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January 12, 2014

The Army and Navy Clauses in the Constitution

In the previous post, the Dark Lord Sly poses an interesting question:

The Constitution requires a military, so while I understand where the idea that a state would declare our military illegal would come from, perhaps not the best comparison in that it is a requirement of our federal government.

This is an area the Editorial Staff knows little about, so we resorted to Google. We dimly remembered from our school days the debate about a standing army. As it turns out, the relevant clauses to the Constitution (the Army and Navy Clauses) delegate to Congress the following powers:

(Clause 11 – War power)

[The Congress shall have Power] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

(Clause 12 – Army)

[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;

(Clause 13 – Navy)

[The Congress shall have Power] To provide and maintain a Navy;

(Clause 14 – Military establishment)

[The Congress shall have Power] To make Rules for the Government and Regulation of the land and naval Forces;

In a fine essay, Mac Owens explores the history and context behind the Army clause:

For most Americans after the Revolution, a standing army was one of the most dangerous threats to liberty. In thinking about the potential dangers of a standing army, the Founding generation had before them the precedents of Rome and England. In the first case, Julius Caesar marched his provincial army into Rome, overthrowing the power of the Senate, destroying the republic, and laying the foundation of empire. In the second, Cromwell used the army to abolish Parliament and to rule as dictator. In addition, in the period leading up to the Revolution, the British Crown had forced the American colonists to quarter and otherwise support its troops, which the colonists saw as nothing more than an army of occupation. Under British practice, the king was not only the commander in chief; it was he who raised the armed forces. The Framers were determined not to lodge the power of raising an army with the executive.

... Founders like George Washington, James Madison, and Alexander Hamilton were also acutely aware of the dangers external enemies posed to the new republic. The British and Spanish were not only on the frontiers of the new nation. In many cases they were within the frontiers, allying with the Indians and attempting to induce frontier settlements to split off from the country. The recent Shays's Rebellion in Massachusetts had also impelled the Framers to consider the possibility of local rebellion.

The "raise and support Armies" clause was the Framers' solution to the dilemma. The Constitutional Convention accepted the need for a standing army but sought to maintain control by the appropriations power of Congress, which the Founders viewed as the branch of government closest to the people.

The compromise, however, did not satisfy the Anti-Federalists. They largely shared the perspective of James Burgh, who, in his Political Disquisitions (1774), called a "standing army in times of peace, one of the most hurtful, and most dangerous of abuses." The Anti-Federalist paper A Democratic Federalist called a standing army "that great support of tyrants." And Brutus, the most influential series of essays opposing ratification, argued that standing armies "are dangerous to the liberties of a people...not only because the rulers may employ them for the purposes of supporting themselves in any usurpation of powers, which they may see proper to exercise, but there is a great hazard, that any army will subvert the forms of government, under whose authority, they are raised, and establish one, according to the pleasure of their leader." During the Virginia ratifying convention, George Mason exclaimed, "What havoc, desolation, and destruction, have been perpetrated by standing armies!" The Anti-Federalists would have preferred that the defense of the nation remain entirely with the state militias.

The Federalists disagreed. For them, the power of a government to raise an army was a dictate of prudence. Thus, during the Pennsylvania ratifying convention, James Wilson argued that "the power of raising and keeping up an army, in time of peace, is essential to every government. No government can secure its citizens against dangers, internal and external, without possessing it, and sometimes carrying it into execution." In The Federalist No. 23, Hamilton argued, "These powers [of the federal government to provide for the common defense] ought to exist without limitation: because it is impossible to foresee or define the extent or variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy them.".

Owens goes on to trace the evolving use and orientation of the Army, from a small, expandable militia-like force to a constabulary to the behemoth, draft-supplied Army of WWII to the all volunteer force we know today. It's interesting reading:

The purpose of the United States Army has not always been primarily to win the nation's wars, but to act as a constabulary. Soldiers were often used during the antebellum period to enforce the fugitive slave laws and suppress domestic violence. The Fugitive Slave Act of 1850 permitted federal marshals to call on the posse comitatus to aid in returning a slave to his owner, and Attorney General Caleb Cushing issued an opinion that included the Army in the posse comitatus.

