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STATUS OF STATE MILITIA UNDER THE HAY BILL
NOTE in the HARVARD LAW REVIEW for December discussed
under the above caption the questions involved in the recent case of Sweetser v. Emerson and, going farther, examined into the scope and constitutional basis of the Federal authority over the National Guard assumed by the Hay Bill. Rather strangely, the discussion passes over sub silentio the many obviously questionable means of "federalization," and out of all the new Federal powers exerted by the Bill selects as constitutionally deficient the one which seems authoritatively established beyond doubt or criticism, namely, the power to draft the National Guard, or organized militia, of the several States into the Federal Army. Though the argument fails to recognize, indeed denies, the basis of such Federal authority, more strangely still it proceeds to sustain it, extraconstitutionally as it were, by resort to a theory that is destructive of all balance between the Nation and the States.
That theory, as unnecessary as unsound, merits here a moment of consideration. The proposition is that Congress is without power to provide for drafting the organized militia into the Army of the United States, because such is not one of the constitutional purposes for which the militia may be called into the Federal service. But sanction is sought for legislation thus assumed to be unconstitutional in the acceptance by the States of the Federal pecuniary aid appropriated on condition of State compliance; and thus, it is said, “the States will waive their right to object to the action of Congress under the terms thereof," and, as for the individual members of the Guard, their enlistment oath to defend the United States and obey the orders of the President "would seem to constitute an express waiver of their constitutional right to object to draft for other than the constitutional specified purposes.” Poise is likely to be lost in contemplating a statement like this:
“Congress accomplishes this result (that is, using the militia for an assumed unconstitutional purpose] by using its constitutional power to organize the militia to abolish the constitutional limitations placed
on its use of the militia. A state is given the choice of having no militia or one unprotected by constitutional guarantees. The net result is that the old sort of militia, known to the Constitution, is to be done
Such an argument clashes with reason as its consequence clashes with fundamental law. Surely neither the argument nor its consequence is appreciated. See what it means: Legislation which it was incompetent for Congress to enact, because transgressing the limit of its power and invading that expressly reserved to the States, may nevertheless be validated by being accepted or acquiesced in by State legislation which it was equally incompetent for the State to enact. Constitutional amendment by unconstitutional statute; by unlawful agreement between Congress and the State legislature; by purchase, indeed!
My interest, however, lies in the proposition that the militia cannot be drafted into the Federal army, rather than in the theory suggested to sustain it. The draft section is the capstone if not the keystone of the military structure which it was the purpose of the Bill to provide. “Federalize" was the key word of the agitation and debate which produced the legislative result, pervading the entire legislative environment. The Dick Bill had provided that the organized militia or National Guard, as such, should be available for use, like a Federal army, for general military purposes “either within or without the territory of the United States” (section 5). That declaration seemed to satisfy all (except perhaps those lawyers interested enough in the subject to read the limited purposes for which the Constitution had authorized the Federal use of the militia) until the Attorney General in 1912, concurring with the Judge Advocate General of the Army, held in a well-considered opinion that there was no constitutional warrant for such general Federal use of the militia beyond the territory of the United States. To make the militia fit and available for general military use whereever a Federal army might be called upon to execute the national will has been the object of all the agitation since, and was the chief object of the Bill under discussion. But the most extreme “federalizationist,” upon reflection, realized that the militia as such could not be so used; that the militia status served not as a basis for but a bar against such use, and that to make the militia so available
29 Op. 322.
the status of its members would have to be, not simply that of militiaman over whom the Federal government has only a limited constitutional control, but must become that of federal soldier - a member of the Army of the United States -- over whom the Federal government has exclusive and plenary control. The Bill proceeds upon a theory, heretofore unquestioned, that the militiaman is a citizen having a duty to render Federal military service which is paramount to, and therefore not incompatible with, his obligation to render local militia service, and it is upon him as a citizen of the United States that section 111 of the Bill provides for imposing in the imminence of war the Federal military status. If the enlistment obligation alone (section 70) accomplishes such a change of status immediately, then the organized militia of the several States under the Bill is something more than what is suggested, and what apparently Congress intended to suggest, as the status of the “National Guard of the United States"; it becomes indeed an Army of the United States. Perhaps such is not the legal effect of the obligation, and certainly, speaking extra-judicially, Congress did not intend it so to be. The method adopted, then, to render the organized militia of the several States available for general Federal military service for war purposes out of the territory of the United States was a draft into the Army of the United States operative upon the members of the militia, not in their status as militiamen, but in their capacity as citizens, obliged as such to render to the Nation such military service as the Nation might require. Whatever may hereafter be found as to the validity and efficacy of some of the new Federal powers asserted by the Bill, the least questionable and most effectual element of federalization is to be found in the section criticized. True, Congress may draft any of its citizens without the preliminaries established by the Act; but now it has expressed the policy of especially preparing, rendering available for use, and using the members of the organized militia to the declared national end.
