"Recall the Militia" reference.

[Jeff White]

The Militia Act of 1792 did not alter the balance of power between the states and the federal government. The federal government already had the constitutional power to call-up the militia.

Then the militia could not have been a check on the federal government.

Jeff

 

[Ieyasu]

We've now come full circle. I already posted a quote from Supreme Court Justice Joseph Story, LegalEagle mentioned Madison's Federalist 46, Hamilton in Federalist 29 wrote that the militia was the "best possible security" against a standing army, and of course there are more quotes.

So to repeat, you've provided no contrary evidence to the fact that the Founders and their contemporaries considered the militia a check against a standing army and usurpations.

 

[Jeff White]

If the founders intended the militia to be a check on the federal government they wouldn't have given the federal government control of it in the Constitution and the Militia Act of 1792.

I don't care what the federalist papers said. When the Constitution was ratified, it said the militia could be called up by the federal government. When the Militia Act of 1792 was passed, it also gave the president the power to call up the militia.

A force the president controls, cannot be a check against his abuse of power. If a president wanted to usurp power, all he would need to do would be to call the militia into federal service first, move it out of it's home state to meet whatever threat and then usurp power.

If the founders had intended the militia to be an armed force to keep him from doing that, all they would have had to do, was keep the president from lawfully calling up the militia. They didn't do that.

The Constitution and all the laws pertaining to the militia, from the militia act all the way up to the last reorganization of the Army that moved the combat units from the USAR into the National Guard, put control of all military power totally in the hands of the federal government.

The militia is part of the government. It is not and never has been, despite the ranting of the so called modern militia movement a check on federal power.

Jeff

 

[Ieyasu]

I don't care what the federalist papers said.

That's part of the problem...

When the Constitution was ratified, it said the militia could be called up by the federal government.

And so did the Federalist papers. Hamilton and Madison explained and addressed that concern.

When the Constitution was ratified, it said the militia could be called up by the federal government.

Once again, I already countered this argument, and so did the Federalist papers. Once again, your counter only addresses your opinion as to whether you think it's effective or not. Hamilton and Madison disagree with you. Regardless of what you think, you can't claim that it was a myth. You can claim it wasn't an effective structure, but it's a fact that it was intended to provide a check. The historical record is there.

 

[Jeff White]

Quote:
I don't care what the federalist papers said.

That's part of the problem...

The federalist papers and the antifederalist papers were opinion pieces. If they did in fact intend for the militia to be a check on federal power, they neglected to put it into either the Constitution or the Militia Act of 1792.

I find it hard to believe that the men who so carefully crafted all the checks and balances into our founding documents neglected to make the militia a check on the federal government, if that is what they truly intended to do.

They had just come out on top of a bloody revolt, they certainly knew about the use of force to achieve political goals. Those very same men wrote and passed the Sedition act of 1798.

http://www.constitution.org/rf/sedition_1798.htm

SEDITION ACT.

An act in addition to the act intituled, "An act for the punishment of certain crimes against the United States."

[Approved July 14, 1798.]

ABSTRACT.

SECTION I. Punishes combinations against United States government.
1. Definition of offence:

Unlawfully to combine or conspire together to oppose any measure of the government of the United States, &c. This section was not complained of.

2. Grade of offence:

A high misdemeanour.

3. Punishment:

Fine not exceeding $5000, and imprisonment six months to five years.

SECTION II. Punishes seditious writings.
1. Definition of offence:

To write, print, utter or publish, or cause it to be done, or assist in it, any false, scandalous, and malicious writing against the government of the United States, or either House of Congress, or the President, with intent to defame, or bring either into contempt or disrepute, or to excite against either the hatred of the people of the United States, or to stir up sedition, or to excite unlawful combinations against the government, or to resist it, or to aid or encourage hostile designs of foreign nations.

2. Grade of offence:

A misdemeanour.

3. Punishment:

Fine not exceeding $2000, and imprisonment not exceeding two years.

SECTION III. Allows accused to give in evidence the truth of the matter charged as libellous.
SECTION IV. Continues the Act to 3d March, 1801.

SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled. That if any persons shall unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States, from undertaking, performing, or executing his trust or duty: and if any person or persons, with intent as aforesaid, shall counsel, advise, or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not, he or they shall be deemed guilty of a high misdemeanour, and on conviction before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding five thousand dollars, and by imprisonment during a term of not less than six months, nor exceeding five years; and further, at the discretion of the court, may be holden to find sureties for his good behaviour, in such sum, and for such time, as the said court may direct.

SECT. 2. And be it further enacted, That if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered, or published, or shall knowingly and willingly assist or aid in writing, printing, uttering, or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either House of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States; or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the Constitution of the United States; or to resist, oppose, or defeat any such law or act; or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

SECT. 3. And be it further enacted and declared, That if any person shall be prosecuted under this act for the writing or publishing any libel aforesaid, it shall be lawful for the defendant, upon the trial of the cause, to give in evidence in his defence, the truth of the matter contained in the publication charged as a libel. And the jury who shall try the cause shall have a right to determine the law and the fact, under the direction of the court, as in other cases.

SECT. 4. And be it further enacted, That this act shall continue and be in force until the third day of March, one thousand eight hundred and one, and no longer: Provided, That the expiration of the act shall not prevent or defeat a prosecution and punishment of any offence against the law, during the time it shall be in force.

If I remember my history right, the act was passed by the Federalists. It seems they were pretty intent back in those days about keeping themselves in power. So if the Federalists wanted to make the militia an armed force to keep the federal government in check, why did they sponsor and pass a law restricting political speech?

Politics in those days was just as nasty as it is today. Like I said before, the Federalist Papers and the Anti-Federalist Papers were opinion pieces published to sway public opinion to one side or the other. Is it so inconceivable to think that the references to the militia being a check on the federal government were published to help win people over to the federalist side? After all the Constitution and the Militia Act of 1792 both put control of the militia squarely in the hands of the president.

Politics is the art of the possible. It was the same back then. What makes you think that those passages weren't the same political pablum we get from our politicians now? Tell you one thing and do something else....That never happens in American politics does it?

Hate to tell you this, but it's been happening in American politics since the country was founded.

Jeff

 

[ctdonath]

you've provided no contrary evidence to the fact that the Founders and their contemporaries considered the militia a check against a standing army and usurpations.

...except for the fact that the Founders were a militia which very decisively acted as a check against a standing army and (what amounts to) usurpations. That's why we call them "Founders", not "subjects".

Of course, on the whole, a militia is expected to work with the government of the people and not just be an antagonistic rabble looking for any excuse to overthrow a legitimately elected and constitutionally empowered leadership. That's why the Constitution deliberately grants Congress a power to organize, equip and train the militia (as separate from the standing army).

 

[Jeff White]

..except for the fact that the Founders were a militia which very decisively acted as a check against a standing army and (what amounts to) usurpations. That's why we call them "Founders", not "subjects".

The founders formed a standing army known as the Continental Army. It was those regular soldiers who defeated the British Expeditionary Force, not the militia. It is a popular myth that the British Army in America was defeated by farmers and blacksmiths. It was defeated by professional soldiers of the Continental Army and the professional soldiers of France.

Jeff

 

[Ieyasu]

The federalist papers and the antifederalist papers were opinion pieces. If they did in fact intend for the militia to be a check on federal power, they neglected to put it into either the Constitution or the Militia Act of 1792.

This is bordering on the absurd. The checks and balances are encoded in the law.

Any commentary offered on pending or enacted legislation is an "opinion" piece. Was Madison a liar? (Rhetorical question)

Originally you used a very strong word, "myth." You have failed to prove your case since there are plenty of writings to the contrary. Madison in #46 argues the case for the militia being a sufficient check. I'm not going to repeat his arguments here. Go look them up and rebutt them. No matter which way the federalists turned, the anti-federalists would have protested.

Had the federalists left the militia immune from federal call-up the anti-federalists would have howled that the federalists intended to ignore the state militias and rely on a standing army.

