THE MILITIA CLAUSES AND MILITARY FEDERALISM: THE EMPIRE WITHIN AN EMPIRE
The militia clauses of the Constitution hamper civilian control in two ways. First, they give constitutional sanction to a semimilitary force which can never be completely subordinated to military discipline nor completely removed from political entanglements. Secondly, they give constitutional sanction to a division of control over the militia between state and national governments which necessarily involves the militia in the conflicting interests of the federal system. This unique combination of characteristics — part civilian and part military, part state and part national — tends to make the militia independent of the policy-making institutions of government.
The Framers had good reasons to prefer a militia force to a regular army. But there was little rational justification for splitting up the control of this force. As Madison said, this control “did not seem in its nature to be divisible between two distinct authorities.” Politics if not logic, however, forced the Framers, Madison included, to support dual control. Some, such as Hamilton, wanted complete control in the United States. Others wished the national government to be completely excluded from authority over the militia. The clash of these viewpoints produced a variety of compromise suggestions. In the end, the balance of political forces resulted in the following militia clauses:
The Congress shall have Power . . .
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of Officers, and the Authority of training the Militia according to the discipline prescribed by Congress . . . The President shall be Commander-in-Chief . . . of the Militia of the several States, when called into the actual service of the United States . . .
In addition, of course, Congress also has the authority to “raise and support armies” under the army clause.5 The exercise of these authorities can be divided into two periods. From 1792 to 1903, the militia was under state control in time of peace and dual control in time of war. After 1903 the militia was under dual control in time of peace and national control in time of war.*
State control existed in peacetime throughout the nineteenth century because Congress, in the Militia Act of 1792, which was the basic legislation in this field until 1903, refused to exercise its powers under the militia clauses and provided for neither effective federal supervision nor effective federal support. Consequently, the militia remained exclusively state forces when not in the active service of the United States. When they were in such service, however, the dual control under the militia clauses resulted in constant confusion and bickering over the purposes for which the militia might be used and the appointment of officers. In 1812, for instance, when the President called out the militia, the governors of Massachusetts and Connecticut asserted that they and not he had the right to decide whether the circumstances justified the call. Later in the war militia on the Niagara frontier refused on constitutional grounds to enter Canada to support regular American troops fighting there. In the Spanish-American War, militia units likewise refused to serve outside the United States. The President was constitutional Commander in Chief of the militia while it was in federal service. Yet how could he function in this capacity when his officers in war as well as peace were appointed by state governors? In the War of 1812 state governors challenged the authority of the President to subordinate militia units to the command of Regular Army general officers. State officials removed their troops from national service as they saw fit and upset the lines of command by appointing militia officers to higher rank than the regular officers to whom the militia units were theoretically subordinate. In the Civil War, also, the states appointed the regimental officers of the militia and the national volunteers assigned to the states, while the President appointed the general officers. The Act of April 22, 1898 providing for the Volunteer Army for the Spanish-American War reproduced this division of authority.6
Dual control in war did not survive the nineteenth century. The militia has fought twentieth-century wars as an exclusively national force under the army clause. Nor did the system of state control in time of peace extend past 1903. Dual control under the militia clauses became a reality when Congress passed the Dick Act of that year. The effects of these changes were twofold. The military importance of the militia in time of war was enhanced because it now had the wherewithal to become an effective military body. The political power of the militia in time of peace was enhanced because it was placed between two competing authorities. Civilian control of the militia — difficult in time of war in the nineteenth century — became in the twentieth century difficult in time of peace. Thus, the militia clauses are the constitutional base for a potent political organization — the National Guard, and its spokesman, the National Guard Association. It is generally recognized that constitutions are created by political forces. It is also true, however, that constitutions may themselves create or impel the creation of political interests. This is the case with the militia clauses and the National Guard. Were it not for these clauses, the Guard and the National Guard Association would not exist with the influence which they have today.
