Is our military unconstitutional?

2015-03-14T13:53:21-04:00

Article 1, Section 8, Clause 12 (Army Clause) of our Constitution reads "The Congress shall have Power To ...raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years...."

Article 1, Section 8, Clause 13 (Navy Clause) of our Constitution reads "The Congress shall have Power To ...provide and maintain a Navy...."

Article 1, Section 8, Clause 15 (Militia Clause) of our Constitution reads "The Congress shall have Power To ...provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions..."

Okay, so according to the Constitution, standing armies should not be funded for longer than 2 years, the Navy can exist permanently, and militias (Now the National Guard) are to be maintained and used at the President's discretion for military matters stateside. So that being said, is our military, in it's current state, unconstitutional?

Disclaimer: I am not a proponent of disbanding our military. This is purely a discussion regarding our military and constitutional interpretation.

Response by SMSgt Private RallyPoint Member made Mar 14 at 2015 2:20 PM

2015-03-14T14:20:33-04:00

Clause 12 I interpret to speak only to the appropriation of funds, in that money cannot be appropriated for a period more than two years in the future. That doesn't even speak to budgeting, only the appropriation of funds.

Response by CW3 Private RallyPoint Member made Mar 14 at 2015 2:26 PM

2015-03-14T14:26:34-04:00

That could be read as every two years, a new agreement must be made as to how to fund the Army. No defense plan can be made that extends a period of two years. But as said, appropriating and budgeting can be considered differently.

Response by SPC Private RallyPoint Member made Mar 14 at 2015 2:54 PM

2015-03-14T14:54:47-04:00

I don't think the army has ever been fully disbanded. Even in the 1800's (1812, 1861-1865 notwithstanding) there was always an army. In the territories, the guarded the frontier and in the coastal states they manned coastal defense forts, like fort Sumter. I'll admit that, I'm sketchy on nineteenth century domestic policy in regards to a standing army, but things like Jackson's Indian relocation and the Mexican American war might have played out differently without a standing army.
I think what a lot of people forget is the infrastructure difference between the two services, maintaining a navy is an issue of decades. World war two is great example, even with America's industrial might in full war mode, we never replaced all the losses from pearl harbor. Today, it takes ten years to build and field an aircraft carrier. A new attack sub is six. You can't neglect a capital investment of that value now, you surely couldn't then.
You can do that to the army. Move the tanks out west, drain the fluids, and shrink wrap them like the air force mothballs planes. Dunk the weapons in grease, lock them up in armories. The equipment will still be there. Keep a small force of officers active. It only takes nine weeks to train cannon fodder. Be ready to have a lot of people die if something happens until enough veterans exist to train up the new guys to reality. Like the civil war, or world war I.

Response by MSG Private RallyPoint Member made Mar 14 at 2015 3:20 PM

2015-03-14T15:20:28-04:00

Had the anti-Federalists prevailed, there would be no standing army, or changes would have to have been made between then and now to allow for one. The militia would have been wholly the means of defense. See the writings of Brutus, and James Burgh. George Mason, a framer of the Constitution, wrote, "What havoc, desolation, and destruction, have been perpetrated by standing armies!" Allowing for a standing army at all was a major compromise and one the Federalists considered a necessity, mostly due to the experience in the Continental Line of Washington, Madison and Hamilton. And the reality that's easy to miss with our modern borders, that the French and Spanish were not only on the US' frontiers, but within them and allying often with Native American tribes.

Add to this that the framers, all of whom were deep students of history, had a large number of predicates to draw on for the dangers of standing armies beyond their colonial experience with Britain, from Julius Caesar and the destruction of the Roman Republic, to the ultimate "man on horseback" of the founders' fears, Oliver Cromwell. A standing army to them was still dangerous, but less so than not having one, so measures had to be included to mitigate those dangers (early CRM if will). There was also the matter of Shays' Rebellion, forcing a consideration of how to handle such problems in the future.

Some individuals in the Constitutional debates argued that army appropriations should be made on a yearly basis. Roger Sherman pointed out that in a time of emergency, Congress might not be in session when an annual army appropriation was needed. Nevertheless, annual appropriations have been the rule, especially with the creation of the DoD in 1947 and consolidated appropriations for all services.

The Army has been an "expansible" force. A small peacetime establishment serving as the foundation for a greatly expanded force in times of emergency. The emergency ended, the citizen-soldiers would demobilize and return to their civilian occupations. This was the model for mobilization from the Mexican War through World War II. During the Cold War, the United States for the first time in its history maintained a large military establishment during peacetime (and so this is a very new thing--far from the norm). With the end of the peacetime draft (itself an aberration, historically) in 1973, the citizen-soldier was superseded by the long-term professional.

The Army was also initially imagined, even by the Federalists, as a sometime constabulary force, enforcing the laws. That changed in 1878 with the Posse Comitatus Act--driven by the Army's desire to avoid being embroiled in the local conflicts raised Reconstruction following the Civil War and the memory of similar conflict caused by the Army's use as a posse for the Fugitive Slave laws prior. Only the President can direct the Army be used for such purposes, or where Congress has made legislative exceptions--this preserves Constitutionality.