In response, Congress enacted the Posse Comitatus Act (1878), which prohibited the use of the military to aid civil authorities in enforcing the law or suppressing civil disturbances unless expressly ordered to do so by the President. The Army welcomed the legislation. The use of soldiers as a posse removed them from their own chain of command and placed them in the uncomfortable position of taking orders from local authorities who had an interest in the disputes that provoked the unrest in the first place. As a result, many officers came to believe that the involvement of the Army in domestic policing was corrupting the institution.

In 1904, Secretary of War Elihu Root reoriented the Army away from constabulary duties to a mission focused on defeating the conventional forces of other states. This view has shaped United States military culture since at least World War II and continues to this day. Whether the exigencies of a modern war against terrorism once again changes the military's mission towards domestic order is yet to be seen.

Owens next turns his attention to the Navy clause:

Because the Founding generation considered navies to be less dangerous to republican liberty than standing armies, the Navy Clause did not elicit the same level of debate as did the Army Clause (see Article I, Section 8, Clause 12). Their experience taught them that armies, not navies, were the preferred tools of tyrants. Readers of Thucydides could view a navy as particularly compatible with democratic institutions. They were also aware of how much the economic prosperity and even the survival of the country depended upon sea-going trade. Consequently, the Framers of the Constitution imposed no time limit on naval appropriations as they did in the case of the army.

Both Federalists and Anti-Federalists believed that maritime trade was necessary if the United States was to maintain its independence of action, but they disagreed over how to protect this trade. After the Revolution, the United States possessed one of the principal merchant fleets in the world, but it was largely defenseless. In June 1785 Congress voted to sell the one remaining ship of the Continental Navy, a frigate, leaving the fledgling nation with only a fleet of small Treasury Department revenue cutters for defense.

Federalists such as Alexander Hamilton argued for a federal navy, which "if it could not vie with those of the great maritime powers, would at least be of respectable weight if thrown into the scale of either of two contending parties." Hamilton argued that without a navy, "a nation, despicable by its weakness, forfeits even the privilege of being neutral." The Federalist No. 11.

Anti-Federalists argued that instead of defending American commerce and guaranteeing American neutrality, creating a navy would provoke the European powers and invite war. They were also concerned about the expense of maintaining a navy and the distribution of that expense. During the Virginia ratifying convention, William Grayson argued that, despite the fact that a navy would not appreciably reduce the vulnerability of southern ports, the South would bear the main burden of naval appropriations.

The wisdom of granting Congress the power to provide and maintain a navy became evident during the two decades after the framing and ratification of the Constitution. As Europe once again erupted in war, American merchantmen increasingly found themselves at the mercy of British and French warships and the corsairs of the Barbary States. Only the rapid creation of a navy permitted the United States to hold its own in the Quasi War with France (1798–1800) and the War of 1812 with the British.

The threat of cyber war and cyber attacks on both civilian and government targets poses yet another situation the Founders never really planned for. But the question of whether a State may selectively "starve out" or withhold public resources from a military institution lawfully present within its borders appears to be addressed in part by ARTICLE I, SECTION 8, CLAUSE 17:

The Congress shall have Power To ...exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings....

Not wishing to play attorney (even on the Internet), the Editorial Staff's laypersonish interpretation of this passage is that the rights retained by States are governed by the terms of the original purchase agreement. A state may refuse to host a military (or possibly quasi-military) installation, but once they have agreed to do so and accepted payment for the land, their rights are not unlimited but rather depend upon the terms set forth in the purchase agreement.

We would be extremely surprised to learn that a State had negotiated the right to sabotage federal property at will, and are even more skeptical that such an agreement would be a good thing, were it to have been agreed upon by both parties.