If I remember my history right, the act was passed by the Federalists

The Federalist party was a different entity from the federalists who favored a union. In other words not all federalists were members of the Federalist party. For example Madison and Jefferson founded the Republican party.

Like I said before, the Federalist Papers and the Anti-Federalist Papers were opinion pieces published to sway public opinion to one side or the other. Is it so inconceivable to think that the references to the militia being a check on the federal government were published to help win people over to the federalist side?

Of course the purpose of the papers was to sway public opinion. That doesn't mean their contents were false. Madison's arguments are quite convincing (and I believe, sincere).

I also posted quotes after the constitution was passed showing that people continued to believe the militia acted as a check. No check is perfect.

And as I stated before, a decent argument could be made that not subjecting the state militia to call-up could have adverse affects for the state militia as well. But that is irrelevant.

It's simply erroneous to have used the term, "myth," in this context. Madison makes an excellent argument, and subsequent to the ratification of the constitution, others published the same sentiments regarding the militia.

When you use the term myth, that implies there is simply no case to support the contention. Yet there is plenty of evidence to support it. Not only from the quotes, but from the Constitution's structure itself.

I also provided a clear cut case where the militia was going to be deployed as a check. Whether it would have worked or not, again is irrelevant to the assertion that the concept or intention was a myth.

Edited to add:
In fact the one instance I supplied (where the governors were going to call out the militia), alone, rebuts the contention that the militia was not viewed as a check.

 

[Ieyasu]

The federalist papers and the antifederalist papers were opinion pieces

It has a quality of legitimacy, of authority and authenticity, that gives it the high status of a public document, one to which, as Thomas Jefferson put it, "appeal is habitually made by all, and rarely declined or denied by any" as to the "genuine meaning" of the Constitution.

The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our Constitution, and is appealed to by all parties in the questions to which that instrument has given birth. . . . "
--- The U.S. Supreme Court in Cohens v. Virginia (1821)

 

[Jeff White]

The checks and balances are encoded in the law.

Which federal law says the militia is a check on the federal government? You can't show it to me because it's not there. Not in Article 1 section 8:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

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 Militia according to the discipline prescribed by Congress;

Not in Article 2 Section 2:

Section. 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Nor in the Militia Act of 1792:
http://www.constitution.org/mil/mil_act_1792.htm

You cannot show me one line in the Constitution, the Militia Act of 1792 or in any subsequent legislation that says the militia is or was intended to be a check on the federal government. Because it's not there.

No matter which way the federalists turned, the anti-federalists would have protested.

Makes my case. The writings you reference that show the militia as a check on the federal government were nothing more then the 1700s equivalent of op-ed pieces.

It has a quality of legitimacy, of authority and authenticity, that gives it the high status of a public document, one to which, as Thomas Jefferson put it, "appeal is habitually made by all, and rarely declined or denied by any" as to the "*genuine meaning*" of the Constitution.

They were not initially published as one document. They were published in various newspapers and flyers during the debate over the Constitution. Just as the Anti-Federalist papers were.

The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our Constitution, and is appealed to by all parties in the questions to which that instrument has given birth. . . . "
--- The U.S. Supreme Court in Cohens v. Virginia (1821)

What else does the Court have to go on when looking at what the men who wrote the Constitution intended, but their writings?

Is it your contention that they just omitted the part about the militia being a check on the federal government, but it really was supposed to be because Madison said so in Federalist 46 and Hamilton said it in Federalist 29? Or is this:

No matter which way the federalists turned, the anti-federalists would have protested.

It's my opinion that Madison and Hamilton made the statements about the militia being a check on the federal government in order to sway votes. It was not codified anywhere.

There were fierce debates over the Constitution. We should never look at the Federalist Papers and Anti-Federalist Papers with the same reverence we look at the Constitution. They were written to persuade people to one side of the debate or the other. I don't think it's rational to take something that was mentioned in the Federalist Papers, but didn't make it into the Constitution or any subsequent legislation and say that the Constitution means that, when it clearly doesn't. The bone that was thrown to the Anti-Federalists was the governors appointing the officers of the militia.