The National Guard Association was formed in 1878 by a group of militia officers for the primary purpose of getting Congress to exercise its responsibilities under the militia clauses. It was designed to “present a united front” for joint control.7 Its founders wished the national government to supply money, instruction, standards, and a certain measure of supervision to the state militia. The Regular Army was opposed because it did not think the militia could be an effective national force. The dual control advocates, however, won their first victory in 1903 and subsequently strengthened and maintained their position despite the continuing hostility of the Regular Army. Throughout its existence the Guard has recognized its dependence upon the militia clauses and has stoutly defended its dual status. Guard officers maintain that these clauses embody the true sentiments of the Framers on military policy. Constitutional “dual control” is opposed to central control and to exclusive, state control. The latter is impossible because it is not economically feasible for the states to carry the entire cost of the Guard; the former is unconstitutional because, according to the Guard, the army clause gives Congress the power only to maintain a standing army not to keep a federal militia. For the Guard, dual control in peace means that the national government should supply the funds and the know-how while the states supply the command and direction. The Association has consistently sought more federal money for Guard activities but resolutely opposed any extension of federal control. In 1949, for instance, it demanded increased federal aid for armories and construction, a uniform clothing allowance for National Guard officers, and the franking privilege for National Guard mail. At the same time it vigorously condemned further federal control over the Guard, describing the 1948 Gray Board recommendation for a single national reserve force as “unconstitutional, un-American . . . contrary to our concept and philosophy of life . . . ill-advised and illegal.” Upon the constitutional base of the militia clauses, the National Guard has created a political force of formidable proportions. As the president of the Association frankly and accurately proclaimed, the Guard is an “empire within an empire.”8 Within its sphere of interest its word is law, or becomes law very quickly. The extent of this power, and the ways in which the militia clauses contribute to it, may be seen in: (1) its legal status; (2) its constitutional symbolism; (3) its official representation in state and national governments; (4) the peculiar position of the National Guard Association; and (5) the influence of the Guard with Congress.
Legal Status. The efforts of the Association to enhance the Guard’s dual status have put the latter in a unique legal position. The National Guard is a single organization with a double existe
nce. As the “National Guard of the several states and territories,” it is organized under the militia clause and has the mission of preserving law and order within the states under the orders of the state authorities. In this capacity it may be “called forth” by the President under the appropriate authority of Congress for the limited constitutional purposes of executing the laws of the United States, suppressing insurrection, and repelling invasions. If this were its only status, the Guard would be constitutionally incapable of participating, as an organization, in a foreign war. In 1917, without authority permitting overseas service, its members went into the national army as groups of individuals, and Guard organization was disrupted. As a result, the Association in 1933 secured the passage of an act which makes the Guard as the “National Guard of the United States” a reserve component of the Army of the United States under the army clause. In this capacity, its mission is to furnish units for all types of military operations anywhere in the world. As the National Guard of the United States, it may be “ordered” to active service by the President after Congress has declared the existence of a national emergency. The Guard has the best of two worlds. Its status under the militia clause protects it against federal control in peacetime. Its status under the army clause insures it of a prominent role in wartime.
Constitutional Symbolism. As a militia under dual control, the Guard identifies itself with two venerated constitutional symbols: the citizen-soldier and states’ rights. Guardsmen are “amateur soldiers,” citizens first and soldiers second in the Minute Man tradition. “In the future as in the past,” the Association declared in 1944, “and based upon sound tradition, long experience, and this Nation’s fundamental law, the citizen-soldier must be the major dependence of the Nation in time of war.” The federal reserves, however, can likewise claim to be citizen-soldiers. But only the Guard can also invoke the banner of states’ rights. Our “organizations,” claimed President Walsh, “belong to the States and are merely loaned to the Federal Government in wartime.” The Guard wants the “Federal system adhered to” in the military establishment. The Guard can thus expect the support of the state governments against the national government. In 1943, for instance, the Conference of Governors urged continued dual status for the Guard in the postwar period, and in 1948 the Executive Committee of the Conference joined the Guard in denouncing the Gray Board report. Its state affiliations enhance the political influence of the Guard relative to that of the reserve associations of the national forces. In 1954 the Reserve Officers Association had 60,000 members and the NGA had 34,000. The ROA normally has had more money and a larger staff than the NGA. Nonetheless, without a secure base of operations in the states, the ROA has not equaled the NGA in political influence. In 1946 the president of the ROA described his organization as the “younger brother” of the National Guard Association and admitted that “The National Guard has much of what we the Reserves have not had.”9
