The First Calling Forth Clause: The Constitution's Non-Emergency Power to Call Forth the Militia to Execute the Laws

• Author: Alden A. Fletcher
• Pages: 1-60

ARTICLES

The First Calling Forth Clause: The Constitution’s

Non-Emergency Power to Call Forth the Militia to

Execute the Laws

Alden A. Fletcher*

ABSTRACT

The January 6 insurrection and the federal government’s response to the

George Floyd protests highlight the perils of confiding vast military authority in

a single person and the possibility of military force being used against civilians.

Troublingly, the Insurrection Act gives the President unilateral control over the

decision to call out the troops. And the Constitution seemingly contemplates a

military role in domestic law enforcement by permitting Congress to “provide

for calling forth the Militia to execute the Laws of the Union.” This sweeping

constitutional provision has surprisingly not been the subject of sustained aca-

demic inquiry regarding its original meaning. The scholars who have opined on

the Clause’s original meaning have generally concluded that “execute the

Laws” requires violent resistance to the laws before military force may be

brought to bear. This contention does not withstand close scrutiny. This Article

breaks new ground by showing that the best evidence from British, colonial,

and founding-era history reveals the phrase “execute the Laws” was as broad

as its plain meaning suggests. Indeed, the historical record reveals that the text

of the Clause was the work of the Constitutional Convention’s Federalists, who

were troubled by the states’ failure to comply with the terms of the peace treaty

with Great Britain during the Critical Period.

Importantly, the historical evidence bolsters the understanding that Congress

and the judiciary may be intimately involved in the process of deciding to use mili-

tary force domestically. Even before the Calling Forth Act of 1792—which condi-

tioned the President’s ability to deploy the militia on judicial preapproval—two

states with strong executives, New York and Massachusetts, carved out involved

roles for the courts in controlling the domestic use of the militia. Moreover, state

and colonial calling-forth frameworks predating the Constitutional Convention dis-

play a strong trend against unilateral executive decision-making in this area. In

short, the founding-era history both supports broad permission of the federal gov-

ernment to use troops domestically as well as a significant ability of Congress and

* The views expressed here are solely my own. Thanks to Dean William Treanor and Professor John

Mikhail for helpful comments on this project. This work benefitted tremendously from discussions with

the participants in the Spring 2020 Advanced Constitutional Law Seminar: The Framing and

Ratification of the Constitution at the Georgetown University Law Center. Finally, many thanks to the

editors of the Journal of National Security Law and Policy. © 2022, Alden A. Fletcher.

1

the courts to regulate and check the executive branch’s domestic use of military

force, even in a crisis.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. BACKGROUND: SCHOLARSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. The Narrow Reading: Violence and Emergency . . . . . . . . . . 10

B. The Broad Reading: Carry Out the Law . . . . . . . . . . . . . . . . 12

II. “DRAW OUT AND EMBODY,” BRITISH , COLONIAL, AND STATE CLAUSES . 14

A. British and Colonial Frameworks . . . . . . . . . . . . . . . . . . . . . 15

B. State Constitutional Frameworks . . . . . . . . . . . . . . . . . . . . . 18

C. State Acts: Calling Forth Power . . . . . . . . . . . . . . . . . . . . . . 19

D. State Acts: Execution of the Laws and the Posse Comitatus . . . 23

III. THE CRISIS AND THE CONVENTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

A. Debt and Destruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

1. The Peace Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

2. Jay’s Report on Treaty Infractions . . . . . . . . . . . . . . . . . 28

B. The Virginia and New Jersey Plans. . . . . . . . . . . . . . . . . . . . 31

C. The Committee of Detail . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

1. The Drafts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

2. Call Out, Not Embody . . . . . . . . . . . . . . . . . . . . . . . . . . 36

D. On The Convention Floor . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

IV. RATIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

A. Widening the Aperture: The Ratification Debates . . . . . . . . . 41

B. The Virginia Ratification Convention Redux . . . . . . . . . . . . . 45

C. Execute the Laws, By Whom? . . . . . . . . . . . . . . . . . . . . . . . . 48

V. THE CALLING FORTH ACT OF 1792 . . . . . . . . . . . . . . . . . . . . . . . . . . 49

A. The Judicial Notice Requirement . . . . . . . . . . . . . . . . . . . . . 50

B. Federal Marshals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

VI. THE POWER TO CALL FORTH THE MILITIA TO EXECUTE THE LAWS OF THE

UNION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

A. Military Execution of the Laws . . . . . . . . . . . . . . . . . . . . . . . 54

B. Riots, Protests, and Pandemics . . . . . . . . . . . . . . . . . . . . . . . 56

C. The Power to Provide for Execution . . . . . . . . . . . . . . . . . . . 58

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

INTRODUCTION

As a mob attacked the U.S. Capitol on January 6, 2021, ultimate authority to

call out federal forces for Congress’s defense rested with the very person who

had exhorted that mob to march down Pennsylvania Avenue and to “fight like

2 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 13:1

hell.”

