It’s about time we start digging a bit deeper into the powers listed in Article 1, Section 8. I don’t necessarily mean digging into the case law and precedent of each enumerated power (which we can get to eventually) but rather digging into the thoughts and intentions of the framers when they wrote these enumerated powers.
I’m going to start with the war powers clause because it’s the clause that I needed most help with in my own studies, so I figure I’ll share with you what I’ve discovered.
“To declare War, grant Letters of Marque and Reprisal, and make Rules concerning captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
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 the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”
There’s a lot to this section of Article 1, Section 8 and there’s more in the Constitution to deal with war powers, but I’m only going to focus on Article 1, Section 8 today. Since war powers, and the militia are such inherently critical powers, we must, as government’s employers understand what the powers entail and what they mean.
My initial confusion with the war powers clause centered around the militia clause. What is a militia in contrast to an army and navy? The militia is obviously something that has stayed relevant since the Second Amendment refers to an armed militia being protected.
However, I discovered that there was much more nuance to the declaration of war as well as creation of the army and navy than I’d originally thought.
The Debate and a Standing Army
One of the greatest debates of the Constitutional Convention centered around the war powers of the new federal government. Who’s to declare war? What does “declare” mean? (It was changed from “make” to “declare”). Who funds the war? Should there be a standing army and navy to protect the country from foreign invasion or should the federal government rely on state militias and state funding much like they did in the War for Independence?
These, along with many other questions, plagued our founders while writing the Constitution.
Ultimately, the framers decided that they would be the first to make the unprecedented decision to give Congress the sole and exclusive responsibility of taking the country from a state of peace to a state of war. This was unprecedented because almost all European countries gave this power exclusively to the executive. However, the founders, particularly Madison, were very wary of so much power in the hands of one individual and wanted to prevent any irrational, emotional moves by the executive to quickly take the nation into war.
Basically, give the power to declare war to the slowest, most cumbersome branch in order to prevent any unhealthy or irrational moves of war making. They didn’t want the country to become engaged in military or personal conquests nor to have a proclivity to war (Waxman) Further, the framers believed that wars tended towards the centralization of power, therefore, wars should not be entered into often or quickly. The slowest branch, as well as the branch most directly connected to the people, was therefore bequeathed with the power to take the country from peace into war. (Of course, there’s much that I could unpack about what “war” is…what is full-fledged war vs. strategic military moves?).
Since Congress was given the power to take the country into war, it was also given the exclusive power of funding and creating the military needed to wage war. This was also hotly contested because many of the founders had a bitter taste in their mouths from their experience with the British standing army. Being well read, the framers were also aware of the historical examples of other countries whose standing armies were used for oppression and conquest. They associated standing armies with tyranny and a proclivity toward war (Waxman).
This was something they were heavily wary of and were therefore particularly careful when drafting this power. However, Washington, Hamilton and those who had experienced fighting in the War for Independence, felt that there needed to be some kind of provision allowing for a standing army. Liberty is also in danger if the country cannot defend itself.
If you notice, the enumerated power given to Congress regarding armies says that Congress can make law to raise (by law, create) and support (by law, fund) standing armies but that the appropriations of funds for this standing army expires after two years. This was a very intentional caveat to the power of the standing army. On one hand, the army is able to exist in times of peace. So, the enumerated power does not specify that Congress must only create and support an army if there is a war to be fought. The army can exist regardless of whether or not the country is engaged in waging war.
However, because the framers were particularly wary of armies and the government’s proclivity to use standing armies to repress their own citizens, the founders worked in a “kill switch” for the standing army. Congress is constitutionally required to revisit the funding of the standing army every two years and can simply stop the flow of funds if they believe such an action to be necessary… crippling the standing army in such a case. Such a caveat is not part of the navy clause because the founders were less concerned about the use of the navy to repress citizens and were also aware that building a strong navy would take a substantial amount of time.
The framers thought through, argued over and theoretically justified every little aspect of our government’s job description.
This brings us to the militia clause. Historically speaking, militias pre-dated the Constitution and the government. Every “colony, turned state” had their own militia and these militias were to be Constitutionally guaranteed. In fact, Dr. Matthew Waxman of Columbia Law School, argues that he believes the Constitution would not have been ratified without for this militia clause. This is how fervently the states held to their militias.
In other words, Waxman argues that while militias are constitutionally protected and guaranteed, a standing military is not. A standing army is a discretionary power, one that Congress can choose to use or not use. Not so with state militias. Prior to the new government, almost every able bodied man within each state was given some sort of military training. This means that, in a time of war, every able bodied man was both armed and trained to fight in the war, though war-making was not his primary vocation.
Also notice that the clauses related to the power of Congress to call forth the militia are very specific. The militia can only be called forth to “execute the Laws of the Union, suppress Insurrections and repel Invasions;”
In short, the militia can be used if there is a domestic need. However, the training and appointment of these state militia officers is reserved to the States, so while Congress can call upon them in a dire need, much of the power over them still resides in the states. Congress cannot call upon the state militias to fight foreign wars but can call upon them if there is a specific domestic need such as an insurrection or an invasion on the mainland.
I’ll address the arguments surrounding what a militia is today in a subsequent article but I believe I’ve given you enough to chew on for now.
I’ve laid out the framers original understanding and intent regarding the war powers cited in Article 1, Section 8. What I have not done is explore just how grossly perverted these powers have become over time. But before we can see the perversion from the original we must understand and know the original.
This is our job as Americans. This is our job as government’s employer, a job we’ve neglected far too long.
The Liberty Belle