It is now asserted that this cannot be; that the organized militia by virtue of its status is constitutionally exempt from service in the armies of the United States. If so, what is attempted is in violation of the constitutional right of the citizen or in derogation of the reserved rights of the States. The Nation, then, in the realm of national defense is not, as our fathers said it was, supreme; it has not the superior right to the military service of all its citizens; as
to all those who offer themselves to, and are accepted by, the several States in their own local service, it has no rights at all. Such a question is one of prime legal and political importance, exigent now. It involves a principle which applies to a wider field than the militia, and goes indeed to the vitals of the Nation. It is worthy of a lawyer's serious consideration, and it is believed that brief study and reflection will bring the conviction that the Hay Bill is not subject to criticism for this particular assertion of Federal power.
The power of Congress to raise armies finds no limitation in any quarter. It finds none in the terms of the grant or in any other provision of the Constitution. And none can be implied out of deference to State or individual right without offending reason, historical precedent and legal principle. In the international realm, preservation of the Nation and of all its constituent elements is the dominant national purpose, and the national power conferred in unrestricted terms to that end finds no logical limitation in regard for subordinate elements that have divested themselves of their separate power of protection and conferred it upon the sovereign who might the more effectually exercise it all in their behalf. Even an unrefined philosophy detects the lack of wisdom in one who would seek protection from the storm by pulling his shelter down upon him. Legislative precedents and governmental practice, Federal and State, have never recognized any such immunity in the militia status. Drafts of State troops were resorted to during the Revolution, and the Act of June 30, 1834, refers to "drafted militia" as in the service against Indians on our frontier. During the Confederation the States maintained an active militia and frequently used it to supply the requisitions made on them for regular soldiers in the continental army. In Burroughs v. Peyton, post, the court cites many instances where Virginia made up the deficiencies in her quota by requiring drafts from the militia by legislation which provided that
“Each man so drafted shall be considered to all intents and purposes as a regular soldier, and shall serve as such for three years if the war should so long continue." Throughout our history the States have recognized the feasibility of parting with their organized militia when a national crisis has
2 JOURNAL CONGRESS, 458, 459; 3 idem, 38.
demanded it. In the Civil War the States parted first with their active militia in raising their quotas for the Federal Army, and the State organizations with their members became, when mustered into the service, United States Volunteers. The same thing prevailed in the Confederacy during that period. In the War with Spain the Volunteer Army was raised in the same manner. Of course, in contemplation of law the militia has been taken not as militia, nor as militia organizations, but as individuals owing the Nation allegiance and service. Such a long-continued course of governmental conduct is not without significance.
The historic Draft Acts recognized no such theory of constitutional exemption. The Federal draft act of 1863 rendered liable to draft all able-bodied citizens of the United States, and all aliens who had declared their intention to become citizens, between twenty-one and forty-five years of age; and while providing for the acceptance of substitutes and for pecuniary commutation in lieu of service, it is a remarkable fact that the governors of the several States were the only officers of the States excepted from the provisions. The same was true of the Confederate conscript acts, and, though frequently attacked on the theory that they deprived a State of a necessary instrumentality and thus assaulted her indestructible character, the courts of the Confederate States, as will later be shown, condemned the contention. It is significant also that Federal law providing for the army, including the present National Defense Act, has never excluded members of the National Guard from enlistment in the Federal forces, although, indeed, it might be wise to do so as a matter of policy within legislative control.
Such historic considerations negative the suggestion that the draft of the organized militia into Federal armies trespasses upon the constitutional realm assigned to the State or offends against the constitutional right of the citizens comprising the militia and thus drafted.
But the dominant character of this Federal power is more firmly established on legal grounds. Judicial authorities accord in sustaining these propositions:
1. There are no limitations, express or implied, upon the Federal power to raise and support armies, or upon the method or manner of the exercise thereof; and, specifically,