1

Brian Naylor, Read Trump’s Jan. 6 Speech, A Key Part Of Impeachment Trial, NAT’L PUB. RADIO,

(Feb. 10, 2021, 2:43 PM), https://perma.cc/ML7T-3KAV.

This was of course the President of the United States.

2

It has since emerged

that President Trump’s supporters urged him to invoke the Insurrection Act and

send troops against Congress.

3

E.g., ELIZABETH GOITEIN & JOSEPH NUNN, BRENNAN CTR. FOR JUSTICE, THE INSURRECTION ACT:

ITS HISTORY, ITS FLAWS, AND A PROPOSAL FOR REFORM 18 (2022) (Statement submitted to the United

States House Select Committee to Investigate the January 6th Attack on the United States Capitol); Luke

Broadwater, Fearing a Trump Repeat, Jan. 6 Panel Considers Changes to Insurrection Act, N.Y. TIMES

(Apr. 19, 2022), https://perma.cc/5BNN-L5FZ.

While he declined on January 6, the President, in

response to the 2020 George Floyd protests only a few months earlier,

4

Floyd’s murder by a Minneapolis police officer ignited nationwide demonstrations against police

violence. Former Police Officer Derek Chauvin Found Guilty of Murder in George Floyd Death, WASH.

POST. (Apr. 20, 2021), https://perma.cc/M3SP-TMU2. Though an urgent topic in its own right, the

militarization of local, state, and federal police forces is not the subject of this Article.

threatened

to use the Insurrection Act to deploy the military to “dominate the streets” in

American cities.

5

Matt Zapotosky, Trump Threatens Military Action to Quell Protests, and the Law Would Let Him

Do It, WASH. POST. (June 1, 2020, 10:31 PM), https://perma.cc/CPC2-69ZX (quoting the President

stating that if governors did not “dominate the streets,” he would “deploy the United States military and

quickly solve the problem for them”); see also Tom Cotton, Opinion, Send in the Military, N.Y. TIMES

(June 3, 2020), https://perma.cc/Q87M-CGSM.

President Trump did not follow through then either, but the fed-

eral government’s response to the protests included the deployment of federal

agents without identification,

6

Garrett M. Graff, The Story Behind Bill Barr’s Unmarked Federal Agents, POLITICO (June 5, 2020,

08:08 AM), https://perma.cc/KC9L-T2MP.

the use of a military helicopter to intimidate pro-

testors,

7

Thomas Gibbons-Neff & Eric Schmitt, Pentagon Ordered National Guard Helicopters’

Aggressive Response in D.C., N.Y. TIMES (June 6, 2020), https://perma.cc/V3CJ-MBCM.

and a broad assertion of authority to federalize state National Guard

units.

8

See Steve Vladeck, Why Were Out-of-State National Guard Units in Washington, D.C.? The

Justice Department’s Troubling Explanation, LAWFARE (June 9, 2020, 10:47 PM), https://perma.cc/

SXR3-AXCH.

Together, these two searing moments illustrate twin perils: the conferring

of vast crisis authority in a single person and the possibility of military force

being brought to bear on civilians.

More generally, the Trump administration’s use and misuse of emergency

authorities has highlighted a President’s ability to declare a fictitious emergency

to activate extraordinary crisis powers.

9

See, e.g., Elizabeth Goitein, The Alarming Scope of the President’s Emergency Powers, ATLANTIC

(Feb. 15, 2019), https://perma.cc/KEY6-SK6W; see also, e.g., Alden A. Fletcher, Note, Roosevelt’s

“Limited” National Emergency: Crisis Powers in the Emergency Proclamation and Economic Studies

of 1939, 12 J. NAT’ L SECURITY L. & POL’Y 379, 380–81, 411–12 (2022).

For instance, the Insurrection Act confers

vast discretion in the President alone to deploy the armed forces domestically to

overcome opposition to the laws.

10

Unfortunately, Congress suffers from struc-

tural disadvantages that prevent it from effectively checking a President’s

1.

2. Id.

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10. 10 U.S.C. § 253; see GOITEIN & NUNN, supra note 3, at 12–21 (detailing the problems with the

current Insurrection Act).

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