ARMED FORCES AND THE MILITIA
PART 2 of 2
Dr. Edwin Vieira, Jr.,
May 26, 2015
ARMED FORCES AND THE MILITIA
Dr. Edwin Vieira, Jr.,
To be sure, one must take seriously the objection that extraordinary situations may arise “in the Course of human events” when and where only some “martial” institution can adequately execute the “law”, and that this possibility must somehow justify some form of “martial law” administered by America’s Armed Forces, notwithstanding the Declaration of Independence’s unqualified animadversions on “martial law” administered by Britain’s “Standing Armies”. Obviously, though, the great statesmen who subscribed to the Declaration, along with the other enlightened patriots of that time, were not unaware of this seeming paradox—or of how to resolve it.
The solution to the apparent problem of “martial law” is found, in pellucid terms, in the Constitution. No spurious distinction between America’s Armed Forces of today and Britain’s “Standing Armies” of yesteryear need be attempted. For “martial law” administered by Americans can no more claim a place within the Constitution than “martial law” as administered by the British found favor in the Declaration. That is, as a matter of constitutional law, “martial law” in that sense can find no place at all.
As the Preamble to the Constitution attests, “WE THE PEOPLE * * * ordain[ed] and establish[ed] th[e] Constitution”. However, WE THE PEOPLE enjoyed the legal authority to do so only because the Declaration of Independence “solemnly publish[ed] and declare[d], That the[ ] United Colonies are, and of Right ought to be, FREE AND INDEPENDENT STATES; * * * and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do”. But “may of right do” in accordance with what standards of “right”? Obviously, the standards established by “the Laws of Nature and of Nature’s God” which, as the Declaration explained, alone “entitle[d]” Americans “to assume among the powers of the earth, [a] separate and equal station”. Those “Laws” establish that “Governments are instituted among Men, deriving their just powers”—and only “just powers”—“from the consent of the governed”. Even the People themselves cannot consent to be governed by any “Form of Government” purportedly vested with “[un]just powers”. (Which, of course, is why the Preamble lists “establish[ing] Justice”, not “imposing Injustice”, as one of the Constitution’s six goals.)
Plainly enough, America’s Founders did not consider “martial law” such as George III attempted to fasten upon them to be a “just power” under “the Laws of Nature and of Nature’s God”, or they would not have catalogued and condemned it in the Declaration of Independence as part of “a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny” on the King’s part. Therefore, imposing “martial law” of that ilk on America’s citizenry cannot be included within the “Acts and Things” which the Declaration asserted that “Independent States may of right do”. As an unjust power, it could not have been delegated to any “Form of Government” by “the consent of the governed” in the late 1700s—neither by WE THE PEOPLE to their State governments in the several States’ constitutions, nor by WE THE PEOPLE to the government of the Union in the Constitution of the United States. And because a power to impose “martial law” could not have been delegated to any “Form of Government” in America then, no “Form of Government” in America can claim to exercise such a power now. “Martial law” is as morally, politically, and legally impossible under the Constitution today as it was impossible under the Declaration of Independence in 1776.
Nonetheless, the Constitution does provide for certain “martial” institutions to which it assigns the authority, responsibility, and capability “to execute the Laws of the Union” “when called into the actual Service of the United States”: namely, “the Militia of the several States”. U.S. Const. art. I, § 8, cls. 15 and 16; and art. II, § 2, cl. 1. It delegates no such authority or responsibility to the Armed Forces, though. See U.S. Const. art. I, § 8, cls. 12 through 14; and art. II, § 2, cl. 1. So, if “martial law” is defined in general terms as the execution of the “Laws of the Union” (or of the several States each within her own jurisdiction) by a “martial” institution, then the only institutions constitutionally entitled, and required, to engage in such execution are “the Militia of the several States”, either “when called into the actual Service of the United States” or otherwise in the performance of duties mandated to them by their own States.
By delegating to the Militia—and to the Militia alone—the right, power, and duty to execute the laws, the Constitution solves the apparent paradox of “martial law” mentioned above. For, although the Militia are governmental institutions of the States, and permanent components of the federal system, they are not “standing armies”. Perhaps nothing makes this dichotomy clearer than Article 13 of Virginia’s original Declaration of Rights in 1776: “That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty”. Similarly, the Second Amendment declares “well regulated Militia” to be “necessary to the security of a free State”. So the “law” executed by the Militia, even in a “martial” fashion were the circumstances to warrant it, would always be executed by THE PEOPLE themselves for the ultimate purpose of securing their own freedom.
