1780, pt. 2, ch. II, § I, art. VII; N.C. Const. of 1776, art. XVIII; Va. Const. of 1776. ↩︎
7. Articles of Confederation, art. VI, § 4. ↩︎
8. Id., art. IX, § 5. ↩︎
9. 1 Farrand’s 21. ↩︎
10. Id. at 54. ↩︎
11. Id. at 61. ↩︎
12. 2 Farrand’s 168. ↩︎
13. Id. at 389–90. ↩︎
14. Id. at 390. ↩︎
15. John Phillip Reid, In Defiance of the Law 103–07 (1981). ↩︎
16. 10 DHRC 1300. ↩︎
17. Id. at 1302–03. ↩︎
18. Id. at 1269–70. ↩︎
19. Id. at 1271. ↩︎
20. David E. Young, The Origin of the Second Amendment 160, 476 (1995). ↩︎
21. Id. at 1270. ↩︎
22. Houston v. Moore, 18 U.S. (5 Wheat.) 1, 52–53 (1820) (Story, J., dissenting). ↩︎
23. Act of Sept. 29, 1789, ch. 25, § 5, 1 Stat. 95, 96. ↩︎
24. David P. Currie, 1 The Constitution in Congress: The Federalist Period 1789–1801, at 160–31 (1997). ↩︎
25. Act of May 2, 1792, § 1, 1 Stat. 264, 264. ↩︎
26. Id. ↩︎
27. Id., § 2. ↩︎
28. Id., § 1. ↩︎
29. Id., § 2 (restriction removed in Act of Feb. 28, 1795, ch. 36, § 2, 1 Stat. 424). ↩︎
30. Op. of Justices, 8 Mass. 548 (1812). ↩︎
31. Russell F. Weigley, History of the United States Army 120 (1967). ↩︎
32. Robert Leider, Federalism and the Military Power of the United States, 73 Vand. L. Rev. 1011–14 (2020). ↩︎
33. 3 Story’s Commentaries § 1210. ↩︎
34. Martin v. Mott, 25 U.S. (12 Wheat.) 19, 28 (1827). ↩︎
35. Auth. of President to Send Militia into a Foreign Country, 29 U.S. Op. Atty. Gen. 322 (1912). ↩︎
36. Id. at 324. ↩︎
37. 23 Annals of Congress 735–37, 743–46 (1812). ↩︎
38. Leider, Federalism and the Military Power, supra at 1017–50; Robert Leider, Deciphering the Armed Forces of the United States, 57 Wake Forest L. Rev. 1195, 1228–33 (2022). ↩︎