When they gave the president command of the militia and congress the power to train and equip it, they took operational control away from the governors. In 1861 when the Southern states seceded, they had to seize the Federal Arsenals in their states to arm and equip their militias. History shows how that turned out.

Jeff

 

[gattsuru]

A force the president controls, cannot be a check against his abuse of power.

There are times when that seems true, but others where it obviously is not.

The militia may well be under the sway of the Federal government and state government, but that doesn't mean much on its own. A well-trained group of individuals capable of thinking for themselves and with the ability to put a chunk of lead through a watermelon from a thousand feet make you think twice about doing something stupid.

 

[Ieyasu]

Quote:
The checks and balances are encoded in the law.

Which federal law says the militia is a check on the federal government?

The fact that the militia can only be called under specific conditions. The remainder of the time the militia is under the control of the states. Not all reasons or rationales for passing legislation are going to be specifically stated.

No matter which way the federalists turned, the anti-federalists would have protested.

Makes my case.

The anti-federalists would have made specious claims either way. You have still failed to prove your myth idea.

When they gave the president command of the militia and congress the power to train and equip it, they took operational control away from the governors.

No, not at all times and not all control. Only under certain enumerated circumstances was the militia allowed to be called.

Once again, both before and after ratification, many considered the militia a check against the federal government. That alone negates your contention of myth.

Further as mentioned several times, "[t]he Governors of Virginia and Pennsylvania were ready to call out the militia if the Federalists in Congress usurped the election of 1800 and blocked the selection of Thomas Jefferson or Aaron Burr as president."

Thus, it's a fact that some regarded the militia as a check against the federal government. Whether it would have succeeded is irrelevant. Once again you have failed to provide a single shred of evidence to contradict the fact that not only did many consider the militia a check against the federal government, but they were ready and willing to deploy it.

 

[Ieyasu]

A well-trained group of individuals capable of thinking for themselves and with the ability to put a chunk of lead through a watermelon from a thousand feet make you think twice about doing something stupid.

Kind of like what Madison said.

 

[Jeff White]

Once again you have failed to provide a single shred of evidence to contradict the fact that not only did many consider the militia a check against the federal government, but they were ready and willing to deploy it.

And you have failed to provide a shred of evidence that what many people thought the militia was, was ever codified into law....

Only one time in our history was the militia ever deployed against federal troops. That was after the federal troops invaded the new Confederate States of America. So in that case it wasn't really the militia specified in the Constitution, but the militia of another nation.

Saying something dozens of times doesn't make it so. During this discussion your argument has changed from the militia as a check against the federal government, being codified into law, to many people considering it a check against the federal government. It's not true that it was in fact a check against the federal government, isn't myth defined as a popular belief that isn't true?? I guess we'll have to agree to disagree.

Jeff

Jeff

 

[Ieyasu]

It's not true that it was in fact a check against the federal government, isn't myth defined as a popular belief that isn't true??

For that statement to be true you would have to believe that Madison lied and Supreme Court Justice Story either lied or was mistaken, as well as others who were either Founders or contemporaries of the founders, some of whom were jurists. Not only have you failed to rebut their arguments, you have yet to address them.

(Dismissing an argument as an op-ed piece is not the same as addressing and rebutting the argument.)

Edited to add:

During this discussion your argument has changed from the militia as a check against the federal government, being codified into law, to many people considering it a check against the federal government.

I didn't change my argument, I threw in additional arguments to show what the people thought. And rather than use the word "codified," preserved is a more appropriate term.

 

[Ieyasu]

If the Constitution had left the states in full control of their militia, without a federal call-up, would you maintain that the state militias were a check on the federal government?

Edited to add:

I think I see what part of the problem is... Do you believe states have rights?

 

[legaleagle_45]

Jeff White wrote:

Which federal law says the militia is a check on the federal government? You can't show it to me because it's not there. Not in Article 1 section 8:

It is here, Jeff:

reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress

You must put yourself firmly in the shoes of the framers in 1787-1789, rather than looking at it from a 2007 perspective. With all of the officers specifically appointed by the state, and all of the members being citizens of the state, the primary loyalty of the militia was owed to the state. When the Constitution was drafted there was no unified central government, but merely a loose alliance of soveriegn states.