The problem which confronts America today is that, if constitutional “martial law” were ever needed in response to some major nationwide crisis, constitutional “martial law” could not be had. For the constitutional “Militia of the several States”, for all intents and purposes, do not exist—and therefore cannot be “called into the actual Service of the United States” in order “to execute the Laws of the Union”, or called forth to fulfill the analogous duty for their States. Some Americans have voluntarily enrolled in the National Guard, which a statute deceptively denominates as “the organized militia”, when actually it is no “militia” at all—whereas all other Americans who are eligible for service in the Militia have been consigned by that same statute to what it calls “the unorganized militia”. See 10 U.S.C. § 311. Relevant statutes of the States follow the same pattern. As the name implies, “the unorganized militia” is precisely that: unorganized, unarmed, undisciplined, untrained, and ungoverned. Contrast U.S. Const. art. I, § 8, cls. 15 and 16. But, as American legal history proves beyond any possible doubt, an “unorganized militia” is as much of a contradiction in terms as a “square circle”—and therefore is a constitutional impossibility. (See my book The Sword and Sovereignty.)
What obviously needs to be done in order to forefend the danger of “martial law” of the sort denounced by the Declaration of Independence, as well as to provide for the possibility that a “martial” execution of the laws allowable under the Declaration and the Constitution may become necessary in this country the not-too-distant future, is for the “martial” institutions which rogue public officials expect will impose “martial law” on common Americans—that is, the Armed Forces—to state publicly, categorically, and repeatedly that: (i) the imposition of “martial law” in any form is not and cannot be the constitutional mission of the Armed Forces; and (ii) execution of “the Laws of the Union” and of the several States in a “martial” fashion under exigent circumstances is the constitutional prerogative of “the Militia of the several States”, and only the Militia. Inasmuch as no one is better positioned at the present time to make this clear to legislators and the general public than are the Armed Forces themselves, it is their duty to do so.
II. Revitalization of “the Militia of the several States” is a matter of practical necessity. Unfortunately, even with a constitutional principle in one hand, today one still needs an Abraham Lincoln Federal Reserve Note in the other hand to be able to buy a small espresso in a fashionable coffee shop. That is, constitutional principles command very little purchasing power in the contemporary “real world” of egotism, materialism, and hedonism, which allow only two notes on their discordant scale: namely, “me...me...me” and “dough...dough...dough”. So even the Armed Forces will need some very practical incentives to promote revitalization of the Militia. Some of the most important of these, however, are not difficult to identify.
a. Just as an authority “to execute the Laws of the Union” forms no part of the Armed Forces’ express constitutional mandate, so too does it fall outside, and would be expected to hinder the fulfillment, of their vital practical mission to deter aggressors in foreign venues and to defeat them if deterrence fails and Congress must “declare War”. (Surely it is no accident that Congress’s power to do so, set out in Article I, Section 8, Clause 11 of the Constitution, is immediately followed by its powers “[t]o raise and support Armies” and “[t]o provide and maintain a Navy” in Clauses 12 and 13.) Revitalization of “the Militia of the several States” will enable the Armed Forces to devote their undivided attention to their constitutionally proper rôle, relieved of the possible burden of being diverted into domestic difficulties through deployments that smack of “martial law”. The Militia would “secure the home front” by maintaining law and order domestically in its proper form: namely, what the Second Amendment denotes as “a free State”.
b. In the event of an unavoidable nationwide domestic crisis, such as the collapse of the monetary and banking systems, revitalization of the Militia would be requisite, for the obvious reason that the Armed Forces could never deploy enough “boots on the ground” to reëstablish and then maintain law and order in every locality where significant social unrest arose and civil disobedience broke out. Part of the explicit constitutional authority of the Militia is to “suppress Insurrections”. U.S. Const. art. I, § 8, cl. 15. And enrollments in revitalized Militia would outnumber by far the total possible enlistments in the Armed Forces. Even if the Armed Forces could mobilize forces arguably sufficient in raw numbers to quell violent disturbances throughout the entire country, those forces would face innumerable, often novel, and predicably insuperable difficulties in dealing with other untold problems peculiar to the thousands of unfamiliar Localities they would be called upon to police. Revitalized Militia, in contrast, would be composed entirely of Local citizens—raised, organized, specially trained, and always deployed at the Local level—and imbued with intimate knowledge of and sympathy for their Localities and the people who lived there, which would enable them to deal intelligently and effectively with all of the disparate situations which arose in different areas of the country.
