Article 1, Section 8, Clause 15: The Militia

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

Congress enacts the statutes under which the militia is “called to the colors”; that is, mobilized for federal service. Under the Constitution, Congress is restricted to calling forth the militia only for enforcement of laws, for suppression of insurrections, or to repel an actual invasion. There is no provision for the militia to be called out for service abroad, which is the responsibility of the regular armed forces.

Prior to the ratification of the Constitution, the militia was the responsibility of each state, and was often under even more local control. This did not change with the ratification, which gave Congress power to call out the militia and to establish its regulations but left it otherwise in the hands of the states when not called to the colors. Currently the militia is regulated by the Militia Act of 1903, which recognizes both an organized and an unorganized militia.

The organized militia consists of state defense forces, the National Guard, and its naval counterpart, the Naval Militia. The state defense forces are military forces under the control of the states which cannot be called to the colors. The National Guard can and has been; many of the divisions that fought the Second World War were originally National Guard divisions that were federalized after the fall of France in 1940, an event that produced something of a panic in the American public and government. The Naval Militia is largely reservists and veterans, and, like the National Guard, is subject to federalization.

The unorganized militia is presently defined as every able-bodied male between ages 17 and 45 who is not a member of the organized militia. This is also known as the reserve militia. Congress obtained its authority to institute a military draft on the basis of the Militia Clause, which makes every member of the unorganized militia subject to a call to federal military service.

This raises the interesting question of whether Congress was acting within its constitutional authority when sending federalized militia troops abroad in the Second World War and other conflicts. While we recognize that the Second World War was almost certainly a just war — perhaps the most clear-cut case of a just war since the Revolution — we question the constitutionality of the wartime draft. We are not fond of the phrase “the Constitution is not a suicide pact”, but this might be as clear an expression of the concept as any in our history. Nevertheless, we would rather stick with the Constitution, and cannot help wondering what would have happened had we tried to fight that war with an all-volunteer force.