Student Note the Militia Clauses and the Original War Powers

STUDENT NOTE

The Militia Clauses and the Original War Powers

Benjamin Daus*

I. THE MILITIA: A HYBRID INSTITUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 493

A. English Roots . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 495

B. The American Militia as a Republican Institution . . . . . . . . . 497

C. The Militia in Social Context . . . . . . . . . . . . . . . . . . . . . . . . . 500

D. The Militia of the Constitution. . . . . . . . . . . . . . . . . . . . . . . . 503

II. INCORPORATING THE MILITIA INTO THE CONSTITUTION . . . . . . . . . . . . . . . . 504

A. Considerations at Philadelphia . . . . . . . . . . . . . . . . . . . . . . . 504

B. Triplet Federalism Checks. . . . . . . . . . . . . . . . . . . . . . . . . . . 507

C. The Separation of Powers Check . . . . . . . . . . . . . . . . . . . . . . 511

D. Limitations on Deployment . . . . . . . . . . . . . . . . . . . . . . . . . . 514

E. The Second Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 515

III. EARLY PRACTICE: THE CONTINUATION OF POLITICS BY OTHER MEANS . . 516

A. Organizing the Militia: Interbranch Dialogue . . . . . . . . . . . . 517

B. The Whiskey Rebellion: Federal-State Dialogue . . . . . . . . . . 519

C. The Caroline Affair: Dialogue with the People . . . . . . . . . . . 521

D. An Unstable Institution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523

IV. THE WAR POWERS AND CHECKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525

Today, the Militia Clauses of the Constitution lead a curious double life. The

Second Amendment’s preamble stars in gun rights debates,

1

but when the

* Benjamin Daus is a J.D. Candidate at Yale Law School and is an Associate in the Off‌ice of Dr.

Henry Kissinger. He would like to thank Akhil Amar for his teaching and guidance, Jack Goldsmith for

his advising, the JNSLP team–Todd Huntley, Nicole Molinaro, Stephen Robinson, and Michael

Crowley–and Eugene Yang, Jimmy Byrn, and Zack Austin for inspiration and feedback. © 2021, Ben

Daus.

1. The Second Amendment literature exploring the institutional nature and role of the militia is

extensive. For one account putting the military dimension front and center, see David S. Yassky, The

Second Amendment: Structure, History, and Constitutional Change, 99 MICH. L. REV. 588, 612 (2000).

For an important smattering, see, e.g., SAUL CORNELL, A WELL-REGULATED MILITIA: THE FOUNDING

FATHERS AND THE ORIGINS OF GUN CONTROL IN AMERICA 2 (2006); CLAYTON E. CRAMER, FOR THE

DEFENSE OF THEMSELVES AND THE STATE 14, 34 (1994); JOYCE LEE MALCOLM, TO KEEP AND BEAR

ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT 3 (1994); PATRICK J. CHARLES, ARMED IN

AMERICA: A HISTORY OF GUN RIGHTS FROM COLONIAL MILITIAS TO CONCEALED CARRY 12 (2018);

Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America:

The Legal Context of the Second Amendment, 25 L. & HIST. REV. 139, 140 (2007); David T. Hardy, The

Rise and Demise of the Collective Interpretation of the Second Amendment, 59 CLEV. ST. L. REV. 315,

318-19 (2011); Don Higginbotham, The Federalized Militia Debate: A Neglected Aspect of Second

Amendment Scholarship, 60 WM. & MARY Q. 39, 39 (1998); Don B. Kates, Jr., Handgun Prohibition

and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204, 212 (1983); Robert E.

489

conversation shifts to the War Powers, these Clauses drop almost entirely from

view. The result is a War Powers literature strikingly silent about the Militia

Clauses.

2

Yet the founders regarded the militia as a key military resource. To

them, the militia was the “great Bulwark of our Liberties and independence,”

3

and

they structured the Constitution with this bulwark in mind.

4

The term “Militia”

appears in the Constitution four times in three separate clauses, a f‌ifth time in the

crucial-to-ratif‌ication Second Amendment, and a sixth time in the Fifth

Amendment.

5

Between the Constitution and Bill of Rights, it features four times

more than “commerce,” “army/armies,” “navy,” and “religion/religious,” once

more than “jury,” and the same number of times as “tax.” It also receives extended

analysis in six Federalist Papers and reference in eight others.

6

The result was a

complex, carefully operating system that incorporated an important institution into

the Constitutional scheme and provided Congress with a key tool to shape the

exercise of the War Powers and federal responses to military emergencies.

This analysis returns the Militia Clauses to view, exploring how they shaped

the War Powers. While scholars have occasionally considered the clauses in

Shalhope, The Armed Citizen in the Early Republic, 49 L. & CONTEMP. PROBS. 125, 125 (1986); David

C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 YALE

L.J. 551, 553 (1991); Eugene Volokh, “Necessary to the Security of a Free State,” 83 NOTRE DAME L.

REV. 1, 7 (2007); and Randy E. Barnett, Book Review, Was the right to Keep and Bear Arms

Conditioned on Service in an Organized Militia? 83 TEX. L. REV. 237, 237 (2004). See also Akhil Reed

Amar, Heller, HLR, and Holistic Legal Reasoning, 122 HARV. L. REV. 145, 146 (2008) (bringing the

Fourteenth Amendment into play).

