Manski: From Liberty to Empire -- The Demise of American Defense

April 1, 2009
Ben Manski

All you have to do is remember that anti-imperialism is only another name for old-fashioned Americanism, and all will be clear to you. An American who has a settled body of convictions . . . who with his inherited ideas has an inherited courage, an inherited love of equality and justice . . . why, he is a natural born anti-imperialist, and it is simply his Americanism that makes him think and act as he does . . . .
~ New York Evening Post, May 3, 1902

Were the British billionaire Rupert Murdoch to read those words today in what is now his New York Post, it is possible he might suffer a heart attack. Were we to read them in most any mainstream U.S. daily, we would at least be shocked. That this is the case is a testament to the past century’s shift in media ownership, certainly, but more to the point, it speaks to the demise of the American system of national defense.

A century ago, it was natural for the editor of a major newspaper to write that “old-fashioned Americanism” is anti-imperialism. Today, that kind of old-fashioned Americanism is dead, buried, and forgotten. The cost of forgetting is not insignificant: It is acceptance — by foes and advocates of U.S. empire alike — of a military order that would have been forcefully rejected by prior generations.

To see how far we have fallen, it is best to return to the beginning.

In defense of the revolution: The Militia Clause

The Congress shall have power . . .
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;

~ U.S. Const. art. 1, § 8, cl. 15 & 16

The original American defense force was the state local, and independent militia. Its membership included, as recognized by the federal Militia Act of 1792, “every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years . . . .” Its officers were appointed or elected, depending on state law. Its members were trained and armed by authority of Congress. This was the primary defense; for decades, the United States had no real standing army, only a small force numbering in the hundreds.

Defense meant something deeper than the protection of territorial borders; it meant the protection of America as a “land of liberty.” By and large, the revolutionary generation was committed to creating a new society in which power was decentralized. They had revolted, after all, against a monarch who in the words of the Declaration of Independence, had, “kept among us, in times of peace, Standing Armies without the Consent of our legislatures . . . . [and] affected to render the Military independent of and superior to the Civil Power.” A force made up of the people themselves was considered the greatest protection against the potential collapse of the American republic into imperial tyranny.

What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty . . . . Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.
~ U.S. Rep. Elbridge Gerry, Massachusetts, August 17, 1789.

The revolutionary generation provided in the Constitution varied means for common defense. To Congress and the Presidency they gave shared responsibility for diplomacy. To Congress alone they accorded the powers to declare war, maintain a navy, and raise an army (for up to two years at a time). To the President, in times of war, they entrusted the office of Commander in Chief.

Yet among the war powers, the role of the militia was preeminent. Indeed, the Constitution not only guarantees to the American people — we citizen soldiers — the right to keep and bear arms, it specifies clear limits on federal use of the state militias. The Militia Clause of the U.S. Constitution, Article 1, Section 8, Clause 15 & 16, lays out the three purposes for which Congress may call into actual service the militia, these being, “to execute the laws of the union, suppress insurrections and repel invasions.” The clause also provides for congressional regulation and maintenance of the militia. In a government of “limited and enumerated powers,” the ability of Congress to federalize the state militias was intended to end with the provisions of the Militia Clause, and for more than a century it did.

Note that among the purposes for which Congress is not empowered to call the militia into national service are deployment to, invasion of, or occupation of other countries. The state militia were defensive, not offensive. This was by design. Of U.S. empire, Thomas Jefferson insisted in 1791 that, “If there be one principle more deeply written than any other in the mind of every American, it is that we should have nothing to do with conquest.” And a generation later, future president John Quincy Adams laid forth an image of America embodied by Lady Liberty:

America’s glory is not dominion, but liberty. Her march is the march of the mind. She has a spear and shield, but the motto upon her shield is: Freedom, Independence, Peace. This has been her declaration. This has been, as far as her necessary intercourse with the rest of mankind would permit, her practice.
~ U.S. Secretary of State John Quincy Adams, July 4, 1821

Pretty as those words were, clear as the text of the Constitution was, what gave the words and text weight was the practical reality of militia-based defense. Hundreds of thousands of citizens armed, trained, and organized in state and local militias provided a defense against federal tyranny and a real check on federal imperial ambitions. Citizen soldiers were unlikely to agree to deployment far from home and for dubious purpose. Citizen soldiers were unlikely to enable the enforcement of tyrannical federal laws — such as the Fugitive Slave Act of 1850 — in their states and communities. That was the rhetoric of the time, and for the most part, that was the reality.

Here for the sake of clarity is a summary of the original distribution of American defense. First, the American people were armed, trained, and organized in state militia as a defense against foreign invasion, tyranny at home, and empire abroad. Second, the Congress of the United States was entrusted with maintaining peace, regulating the militia, supporting the navy, calling the militia into actual national service for very specific purposes, raising additional armies when war threatened, and alone determining whether the United States was to declare war and engage in military action. Third, the President of the United States held one military role only — that of Commander in Chief in times of war — in order to ensure civil control of the military at the very moment that the military posed the greatest potential threat to civil government.

Imagining what would happen were the militia removed from this three-part arrangement is not difficult; we have seen the results. Congress created a large standing army in place of the state militias. With real standing armies, Congress and the Presidency now were able to act aggressively. And with the militia gone as a popular check on military adventurism, Congress ceded evermore power to the Presidency. The most important war powers question, therefore, is that of what happened to the state militias.

