Armies…. being necessary to to the security of a free State….

This clever juxtaposition of the Article I word of "armies" and the Second Amendment's preamble on militias by Akhil Reed Amar in his latest book on the Constitution, The Unwritten Constitution, serves to illustrate the concept of America's unwritten Constitution through deed and action ("We the People .. do ordain and establish…") that Amar seeks to impart in the second chapter of his book. In this case, the national draft is a constitutional exercise of Congress' power to raise armies granted in Article 1 because of the enactment played out in the adoption of the Fourteenth and Fifteenth Amendment. After the Civil War, the Union Army played a vital role in reestablishing republican government in the southern states that had rebelled against the constitutionally elected government of the United States and the states that had remained loyal to the Union.

Amar's argument is that the events and acts that lead up to the proposal and ratification of the Constitution and its amendments compose part of the unwritten Constitution that, interwoven with the actual written Constitution, makes up the foundational fabric of American law. He examines the principle by proposing that the Reconstruction Congress reinterpreted the expectations of the Founders underlying the militia system. The militia system had been established by the Founders to be locally-based and under the control of the States in order to preserve the People's freedoms and liberties from centralized tyrants. However, by the 1860's, the militia system had been turned into an instrument of resistance against the federal government and Civil War erupted, turning the Founder's experiment in republican government on its head. The Union Army, an Army which was composed of conscripted soldiers up until the end of the Civil War, helped to bring the Reconstructed South into the Union, and part of their readmission was the ratification of the Fourteenth Amendment.

So because of the events and actions behind the adoption of this important Amendment, the Constitution was reconstructed and the Army, an institution of suspicion in late 18th century America, was given a new place of trust and prominence because of its role in freeing the slaves and the hold slavery had on the liberties and humanity of all Americans.

 

Amar's Bill of Rights: The Military Amendments

In considering the constitutional state of war powers a few years back, I worried that "executive excesses would probably be tied to [the president using the military domestically], as might be the case if a President sought dictatorial powers through the imposition of martial law." At the time, I was not prepared to offer a structural solution to prevent such a calamity, and for good reason. Smarter people than I have pondered this problem before me, including the Founding Fathers.

Their solution to the question was in the way they structured the Union's military system. A standing, professional army as a dangerous concept to the Founding generation, having just fought the Revolutionary War to throw off the oppresive yoke of the British. Alexander Hamilton notes the danger in The Federalist 28:

 

[I]f the persons instrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which [the nation] consists, having no distinct government each, can take no regular measures for defense. The citizens must rush tomultuously to arms, without concert, without system, without resource....

The answer for the Founders was to be found in federalism, and the militia under the command and control of the state governments. Jon Roland helpfully reviews the original constitutional meaning of "militia", which is important when considering that the Constitution in Article 1, section 8, clause 16 gives States the power of "Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."

Amar expands this thought on page 50 of his book The Bill of Rights:

 

in the event of central tyrrany, state governments could do precisely what colonial governments had done at Lexington and Concord and Bunker Hill: organize and mobilize their citizens into an effective fighting force capable of besting even a large standing army.

Amar quotes Madison in The Federalist 46, which is worth repeating here to drive home the point of just how much the Founders were counting on the local militia:

 

[T]he State governments with the people on their side would be able to repel the danger.... [A standing army] would be opposed [by] a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence.

The standing, professional army of the eighteenth century was often a hoarde of foreign mercenaries that had no allegiance or fealty to the people in the local countryside where they were ordered to fight. The very structure of the militia meant that it was composed of family members and neighbors who lived and worked together. Already tightly knit and bound to return to life together after war, the militia was bound together by trust and need, so picking their own leaders among them helped tighten their cohesion.

Yet this federalism check on military adventurism by the central government did not quell the objections of the Anti-Federalists. Many pointed out that Congress still had power "to provide for organizing, arming, and disciplining, the Militia." The Second Amendment was designed to limit congressional manipulation of the militia and leave them available to arming by the State governments.