c. A collapse of the monetary and banking systems is not the only conceivable nationwide or regional catastrophe which might threaten this country in the near future. Consideration must also be given to pandemics, famines, natural disasters, and massive industrial failures or accidents, to name but a few. The Armed Forces are not prepared, and therefore cannot be expected—let alone ordered—to deal with all of the complex challenges each and every one of these events could bring forth. Indeed, the Armed Forces can never be prepared for such duty, because they have few, if any, places in their tables of organization for people with the various kinds of highly technical knowledge and specialized experience which would be vital to draw upon in the event of such crises. In contrast, being composed of just about every adult American not enrolled in the Armed Forces, “the Militia of the several States” would not just as a matter of fact have access to, but also as a matter of law could call upon and dispose of, almost the entirety of national talent in every relevant field—with many, if not the vast majority, of these people already resident in, and therefore familiar with, precisely those areas in which the crises would most seriously manifest themselves.
d. Even in the event of an actual invasion of the United States, the Armed Forces would need support from the Militia. That support would be forthcoming, because one of the explicit constitutional responsibilities of the Militia is to “repel Invasions”. U.S. Const. art. I, § 8, cl. 15. Moreover, that support would likely be necessary. For any initially successful invasion would involve hordes of enemy troops which would have to be fought with every tactic available, from direct counterattack at the invasion sites to guerrilla and partisan warfare throughout every part of the country into which the invaders penetrated—which types of warfare would require full and unstinting participation by the Militia.
To expect such a “Red Dawn” scenario always to be confined to movie theaters is naïve in an era in which America’s borders apparently cannot be made secure against even an invasion of illegal aliens composed almost exclusively of unarmed men, women, and children. (And, by revitalization of the Militia, even these now-porous borders could finally be sealed, without deployment of the Armed Forces.)
A final note of concern and caution. In the present state of political, economic, and social uncertainty and unrest throughout America, the Armed Forces will surely forfeit the confidence of every thinking citizen if, instead of supporting revitalization of “the Militia of the several States”, they attempt to impose “martial law” anywhere within this country when some major crisis breaks out (for which eventuality many observers believe they are training right now). For, by such behavior, they will prove “to a candid world”: (i) that they are politically unreliable “Standing Armies” with scant concern for the Constitution; and, worse yet, (ii) that they are willing to aid and abet America’s dysfunctional and disloyal political-cum-economic Establishment in “affect[ing] to render the Military independent of and superior to the Civil power” throughout this land—even if that turns out to be part and parcel of the Establishment’s “design to reduce the[ People] under absolute Despotism”. Confidence so lost can never be regained. Once the Armed Forces have alienated themselves from the people, the full consequences of their breach of trust may be unpredictable. But they surely will be prove to be undesirable in the extreme.
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Edwin Vieira, Jr., holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School).
For more than thirty years he has practiced law, with emphasis on constitutional issues. In the Supreme Court of the United States he successfully argued or briefed the cases leading to the landmark decisions Abood v. Detroit Board of Education, Chicago Teachers Union v. Hudson, and Communications Workers of America v. Beck, which established constitutional and statutory limitations on the uses to which labor unions, in both the private and the public sectors, may apply fees extracted from nonunion workers as a condition of their employment.
He has written numerous monographs and articles in scholarly journals, and lectured throughout the county. His most recent work on money and banking is the two-volume Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution (2002), the most comprehensive study in existence of American monetary law and history viewed from a constitutional perspective. www.piecesofeight.us
He is also the co-author (under a nom de plume) of the political novel CRA$HMAKER: A Federal Affaire (2000), a not-so-fictional story of an engineered crash of the Federal Reserve System, and the political upheaval it causes. www.crashmaker.com
He can be reached at his new
In the event of an unavoidable nationwide domestic crisis, such as the collapse of the monetary and banking systems, revitalization of the Militia would be requisite, for the obvious reason that the Armed Forces could never deploy enough “boots on the ground” to reëstablish and then maintain law and order in every locality where significant social unrest arose and civil disobedience broke out.