Article 1, Section 8, Clause 12

Document 29

Joseph Story, Commentaries on the Constitution 3:§§ 1174--87


§ 1174. The power to raise armies is an indispensable incident to the power to declare war; and the latter--would be literally brutum fulmen without the former, a means of mischief without a power of defence. Under the confederation congress possessed no power whatsoever to raise armies; but only "to agree upon the number of land forces, and to make requisitions from each state for its quota, in proportion to the number of white inhabitants in such state;" which requisitions were to be binding; and thereupon the legislature of each state were to appoint the regimental officers, raise the men, and clothe, arm, and equip them in a soldier-like manner, at the expense of the United States. The experience of the whole country, during the revolutionary war, established, to the satisfaction of every statesman, the utter inadequacy and impropriety of this system of requisition. It was equally at war with economy, efficiency, and safety. It gave birth to a competition between the states, which created a kind of auction of men. In order to furnish the quotas required of them, they outbid each other, till bounties grew to an enormous and insupportable size. On this account many persons procrastinated their enlistment, or enlisted only for short periods. Hence, there were but slow and scanty levies of men in the most critical emergencies of our affairs; short enlistments at an unparalleled expense; and continual fluctuations in the troops, ruinous to their discipline, and subjecting the public safety frequently to the perilous crisis of a disbanded army. Hence also arose those oppressive expedients for raising men, which were occasionally practised, and which nothing, but the enthusiasm of liberty, could have induced the people to endure. The burthen was also very unequally distributed. The states near the seat of war, influenced by motives of self-preservation, made efforts to furnish their quotas, which even exceeded their abilities; while those at a distance were exceedingly remiss in their exertions. In short, the army was frequently composed of three bodies of men; first, raw recruits; secondly, persons, who were just about completing their term of service; and thirdly, of persons, who had served out half their term, and were quietly waiting for its determination. Under such circumstances, the wonder is not, that its military operations were tardy, irregular, and often unsuccessful; but, that it was ever able to make head-way at all against an enemy, possessing a fine establishment, well appointed, well armed, well clothed, and well paid. The appointment, too, by the states, of all regimental officers, had a tendency to destroy all harmony and subordination, so necessary to the success of military life.

§ 1175. There is great wisdom and propriety in relieving the government from the ponderous and unwieldy machinery of the requisitions and appointments under the confederation. The present system of the Union is general and direct, and capable of a uniform organization and action. It is essential to the common defence, that the national government should possess the power to raise armies; build and equip fleets; prescribe rules for the government of both; direct their operations; and provide for their support.

§ 1176. The clause, as originally reported, was "to raise armies;" and subsequently it was, upon the report of a committee, amended, so as to stand in its present form; and as amended it seems to have encountered no opposition in the convention. It was, however, afterwards assailed in the state conventions, and before the people, with incredible zeal and pertinacity, as dangerous to liberty, and subversive of the state governments. Objections were made against the general and indefinite power to raise armies, not limiting the number of troops; and to the maintenance of them in peace, as well as in war.

§ 1177. It was said, that congress, having an unlimited power to raise and support armies, might, if in their opinion the general welfare required it, keep large armies constantly on foot, and thus exhaust the resources of the United States. There is no control on congress, as to numbers, stations, or government of them. They may billet them on the people at pleasure. Such an unlimited authority is most dangerous, and in its principles despotic; for being unbounded, it must lead to despotism. We shall, therefore, live under a government of military force. In respect to times of peace, it was suggested, that there is no necessity for having a standing army, which had always been held, under such circumstances, to be fatal to the public rights and political freedom.

§ 1178. To these suggestions it was replied with equal force and truth, that to be of any value, the power must be unlimited. It is impossible to foresee, or define the extent and variety of national exigencies, and the correspondent extent and variety of the national means necessary to satisfy them. The power must be co-extensive with all possible combinations of circumstances, and under the direction of the councils entrusted with the common defence. To deny this would be to deny the means, and yet require the end. These must, therefore, be unlimited in every matter essential to its efficacy, that is, in the formation, direction, and support of the national forces. This was not doubted under the confederation; though the mode adopted to carry it into effect was utterly inadequate and illusory. There could be no real danger from the exercise of the power. It was not here, as in England, where the executive possessed the power to raise armies at pleasure; which power, so far as respected standing armies in time of peace, it became necessary to provide by the bill of rights, in 1688, should not be exercised without the consent of parliament. Here the power is exclusively confined to the legislative body, to the representatives of the states, and of the people of the states. And to suppose it will not be safe in their hands, is to suppose, that no powers of government, adapted to national exigencies, can ever be safe in any political body. Besides, the power is limited by the necessity (as will be seen) of biennial appropriations. The objection, too, is the more strange, because there are but two constitutions of the thirteen states, which attempt in any manner to limit the power; and these are rather cautions for times of peace, than prohibitions. The confederation itself contains no prohibition or limitation of the power. Indeed, in regard to times of war, it seems utterly preposterous to impose any limitations upon the power; since it is obvious, that emergencies may arise, which would require the most various, and independent exercises of it. The country would otherwise be in danger of losing both its liberty and its sovereignty, from its dread of investing the public councils with the power of defending it. It would be more willing to submit to foreign conquest, than to domestic rule.