Posted by Cassandra at January 12, 2014 10:16 AM

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Don't recall ever having noted the implications of the cited Constitution clauses. Have not read all, digested all of the Federalist papers, nor even recall which I've thought thru. So appreciate the reminders/education of Princess' perspicacious points.

With those acknowledging kudos made,.... From day one when VOLAR (volunteer army) came into existence (I was a in the military at the time, a draftee), I opposed the idea. A multitude (6 or seven, actually) of reasons (some with some long anecdotes as support). But top two reasons:
1) History says standing armies are dangerous to national longevity/liberty. (Although value of anecdotal extrapolation limited, I saw this in micro as I observed that, for all the patriotism and honor which I deeply respected/applauded, wished others emulated, and attempted to pattern in myself, many of the long term fellows (aka "lifers") had no home other than the military.)
2) VOLAR makes war too inexpensive. When people can pay others to go die for them, or for their family members, that cost just does not remotely reflect the awfulness of war. I want the military managed by professionals, who can make it bring it to speed and make it work, but staffed by those who don't want to be there, but are there because they realize the issue (killing enemy, breaking things) serious enough that they have to do the job.

Posted by: Roy at January 12, 2014 06:57 PM

Howdy Cass,
Excellent writeup!

There's another reason Navy appropriations are different; even the continental congress recognized that a fleet could not be built or maintained if budgets were constrained to two years.

Best Regards,

Posted by: CAPT Mike at January 12, 2014 07:09 PM

Am thinking...
And judging.
Excellent posts this weekend, btw, though.

Posted by: DL Sly at January 12, 2014 09:44 PM

All that section of the Constitution says is that Congress may directly make laws that apply on Federally purchased land like it does Washington, D.C. It doesn't say anything about laws pertaining to the land (or water) surrounding the Federal land. The states continue to control those, and unless they specifically promised to provide water (or not to alter the flow of water in a way that would affect Federal land) they aren't legally bound to do it.

It's a radical thing to do, all the same. You asked me here and at the Hall if I couldn't see the dangers of doing it. Of course I can. But we don't have the option of avoiding danger. We're in a very dangerous situation already.

The NSA's powers, along with those of other Federal agencies, have grown far beyond what the Founders intended to invest in the Federal government. Congress' capacity to oversee their exercise has dwindled because of the introduction of classification systems, especially including the TS/SCI level of classification. For Congress to gain access even to basic information so classified is... well, I presume you know just how difficult it is and just how much danger there is in the redaction process. (And just how little judicial oversight there is in making sure that executive agencies adhered to the Congress' demand.)

The states have likewise lost their original representation: the Senate is now popularly elected instead of appointed by the states. The Federal government can ignore the states, who have no representation, and the executive can almost ignore Congress if it classifies the data the right way.

So we're in a strange place, in which the traditional safeguards have broken down. The states have to look anew at the dangers posed by the power invested in the Federal government (indeed, almost completely concentrated in a single branch, the executive). If they have levers to force more disclosure, or to impose limits, they have to consider them. As dangerous as that may be, it's dangerous also to have unbalanced, concentrated power -- history shows this, as the Owens piece points out.

That doesn't mean it isn't dangerous, and I understand your discomfort. It just means that I think the danger on the one side is not less than the danger on the other. A move by states and citizens to try to find ways to check the Federal government, and especially the executive branch, seems to me like the path of wisdom even though it is perilous.

Posted by: Grim at January 20, 2014 12:48 PM

With all due respect, Grim (and I really do mean that respect is due), I don't think "what the Founders intended" is a great yardstick for how We, the People of today should live our lives.

Self government can't be delegated to a bunch of long dead wealthy landowners who had no concept of cyberattacks on critical energy or water infrastructure, much less our communication infrastructure.

It would take frighteningly little to bring this country to its knees and the truth is that neither the military nor the private sector are anywhere NEAR ready to deal with such attacks.

The states have likewise lost their original representation: the Senate is now popularly elected instead of appointed by the states.

