Article 1, Section 8, Clause 15

Document 21

James Kent, Commentaries 1:244--50


Congress have authority to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions; and 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 the militia, according to the discipline prescribed by congress. The president of the United States is to be the commander of the militia when called into actual service. The act of 28th of February, 1795, authorized the president, in case of invasion, or of imminent danger of it, to call forth such number of the militia most convenient to the scene of action as he might judge necessary. The militia so called out are made subject to the rules of war, and the law imposes a fine upon every delinquent, to be adjudged by a court martial composed of militia officers only. These militia court martials are to be held and conducted in the manner prescribed by the articles of war, and the act of 18th of April, 1814, prescribes the manner of holding them.

During the last war, the authority of the president of the United States over the militia, became a subject of doubt and difficulty, and of a collision of opinion between the general government and the governments of some of the states. It was the opinion of the government of Connecticut, that the militia could not be called out, upon the requisition of the general government, except in a case declared, and founded upon the existence of one of the specified exigencies; that when called out, they could not be taken from under the command of the officers duly appointed by the states, or placed under the immediate command of an officer of the army of the United States. Nor could the United States lawfully detach a portion of the privates from the body of the company to which they belonged, and which was organized with proper officers. This would, in the opinion of the government of Connecticut, impair, and eventually destroy, the state militia. When the militia are duly called into the service of the United States, they must be called as militia furnished with proper officers by the state.

Similar difficulties arose between the government of the United States and that of the state of Massachusetts, on the power of the national government over the militia. Both those states refused to furnish detachments of militia for the maritime frontier, on an exposition of the constitution, which they deemed sound and just.

In Connecticut, the claim of the governor to judge whether the exigency existed, authorizing a call of the militia of that state, or any portion of it, into the service of the union, and the claim on the part of that state to retain the command of the militia, when duly ordered out, as against any subordinate officer of the army of the United States, were submitted to and received the strong and decided sanction not only of the governor and council of that state, but of the legislature itself. In Massachusetts, the governor consulted the judges of the supreme judicial court, as to the true construction of the constitution on these very interesting points. The judges of the supreme court, who were consulted, were of opinion, that it belonged to the governors of the several states to determine when any of the exigencies contemplated by the constitution of the United States existed, so as to require them to place the militia, or any part of it, in the service of the union, and under the command of the president. It was observed, that the constitution of the United States did not give that right, by any express terms, to the president or congress, and that the power to determine when the exigency existed, was not prohibited to the states, and that it was, therefore, as of course, reserved to the states. A different construction would place all the militia in effect at the will of congress, and produce a military consolidation of these states. The act of 28th February, 1795, vested in the president the power of calling forth the militia when any one of the exigencies existed, and if to that be superadded the power of determining when the casus foederis occurred, the militia would in fact be under the president's control.

As to the question how the militia were to be commanded, when duly called out, the judges were of opinion, that the president alone, of all the officers acting under the United States, was authorized to command them, and that he must command them as they were organized, under officers appointed by the states. The militia could not be placed under the command of any officer not of the militia, except that officer be the president of the United States. But the judges did not determine how the militia were to be commanded, in case of the absence of the president, and of a union of militia with troops of the United States; and whether they were to act under their separate officers, but in concert as allied forces, or whether the officer present who was highest in rank, be he of the militia or of the federal troops, was to command the whole, was a difficult and perplexing question, which the judges did not undertake to decide.

The president of the United States declared that these constructions of the constitutional powers of the general government over the militia were novel and unfortunate, and he was evidently and decidedly of a different opinion. He observed, in his message to congress on the 4th November, 1812, that if the authority of the United States to call into service and to command the militia, could be thus frustrated, we were not one nation for the purpose most of all requiring it. These embarrassing questions, and the high authority by which each side of the argument is supported, have remained to this day unsettled by the proper and final decision of the tribunal that is competent to put them to rest. The case of Houston v. Moore, is the only one in which the national command of the militia seems to have been at all a subject of judicial discussion, and that case does not touch the points at issue between the United States and the states of Massachusetts and Connecticut, though the opinion of one of the judges went far towards destroying the claims advanced on the part of those states. I do not wish to interfere in this place with vexed and undecided questions. My object, in the course of these elementary lectures, is to confine myself to a comprehensive and just survey of the principles of our government as they have been discussed, or as they have been practically explained and settled by competent authority. It may, however, be truly observed, that since the year 1812, when those questions were raised, many great and deeply interesting questions arising on the powers of the union, have been investigated and decided, and the progress of opinion, and the course of those decisions, have been in favour of a pretty liberal and enlarged construction of the constitution of the United States. The principles of the government, as now understood, would be much more favourable than they were in 1812, to the claim of the President of the United States, to judge exclusively and authoritatively when the militia were to be called out into the service of the union.

The case of Houston v. Moore settled some important questions arising upon the national authority over the militia. The acts of congress already referred to, and the act of 8th March, 1792, for establishing a uniform militia, were considered as covering the whole ground of congressional legislation over the subject. The manner in which the militia were to be organized, armed, disciplined and governed, was fully prescribed; provision was made for drafting, detaching and calling forth the state quotas, when requested by the president. His orders were to be given to the chief executive magistrate, or to any militia officer he might think proper. Neglect or refusal to obey his orders was declared to be a public offence, and subjected the offender to trial and punishment, to be adjudged by a court martial, and the mode of proceeding was perspicuously detailed.

The question before the Supreme Court of the United States was, whether it was competent for a court martial, deriving its jurisdiction under state authority, to try and punish militia men drafted, detached and called forth by the president into the service of the United States, and who had refused or neglected to obey the call. The court decided, that the militia, when called into the service of the United States, were not to be considered as being in that service, or in the character of national militia, until they were mustered at the place of rendezvous, and that until then, the state retained a right, concurrent with the government of the United States, to punish their delinquency. But after the militia had been called forth, and had entered into the service of the United States, their character changed from state to national militia, and the authority of the general government over such detachments was exclusive. Actual service was considered by congress as the criterion of national militia, and the place of rendezvous was the terminus a quo the service, the pay, and subjection to the articles of war were to commence. And if the militia, when called into the service of the United States, refuse to obey the order, they remain within the military jurisdiction of the state, and it is competent for the state to provide for trying and punishing them by a state court martial, to the extent and in the manner prescribed by the act of congress. The act of Pennsylvania of 1814, provided for punishing, by a state court martial, delinquent militia men, who were called into the service of the United States, and neglected or refused to serve; and they were to be punished by the infliction of the penalties prescribed by the act of congress, and such an act was held not to be repugnant to the constitution and laws of the United States. It was the lawful exercise of concurrent power, and could be concurrently exercised by the national and state courts martial, as it was authorized by the laws of the state, and not prohibited by those of the United States. It would remain to be so exercised, until congress should vest the power exclusively elsewhere, or until the states should divest their courts martial of such a jurisdiction. This was the decision, in the first instance, of the supreme court of Pennsylvania; and it was affirmed, on appeal, by the majority of the Supreme Court of the United States.

The Founders' Constitution
Volume 3, Article 1, Section 8, Clause 15, Document 21
The University of Chicago Press

Kent, James. Commentaries on American Law. 4 vols. New York, 1826--30.

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