§ 1179. But in times of peace the power may be at least equally important, though not so often required to be put in full exercise. The United States are surrounded by the colonies and dependencies of potent foreign governments, whose maritime power may furnish them with the means of annoyance, and mischief, and invasion. To guard ourselves against evils of this sort, it is indispensable for us to have proper forts and garrisons, stationed at the weak points, to overawe or check incursions. Besides; it will be equally important to protect our frontiers against the Indians, and keep them in a state of due submission and control. The garrisons can be furnished only by occasional detachments of militia, or by regular troops in the pay of the government. The first would be impracticable, or extremely inconvenient, if not positively pernicious. The militia would not, in times of profound peace, submit to be dragged from their occupations and families to perform such a disagreeable duty. And if they would, the increased expenses of a frequent rotation in the service; the loss of time and labour; and the breaking up of the ordinary employments of life; would make it an extremely ineligible scheme of military power. The true and proper recourse should, therefore, be to a permanent, but small standing army for such purposes. And it would only be, when our neighbours should greatly increase their military force, that prudence and a due regard to our own safety would require any augmentation of our own. It would be wholly unjustifiable to throw upon the states the defence of their own frontiers, either against the Indians, or against foreign foes. The burthen would often be disproportionate to their means, and the benefit would often be largely shared by the neighbouring states. The common defence should be provided for out of the common treasury. The existence of a federal government, and at the same time of military establishments under state authority, are not less at variance with each other, than a due supply of the federal treasury, and the system of quotas and requisitions.

§ 1180. It is important also to consider, that the surest means of avoiding war is to be prepared for it in peace. If a prohibition should be imposed upon the United States against raising armies in time of peace, it would present the extraordinary spectacle to the world of a nation incapacitated by a constitution of its own choice from preparing for defence before an actual invasion. As formal denunciations of war are in modern times often neglected, and are never necessary, the presence of an enemy within our territories would be required, before the government would be warranted to begin levies of men for the protection of the state. The blow must be received, before any attempts could be made to ward it off, or to return it. Such a course of conduct would at all times invite aggression and insult; and enable a formidable rival or secret enemy to seize upon the country, as a defenceless prey; or to drain its resources by a levy of contributions, at once irresistible and ruinous. It would be in vain to look to the militia for an adequate defence under such circumstances. This reliance came very near losing us our independence, and was the occasion of the useless expenditure of many millions. The history of other countries, and our past experience, admonish us, that a regular force, well disciplined and well supplied, is the cheapest, and the only effectual means of resisting the inroads of a well disciplined foreign army. In short, under such circumstances the constitution must be either violated, (as it in fact was by the states under the confederation,) or our liberties must be placed in extreme jeopardy. Too much precaution often leads to as many difficulties, as too much confidence. How could a readiness for war in time of peace be safely prohibited, unless we could in like manner prohibit the preparations and establishments of every hostile nation? The means of security can be only regulated by the means and the danger of attack. They will, in fact, ever be determined by these rules, and no other. It will be in vain to oppose constitutional barriers to the impulse of self-preservation.

§ 1181. But the dangers from abroad are not alone those, which are to be guarded against in the structure of the national government. Cases may occur, and indeed are contemplated by the constitution itself to occur, in which military force may be indispensable to enforce the laws, or to suppress domestic insurrections. Where the resistance is confined to a few insurgents, the suppression may be ordinarily, and safely confided to the militia. But where it is extensive, and especially if it should pervade one, or more states, it may become important and even necessary to employ regular troops, as at once the most effective, and the most economical force. Without the power to employ such a force in time of peace for domestic purposes, it is plain, that the government might be in danger of being over-thrown by the combinations of a single faction.