Yep. And that's because that's what the States decided needed to happen.

The "traditional safeguards" weren't designed for today's world. They weren't designed for a country as large as today's America.

I think you overestimate one set of dangers and drastically underestimate the other set. I don't even believe either you or I understand the whole NSA thing.

Posted by: Cassandra at January 20, 2014 01:23 PM

If understanding is necessary for criticism, I'm prepared to understand. I don't have a problem doing the work to understand a critical issue facing our country.

There's a small problem, though, which is that everything I might need to know that I don't know is classified. If understanding is necessary for criticism and the government can legitimately prevent understanding, there can be no self-government.

We might trust our representatives (those same ones who keep selling military pensions down the river), but they aren't allowed to see the information either. Nor can the courts, except the FISA court, whose proceedings we can't see (nor can our representatives, nor can courts of appeal, nor can those who might oppose the government's case -- there is no capacity for the defense to exist, let alone to pursue a case in their client's interest).

This isn't a possible danger -- an attack that might or might not happen. It's an actuality. I think we could reasonably consider how to force reforms to reopen the possibility of a government that is accountable to the people (or at least their representatives).

Yep. And that's because that's what the States decided needed to happen.

That was true 100 years ago. If the Founders are no guide, neither are the Populists of that era. Maybe it's time to rethink this, and push for changes.

It would take frighteningly little to bring this country to its knees and the truth is that neither the military nor the private sector are anywhere NEAR ready to deal with such attacks.

I think I know something about what it would take to be ready to prevent such attacks (though not as much as I'd like about what it would take to deal with such attacks if they had already happened). What the NSA appears to be doing -- assuming the details in the press are a correct account -- isn't really aimed at that set of preventative measures. In fact the problem with it is that it doesn't appear to be aimed at all. A lot of energy is being spent, apparently, on collection; the targeting process (including intelligence analysis) is where you need to focus.

Posted by: Grim at January 20, 2014 06:48 PM

That was true 100 years ago. If the Founders are no guide, neither are the Populists of that era. Maybe it's time to rethink this, and push for changes.

I would argue that the fact that no one feels strongly enough about it (so far) to raise the issue strongly suggests that it's not viewed as a serious problem (as opposed to the Constitutional amendment that changed things, which was proposed because states DID see a problem with the scheme the Founders set up, and wanted to solve it).

FWIW, I don't agree at all that the 17 amendment caused the States to "lose their representation". But that's a separate issue. This is a fairly esoteric issue that most people don't care about. What is the precise nature of the problem you're trying to solve, here? "The States" can be thought of as "the state legislatures" (the old way of choosing Senators) or "The State's people" (the new way).

Are you saying that you think this power should be removed from the people and transferred to state legislatures? Why is that better? How would that in any way enhance state representation?

Posted by: Cassandra at January 21, 2014 12:23 PM

Zell Miller had a bill to repeal the 17th when he was in the Senate, but it didn't go anywhere. One of the problems that he was concerned about -- as a former Governor and Lieutenant Governor -- was the way Congress imposed unfunded mandates on the states. If the state legislatures directly controlled the composition of the Senate, that was likely to stop. (Of course, this was back in the ancient days pre-Obama when Congress assumed it couldn't just print a trillion dollars a year in new debt; unfunded mandates aren't as necessary if you can just create the money by magic wand instead.)

I thought at the time that he had a good point in terms of the balance of powers between the states and the Federal government. Insofar as we're newly concerned about concentration of power in the Federal government, especially the executive branch, it might be wise to restore the state's specific voice.

Or there may be other ways of approaching the problem that would work better. I'm not hidebound here; I just think it's a problem we really ought to be considering, as part of the general problem of reducing the concentration of power in the Federal executive.

Posted by: Grim at January 21, 2014 08:57 PM

I found a good writeup on the 17th amendment and will post it.

Posted by: Cassandra at January 22, 2014 08:13 PM