Now consider this provision:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years

Consider why appropriations for the regular armed forces was specifically limited to two years... what were they concerned with?

Finally, consider what actually happened in 1861. Your thesis would dictate that all Lincoln had to do was federalize the South Carolina militia which had put siege to Fort Sumpter, have them arrest the leaders who had declared seccesion from the US and the matter would be quickly resolved without any fuss or mess whatsoever. Why did not that happen?

In considering the above question, let me remind you of Robert E. Lee, who was personally opposed to secession, yet led the Confederate forces because he felt a higher sense of loyalty to his state of Virginia then he felt for the USA.... the militias of the Confederate States held their primary loyalty, not to the USA, but to their individual states. Any attempt to federalize them would have been ignored. The power to federalize the militia is worthless if the militia refuses to be federalized... and that is exactly why the officers were to be appointed by the individual states rather than by the federal government.

 

[Ieyasu]

Here's a scenario...

The Army refuses to obey a lawful order. As a result the president calls-up the militia to rectify the situation. That's a clear-cut case of the militia acting as a check on a part of the federal government. In other words the militia is acting as a check on a standing army.

 

[legaleagle_45]

Ieyasu wrote:

The Army refuses to obey a lawful order. As a result the president calls-up the militia to rectify the situation.

Perhaps not as far fetched as it seems upon first glance. Not to dwelve into "conspiracy theories", but there is some support in the historical record for a planned coup in the US, against FDR and as told by Smedly(sp?) Butler and involving high ups in the military (up to and including Douglas MacArthur) and influential industrialists (DuPont, Morgan, et al). The supposed plot ran aground for many reasons, including the existence of an independent military force outside of the regular chain of command and beyond their control... to wit, the militias of the several states.

 

[Ieyasu]

including the existence of an independent military force outside of the regular chain of command and beyond their control... to wit, the militias of the several states.

Interesting that the militia was given as one of the rationales for discouraging a coup.

 

[legaleagle_45]

Ieyasu wrote:

Interesting that the militia was given as one of the rationales for discouraging a coup.

The whole plot was kinda interesting... I am unsure if it was real or whether it was the product of a fervent imagination... What I do know for a historical fact is that shortly after news of the purported coup surfaced, General MacArthur resigned his commision and his position as Chair of the Joint Chiefs to accept a posistion with the Phillipines. Further, FDR is on record as stating that Mac was one of the two most dangerous men in the US... Bonus points if you can name the other...

 

[Ieyasu]

Bonus points if you can name the other...

*LOL* Off the top of my head I couldn't, but Google did...

I'd have said whoever was the Fed Reserve Chairman

 

[legaleagle_45]

Ieyasu wrote:

I'd have said whoever was the Fed Reserve Chairman

I don't think the Fed Reserve Chairman ever had a nickname of "Kingfish"

 

[revjen45]

I am 60 and out of shape, but still shoot well and would be willing to take up arms in defense of the Republic, the Constitution, and the Liberty of the USA. To those who say age makes one unfit for the Militia I point out David Lamson (African American Patriot- veteran of the French and Indian War) and the Old Men of Menotomy. 11 men exempt from militia service due to advanced age captured Gen Gage's supply wagons and captured or killed numerous of His Majesty's Grenadiers in the opening of the War of Independence.

 

[Ieyasu]

The framers intended a seperate and independent military force to off set the federal armed forces. I see no constitutional problem with the "dual enlistment" provision so long as the NG remains outside of the regular command structure of the Armed Forces at all times. The appointment of officers was a big inducement which overcame many objections to federal involvement in the state militias and the power over them when federalized. However, and under current law, when the NG is federalized there are officers not appointed by any Governor who are actually in charge of the NG.

Legal, once they're activated as Army and shipped overseas, isn't it a moot point anyway (constitutionally speaking)?