§ 1182. The danger of an undue exercise of the power is purely imaginary. It can never be exerted, but by the representatives of the people of the states; and it must be safe there, or there can be no safety at all in any republican form of government. Our notions, indeed, of the dangers of standing armies in time of peace, are derived in a great measure from the principles and examples of our English ancestors. In England, the king possessed the power of raising armies in the time of peace according to his own good pleasure. And this prerogative was justly esteemed dangerous to the public liberties. Upon the revolution of 1688, parliament wisely insisted upon a bill of rights, which should furnish an adequate security for the future. But how was this done? Not by prohibiting standing armies altogether in time of peace; but (as has been already seen) by prohibiting them without the consent of parliament. This is the very proposition contained in the constitution; for congress can alone raise armies; and may put them down, whenever they choose.

§ 1183. It may be admitted, that standing armies may prove dangerous to the state. But it is equally true, that the want of them may also prove dangerous to the state. What then is to be done? The true course is to check the undue exercise of the power, not to withhold it. This the constitution has attempted to do by providing, that "no appropriation of money to that use shall be for a longer term than two years." Thus, unless the necessary supplies are voted by the representatives of the people every two years, the whole establishment must fall. Congress may indeed, by an act for this purpose, disband a standing army at any time; or vote the supplies only for one year, or for a shorter period. But the constitution is imperative, that no appropriation shall prospectively reach beyond the biennial period. So that there would seem to be every human security against the possible abuse of the power.

§ 1184. But, here again it was objected, that the executive might keep up a standing army in time of peace, notwithstanding no supplies should be voted. But how can this possibly be done? The army cannot go without supplies; it may be disbanded at the pleasure of the legislature; and it would be absolutely impossible for any president, against the will of the nation, to keep up a standing army in terrorem populi.

§ 1185. It was also asked, why an appropriation should not be annually made, instead of biennially, as is the case in the British parliament. The answer is, that congress may in their pleasure limit the appropriation to a single year; but exigencies may arise, in which, with a view to the advantages of the public service and the pressure of war, a biennial appropriation might be far more expedient, if not absolutely indispensable. Cases may be supposed, in which it might be impracticable for congress, in consequence of public calamities, to meet annually for the despatch of business. But the supposed example of the British parliament proves nothing. That body is not restrained by any constitutional provision from voting supplies for a standing army for an unlimited period. It is the mere practice of parliament, in the exercise of its own discretion, to make an annual vote of supplies. Surely, if there is no danger in confiding an unlimited power of this nature to a body chosen for seven years, there can be none in confiding a limited power to an American congress, chosen for two years.

§ 1186. In some of the state conventions an amendment was proposed, requiring, that no standing army, or regular forces be kept up in time of peace, except for the necessary protection and defence of forts, arsenals, and dockyards, without the consent of two thirds of both houses of congress. But it was silently suffered to die away with the jealousies of the day. The practical course of the government on this head has allayed all fears of the people, and fully justified the opinions of the friends of the constitution. It is remarkable, that scarcely any power of the national government was at the time more strongly assailed by appeals to popular prejudices, or vindicated with more full and masculine discussion. The Federalist gave it a most elaborate discussion, as one of the critical points of the constitution. In the present times the subject attracts no notice, and would scarcely furnish a topic, even for popular declamation. Ever since the constitution was put into operation, congress have restrained their appropriations to the current year; and thus practically shown the visionary nature of these objections.

§ 1187. Congress in 1798, in expectation of a war with France, authorized the president to accept the services of any companies of volunteers, who should associate themselves for the service, and should be armed, clothed, and equipped at their own expense, and to commission their officers. This exercise of power was complained of at the time, as a virtual infringement of the constitutional authority of the states in regard to the militia; and, as such, it met with the disapprobation of a learned commentator. His opinion does not, however, seem since to have received the deliberate assent of the nation. During the late war with Great Britain, laws were repeatedly passed, authorizing the acceptance of volunteer corps of the militia under their own officers; and eventually, the president was authorized, with the consent of the senate, to commission officers for such volunteer corps. These laws exhibit the decided change of the public opinion on this subject; and they deserve more attention, since the measures were promoted and approved under the auspices of the very party, which had inculcated an opposite opinion. It is proper to remark, that the Federalist maintained, that the disciplining and effective organization of the whole militia would be impracticable; that the attention of the government ought particularly to be directed to the formation of a select corps of moderate size, upon such principles, as would really fit them for service in case of need; and that such select corps would constitute the best substitute for a large standing army, and the most formidable check upon any undue military powers; since it would be composed of citizens well disciplined, and well instructed in their rights and duties.

The Founders' Constitution
Volume 3, Article 1, Section 8, Clause 12, Document 29
The University of Chicago Press

Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.

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