State and National Representation. The position of the Guard is strengthened by its official foothold in both the state and national governments. The heads of the Guard in the states are the adjutants general appointed by the governors. These officials represent the Guard within the state governments and are linked nationally through the Adjutants General Association which is a “corollary” organization of the NGA. The Guard is represented in the Department of the Army by the Chief of the National Guard Bureau, who under the National Defense Act of 1920 must be a Guardsman, and by the National Guard members of the joint General Staff committees which, under the same act, must consider all policies affecting the Guard. These national representatives keep the NGA well informed of what transpires within the Army and the War Department. The Guard has regularly insisted that it be included at an early stage in the preparation of War Department policies which might affect it. Exclusion of the Guard in the development of policy generally means opposition by the NGA when the programs are submitted to Congress.10
The National Guard Association. The NGA, like so many other powerful groups, occupies an ambiguous position on the borderline between a private association and a public body. Legally it is simply a voluntary organization of National Guard officers. Nonetheless, it considers itself to be “the authorized Representative of the National Guard of the United States.” It is also closely tied in with the official state and national representation of the Guard. In 1948, when only 42 per cent of Guard officers belonged to the NGA, the Association declared it to be the responsibility of the adjutants general “to insist that every National Guard Officer be a member of the National Guard Association.” To this end it urged the states to require each new Guard officer to fill out an NGA membership application prior to appearing before the official examining board. Through such techniques, the NGA by 1953 achieved a 99 per cent membership among Guard officers. As a private association the NGA carries on public relations activities, publishes the monthly National Guardsman, and represents the Guard with respect to a wide variety of legislation. At one point in the debate over the Selective Service Act of 1948, for example, when it looked as if the Guard viewpoint would not prevail, the Association brought members from thirty-four states to Washington to lobby with their congressmen. In two days they were eminently successful in getting Congress to adopt the National Guard position. In President Walsh’s words, the great virtue of the NGA is that it is
. . . the only agency on which the National Guard can rely to protect its interests, for the Association is free and untrammeled and it does not have to conform to any particular pattern nor is it bound within the narrow limits of channels of communication or the chain of command.11
Influence with Congress. In the final analysis the influence of the Guard boils down to its influence with Congress. The fate of the militia is in the hands of Congress. Conceivably, Congress could destroy the dual status of the Guard and undermine its political power by refusing to exercise its functions under the militia clause and by returning to the pre-1903 situation. Conversely, Congress could federalize the Guard and make it an exclusively national instrumentality under the army clause. NGA officers, however, assert that “We should settle the future of the National Guard.” If the NGA is going to “settle” the fate of the Guard, it must settle the actions of Congress on National Guard affairs. For half a century it has been astoundingly successful in doing exactly this. The local roots of the Guard, its appeals to states’ rights and the citizen-soldier, its support from the state governments, its lobbying and pressure tactics, have made it a power on Capitol Hill. “Congress,” in the words of President Walsh, “has ever been our refuge and our strength.”
The record of National Guard success with Congress begins with the Dick Act of 1903. Representative Dick himself was a former president of the National Guard Association. In 1908 the Association secured the passage of the second Dick Act strengthening federal support of the Guard. In 1916 the Guard “threw every ounce of its energy into an effort to defeat” the Continental Army plan of the General Staff. It was successful, and the National Defense Act of that year was in line with its views. The position of the Guard was greatly strengthened four years later by the National Defense Act of 1920, which the Guard described as “a great achievement and a great victory.” In passing the 1933 act making the Guard a reserve component of the Army in peace as well as war “Congress saw eye to eye with the proposals submitted by the National Guard.” Throughout the twenties and thirties, the NGA successfully devoted its efforts to increasing the appropriations of the Guard from $13,000,000 in 1920 to $72,000,000 in 1941. In 1940 when the original Selective Training and Service Bill as proposed in Congress did not secure the interests of the Guard, the Association had inserted into it the “National Guard protective clause” which declared it to be “essential that the strength and organization of the National Guard as an integral part of the first line of defense of this nation be at all times maintained and assured.” In 1946 the Guard fought efforts by the War Department to set up a large Organized Reserve Corps whic
h the Guard viewed as a “competing” and “parallel” organization. A War Department recommendation for a $40,000,000 appropriation for the ORC was eliminated by Congress at the insistence of the National Guard. The Guard had no difficulty, however, in getting funds for itself. For Fiscal Year 1949 the Budget Bureau recommended $195,000,000 for the Guard. The NGA did not think this enough and got the economy minded Eightieth Congress to appropriate $290,000,000. In 1948 the Association was also successful in getting its views written into the Selective Service Act and in blocking the legislative recommendations of the Gray Board. In 1954 when an Assistant Secretary of Defense suggested that the Guard should be used only for Home Guard and civil defense functions, President Walsh confidently picked up the challenge: “If they want war, let it begin here.”12
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