2. The only article-length treatment of the Militia Clauses dates to 1940, and it focuses exclusively on the

militia’s practical ineffectiveness, not its constitutional role. See Frederick Bernays Wiener, The Militia

Clause of the Constitution, 54 HARV. L. REV. 181 (1940). In the War Powers literature, the Militia Clauses

feature only in passing. See, e.g., Robert J. Delahunty, Structuralism and the War Powers: The Army, Navy

and Militia Clauses, 19 GA. ST. U. L. REV. 1021, 1052-55 (2003) (offering only about three pages of

analysis); John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of the

War Powers, 84 CALIF. L. REV. 167, 227-28 (1996) (offering only cursory analysis, primarily through the

lens of state constitutions). They have also surfaced in the rare debates over National Guard. See Perpich v.

Dep’t of Def., 496 U.S. 334, 345-46 (1990) (explaining that, since the National Guard is authorized both

under the Militia Clauses and the Army and Navy clauses, the Militia Clauses impose no real restrictions on

the National Guard’s use). Stephen Vladeck brings the Militia Acts back into the emergency powers debate,

but his analysis narrowly targets whether the president’s authority to use military force in response to

domestic crises derives from the Acts or is inherent in Article II. See Stephen I. Vladeck, Emergency Power

and the Militia Acts, 114 YALE L.J. 149, 151-52 (2004).

3. George Washington, Sentiments on a Peace Establishment (May 1, 1783), https://perma.cc/U9LK-

VGZL.

4. Amar noted the relationship between institutions and the Constitution in his important article,

Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1132 (1992), observing that

the Bill of Rights’ main purpose was “not to downplay” “various intermediate associations” like

“church, militia, and jury,” but to “deploy” them.

5. U.S. CONST. art. I, § 8, cl. 15-16, art. II, § 2, cl. 1., amends. II & V.

6. See THE FEDERALIST NO. 4 (John Jay), NOS. 8, 24, 25, 26, 28, 29, 69, 74 (Alexander Hamilton),

NOS. 41, 45, 46, 53, 56 (James Madison). The militia receives extended discussion in or dominates

Federalist Nos. 4, 25, 26, 28, 29, 45, 46. Even those papers that attack the militia’s eff‌icacy demonstrate

its importance—at the outset of the debates, the question was whether the federal government could

create an army at all. The militia’s popularity was so great that the institution had to be critiqued to open

people to the possibility of an army.

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isolation,

7

the full dimensions of this regime only become visible when the

clauses are examined intratextually—that is, in dialogue with each other and the

rest of the constitutional text.

8

Doing so both illuminates the original functioning

of the War Powers and prevents misunderstandings that can arise when individual

clauses are considered in isolation. Overall, this analysis illustrates how the

Constitution endowed Congress, the states, and the people with substantial formal

and functional checks on the executive’s use of the War Powers through its allo-

cation of control over the militia. It also reveals how historically distinct these

checks were, and how diff‌icult they would be to recover today.

At heart, the Militia Clauses empowered the federal government by allowing it

to command state militias while simultaneously endowing Congress with a

powerful tool. The militia’s institutional features created substantial political

restraints on the executive. In contrast to the regular army’s hierarchical, apoliti-

cal nature, the militia was distinctly popular, loyal to the states, deliberative, and

democratic, both in its internal functioning and its relationship to the polity.

Thus, by incorporating the militia into the constitutional scheme, the Constitution

gave Congress a choice of two military paradigms to employ. It could either

authorize a large regular army, or it could force the executive to rely on the popu-

lar militia. Given the militia’s institutional characteristics, if the executive was

forced to rely on the militia, that reliance would place substantial formal and po-

litical limits on his scope of action.

These constraints manifested in four distinct ways. First, giving the militia a

central role in military affairs generated a powerful democratic feedback loop.

Militiamen were soldiers, but they were also constituents. By placing an institu-

tion containing every citizen aged eighteen to forty-f‌ive at the heart of the

nation’s defensive scheme, the Congress could force the executive to be more so-

licitous of public opinion in deciding questions of war and peace. Yoking the war

powers to “the People” themselves produced dialogue, checked civic apathy, and

forced the federal government to approach war and peace more deliberatively

and persuasively. Of course, involving the people did not necessarily make war

more or less likely—the people might shrink from battle, but they could also

demand it over the objections of federal off‌icials.

Second, the Militia Clauses forced interbranch dialogue. The Constitution

assigned the power to summon the militia and to command the militia to the presi-

dent. However, it granted the power to structure the militia and to set the conditions

when it could be summoned to Congress. Each actor held half the key; only through

communication could they adjudicate their different interests. Furthermore, the

Constitution also barred the militia from serving abroad. Through this limitation, the

Constitution multiplied Congress’ options for structuring America’s military forces.

If Congress chose to rest the national defense primarily on the militia—a force that

7. See, e.g., Stephen I. Vladeck, The Calling Forth Clause and the Domestic Commander in Chief, 29

CARDOZO L. REV. 1091 (2008).

8. Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747, 748 (1999).

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