While the meaning of militia has morphed over 200 years, the core concepts of the Second Amendment are still applicable: the militia was composed of all the people capable of bearing arms, so "the people", subjects of the federalism-based rights of the First Amendment, are also the subjects of the Second Amendment. And, as Amar argues, the "well-regulated" can't mean the power to disarm, as this was the very power it sought to keep away from Congress. Localism was the very heart of the militia system and for that reason, along with the experiences of the ratifiers of the Fourteenth Amendment that relied on standing armies to preserve the Union against the tyranny and abuses of localities and states (ironically the opposite experience of the Founders), there is good reason to incorporate the Second Amendment against the states.

As an aside, Amar also argues that the conscription is unconstitutional because Congress circumvents the power of the State governments to appoint the officers of the militia and training the militia. "Under this reading, the federal government cannot directly force ordinary citizens into it's army, but state governments can conscript, organize, and train their respective citizens -- the militia -- who can in times of emergency be called into national service." (p 53)

The Third Amendment also acts to support civilian values against an overbearing military, working to subordinate the military to the civil power. Amar writes:

 

No standing army in peacetime can be allowed to dominate civilian society, either openly or by subtle intimidation. The Second Amendment's militia could thwart any open military usurpation - say, a siege - but what about more insidious forms of military occupation, featuring federal soldiers cowing civilians by psychological guerilla warfare, day by day, house by house? Bostonians who had lived under the hated Quartering Act of 1774 knew that this was no hypothetical. Hence the Third Amendment was needed to deal with military threats too subtle and stealthy for the Second's "well-regulated Militia." (p. 59)

Modern jurisprudence has a tendency to use the Third Amendment to construct rights of privacy for the individual, but the original context of the Third Amendment placed further limits on Congress' conscription power and further enforced separation of powers between the legislative and the executive. Congress' conscription power was restricted because if civilians could not be impressed upon to limited service as Innkeepers and cooks for soldiers, then what sense does it make that civilians can be pressed into full military service? Separation of powers were further defined because it took Congress, not the executive, "in a manner prescribed by law" to conscript a person's house.

So we see that the Second and Third Amendments work together to subordinate the military to the civilian power and to place checks against the executive's misappropriation of the military for his own purposes. Combined with Congress' complete power to raise and govern the military and to declare war, the Founders erected a wonderfully symbiotic system to ensure that all parts of society truly believed war was necessary before the nation was committed to war and, once it was, that the military would be used in a responsible manner.

Some argue that is was necessary for the United States to evolve away from the militia system in order to become a great power. The Bible reminds us that Israel abandoned its reliance on God to anoint a King "like all the nations." If we want to wield power "like all the nations," then in order to not become serfs to tyranny "like all the nations", the people of the United States must insist on a symbiotic system of checks and balances around our modern-day war powers for our military arrangements, just as the Founders did for their own. Yet another lesson we have forgotten in our modern rush for convenience, efficiency and power.

 

"Declare war" is synonymous with going to war

Congress has the sole power to decide when, where, against whom, and to what extent the United State will go war, according to this paper from Saikrishna Prakash: Unleashing the Dogs of War: What the Constitution Means by "Declare War". For the Founders, Prakash argues that there was more than the formal way to declare war that we typically think of today. Attacking an enemy was considered a declaration of war, so the Constitution leaves it solely to Congress to decide whether the nation goes to war. The President, as Commander-in-Chief, has standing constitutional authority to defend the property, territory and people of the United States, but he does not have inherent authority to take offensive actions without authorization from Congress.

The paper does a superb job of looking at what "declare war" meant in the 17th through early 19th centuries and why the "formalist" theory of the war power - that the President is free to wage war as he sees fit and that Congress' ability to declare war only changes the formal state of relations between two nations and triggers certain legislation at home - doesn't make any sense and falls under its own contradictions.

If we held to this construction of war powers today, much of the consternation this blog has expressed regarding the war power would be moot.