If there is any point on which today's Army is in violation of the Constitution, it is in our handling of the militia, the National Guard. Congress has authority, "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."

The states are supposed to appoint officers in the militia. I am not familiar enough with the ins and outs of today's federal recognition of officers to state that this is a problem--there may be a legislative or procedural fig leaf, but if there is a problem with the Constitutionality of our military, this is where it is.

Response by Capt Richard I P. made Mar 14 at 2015 3:23 PM

2015-03-14T15:23:38-04:00

The Marine Corps and the Navy definitely are not. That was a driving factor in my choice of service.

Response by Sgt Aaron Kennedy, MS made Mar 14 at 2015 7:58 PM

2015-03-14T19:58:53-04:00

Because of the "billing cycle" and the expansion/reduction of force for the Army, we adhere to the Intent of the Constitution when it comes to the Army Clause. We do not technically have a "standing Army." We have a tailored force, which adjusts based on need.

The Naval Service (USN/USMC) is to be "maintained" which means we can keep it as a "standing force."

The USCG, USAF are not addressed in the Constitution are are not considered as part of the land & naval forces "specifically," however even if we were to consider the USCG as part of the naval forces, they are protected under the Navy Clause (maintain).

The Reserves & National Guard fill the traditional role of "militia." Now, when you account for them, you also have to account for their ties to the state governments to which they (NG & ANG) serve.

So, in essence, our current military force adheres to not only the letter, but the intent of the Constitution.

Response by TSgt Joshua Copeland made Mar 14 at 2015 8:10 PM

2015-03-14T20:10:29-04:00

This is why the defense budget is renewed each year.

Response by SPC Elijah J. Henry, MBA made Mar 20 at 2015 10:27 AM

2015-03-20T10:27:42-04:00

Capt Private RallyPoint Member, no, the military is not unconstitutional as it is. The appropriation thing is just about funding.

Now, the National Guard is not the Militia. There are vital differences between the institutions.

We are unconstitutionally neglecting the Militia.

Response by SSG Gerhard S. made Mar 20 at 2015 10:59 AM

2015-03-20T10:59:29-04:00

The distrust of standing armies WAS a primary concern to our Revolutionary founders. That distrust though was not misplaced then, nor should it be ignored today. The Framers knew that ONLY an army can constitute an occupying force, (neither a Navy, nor an associated Marine force would be large enough) and though a standing army would act as a deterrent to invasion, it would equally stand as a threat to the occupation of the many States. THIS is why the central government was permitted to "Maintain" a Navy, but only to fund an army (gathered temporarily) from the States Militias and only with the respective Governor's consent. An operating Navy was the means to "rapid" transport and as a means of a Central defense, which is why IT was permitted to be "maintained" by the Central government, as a benefit to the many States. Under that premise and principle, it could likely be argued that an Air Force would be "maintained" Centrally as well.

As George Washington Tells us... “A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government.”

This is the reason behind swearing Oaths of enlistment and commission to the Constitution, and NOT to the government, or to the President. This is also the reason ANY raising of an army was to come from the State's militias, and was NOT to be standing, and ready to fight. When Lincoln saw the onset of hostilities at the start of the war between the states, he had no standing army and is purported to be quoted saying, "Thank God for Michigan" when Michigan's soldiers showed up in Washington.

So, with no clause in the Constitution allowing the Central government to "maintain" an Army, and with clear language asserting that there are to be trained States Militias, the idea that Congress would commission the Militia's Officers was seen as a check to the power of the Executive who is commander in chief of a "raised" army.

What we have seen since the War between the States has been a consolidation of powers in the Central government, and a distortion of the balance of powers toward the executive branch. This trend became even more distorted when future President's had to "raise" armies to fight WW I and WW II. So, by NOT having a standing army, it became more difficult for a rogue executive to occupy one or more of the States. It also made it nearly impossible to engage in the sort of incessant world hopping and occupying that we find ourselves engaged in today. The thought was, if the cause is just, then the Congress will be on board to fund an Army, and the Governors will be on board to permit their troops to become, temporarily, part of the Federal Army. The reasoning behind this idea is as sound today, as it was in 1787.

That being said, in order to be trained, and outfitted in a uniform manner the State's Militias would need a (small) force of cadre to oversee the uniformity of training and equipment. Such a force would NOT constitute a Standing army in letter, or in principle, and is the model that should be adopted in order to adhere to the concepts laid plain in our Constitution. If we wish to maintain a standing army in perpetuity, there should be a Constitutional amendment in place to do so.

Important to the understanding of our Constitution are the Federalist and Anti Federalist papers, the Constitutional Convention notes containing the arguments and reasoning behind the clauses that were argued into the Constitution, and the words and correspondence of those involved in the founding of our great nation. Simply reading the words, gives them no context, and ignores the principles upon which they were placed to represent. Simply reading the words, out of context allows for the sort of misunderstanding where the phrase, "a well regulated militia" no longer means "well trained", to the ignorant it seems to mean "managed by a central authority". Context is important, and shouldn't stem from opinions of the ignorant, whether they be Judges, politicians, or others. The Context of our Constitution comes from the times in which it was written and from the words of the men who fought for it, argued for every line, and ratified it.