Article 1, Section 8, Clause 15

Document 23

Joseph Story, Commentaries on the Constitution 3:§§ 1195--97


§ 1195. This clause seems, after a slight amendment, to have passed the convention without opposition. It cured a defect severely felt under the confederation, which contained no provision on the subject.

§ 1196. The power of regulating the militia, and of commanding its services to enforce the laws, and to suppress insurrections, and repel invasions, is a natural incident to the duty of superintending the common defence, and preserving the internal peace of the nation. In short, every argument, which is urged, or can be urged against standing armies in time of peace, applies forcibly to the propriety of vesting this power in the national government. There is but one of two alternatives, which can be resorted to in cases of insurrection, invasion, or violent opposition to the laws; either to employ regular troops, or to employ the militia to suppress them. In ordinary cases, indeed, the resistance to the laws may be put down by the posse comitatus, or the assistance of the common magistracy. But cases may occur, in which such a resort would be utterly vain, and even mischievous; since it might encourage the factious to more rash measures, and prevent the application of a force, which would at once destroy the hopes, and crush the efforts of the disaffected. The general power of the government to pass all laws necessary and proper to execute its declared powers, would doubtless authorize laws to call forth the posse comitatus, and employ the common magistracy, in cases, where such measures would suit the emergency. But if the militia could not be called in aid, it would be absolutely indispensable to the common safety to keep up a strong regular force in time of peace. The latter would certainly not be desirable, or economical; and therefore this power over the militia is highly salutary to the public repose, and at the same time an additional security to the public liberty. In times of insurrection or invasion, it would be natural and proper, that the militia of a neighbouring state should be marched into another to resist a common enemy, or guard the republic against the violence of a domestic faction or sedition. But it is scarcely possible, that in the exercise of the power the militia should ever be called to march great distances, since it would be at once the most expensive and the most inconvenient force, which the government could employ for distant expeditions. The regulation of the whole subject is always to be in the power of congress; and it may from time to time be moulded so, as to escape from all dangerous abuses.

§ 1197. Notwithstanding the reasonableness of these suggestions, the power was made the subject of the most warm appeals to the people, to alarm their fears, and surprise their judgment. At one time it was said, that the militia under the command of the national government might be dangerous to the public liberty; at another, that they might be ordered to the most distant places, and burthened with the most oppressive services; and at another, that the states might thus be robbed of their immediate means of defence. How these things could be accomplished with the consent of both houses of congress, in which the states and the people of the states are represented, it is difficult to conceive. But the highly coloured and impassioned addresses, used on this occasion, produced some propositions of amendment in the state conventions, which, however, were never duly ratified, and have long since ceased to be felt, as matters of general concern.

The Founders' Constitution
Volume 3, Article 1, Section 8, Clause 15, Document 23
The University of Chicago Press

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

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