The first 100 years

From 1789 to 1903, the state militias remained the bulwark of American defense. In the War of 1812, following a declaration of war by the United States against Great Britain, Congress called the militia into service. Most state militias responded to the call. Some units, however, initially refused to appear on the ground that Great Britain had not yet invaded the territorial United States; others resisted service throughout the war, declaring that the conflict had been avoidable and was wrongful. And some units refused to participate in U.S. incursions into Canada; as a direct result, those expeditions failed.

A generation later, Congress declared war on the Empire of Mexico. Congress did not, however, call the state militias into service. Even the most diehard war proponents acknowledged that the Militia Clause did not give Congress the authority to use the militia for the invasion of another country (attacks on native peoples within U.S.-claimed territory were another matter). Furthermore, even had Congress attempted to call them into service, it is doubtful that northern militias would have appeared. The invasion of Mexico was deeply unpopular in northern states, as it was seen as furthering the spread of slavery.

The domestic divisions over the invasion of Mexico widened into war a dozen years later in the most significant military event in the history of the United States, the American Civil War. Militias played significant roles in pre-war years. Well known is the role of the state militia of the South in preparing the way for the Confederate States Army. Yet militia by their nature will reflect the character of the people who compose them.

John Brown’s militia fought in the conflict over whether Kansas was to become a free or slave state. Later, that militia conducted the raid on Harper’s Ferry, ushering in the Civil War.

Hundreds of thousands of anti-slavery men prepared for war in militia units known as the “Wide Awakes,” so called because they were ‘wide awake’ against slave hunters, and sometimes took action to resist implementation of federal fugitive slave laws (see States Rights for Civil Rights, Liberty Tree, Vol. 1, Issue 3).

During the war, Blacks were inducted into the federalized militia for the first time (Blacks had served with some local and independent militia units before then), and a militia made up of Irish republicans struck a blow against the English occupation of Ireland by invading the Dominion of Canada. Following the war, state militia of freed Blacks were organized across the South to enforce the progress of Reconstruction.

A most significant Civil War role of the state militias may be among the least known. As with the War of 1812, at the beginning of the Civil War, the federal government called the state militia into national service. But this time, unlike with the earlier war, the concern for the states was not that the militia had been wrongly called into service, but that they were not being brought into service quickly enough.

Anti-slavery men governed many northern states, particularly in the Great Lakes region. Seeing that the Confederacy had a significant head start in war mobilization, and that the Union army was failing to accept tens of thousands of volunteers for service, these governors worried that the cause of abolition would be harmed by federal incompetence or, worse, lethargy. They convened in Cleveland, Ohio, on May 3, 1861, and elected as spokesperson the governor of a state which only two years earlier had itself considered secession in response to federal slave law, Wisconsin Governor Alexander Randall. In a letter mailed on May 6, 1861, Randall warned President Lincoln that if the federal government failed to channel rising war spirit, the people and the states might take the war into their own hands:

[It would be] better for the Government to direct this current than to let it run wild. . . . The Government must provide an outlet for this feeling, or it will find one for itself.

Feeling such heat from his party’s radical wing, facing an implicit threat of autonomous action by northern militias, and fearful of the war’s course himself, Lincoln responded, issuing a call for 300,000 men for the Union war effort.

The militia system was never perfect. While they played positive roles in Reconstruction, Abolition, and the Revolution, the state militias were sometimes directed to purposes contrary to the ends of human progress: Suppressing slave revolts, crushing farmer and labor strikes, and worse, massacring native peoples. The militia system had a key bias against central power, but beyond that bias it was not inherently progressive.

Overall, the militia system meant that for more than a century, the ability of the federal government to project military power abroad was significantly limited. On the cusp of the 20th century, in 1898, 115,000 Americans were enrolled in militia, as against 18,000 in the regular army.

The destruction of the militia

In 1898, the United States warred with Spain and won possession of the former Spanish colonies of Guam, the Philippines, Puerto Rico, and Cuba. The Spanish American war not only sounded the demise of the Spanish Empire, it also brought with it the end of the American system of defense, and the start of modern U.S. imperialism.

For the first time in American history, the federal government called state militia units into national service to send them overseas to fight and occupy foreign lands. Following the war, the federal government turned the Philippines, Guam, and Puerto Rico into U.S. colonies, and established a military “protectorate” over Cuba.

In 1903, the year Congress ratified the Cuban protectorate as well as the U.S. military base at Guantánamo Bay, Congress also adopted the Militia Act of 1903, or Dick Act. The Dick Act was a response to the perceived weaknesses of the militia system in carrying out the new imperial policy. The Act required the various state militia to adhere to U.S. army organization, and began the reidentification of the militia as the “National Guard.”

The federalization of the state militia increased pace with the adoption of the National Defense Act of 1916. That wartime Act made mandatory the renaming of the militia as the National Guard, required Guard members to pledge obedience to the President, and in times of war inducted irrevocably the Guard into the U.S. Army Reserve.

Subsequent amendments to the National Defense Act established a National Guard Bureau commanded by federal officers and created our current dual-enlistment system in which Guard members are inducted into the U.S. Armed Forces in times of peace as well as war. (This dual-enlistment system means that upon joining the Guard, an individual enlists in both the National Guard of the several states — e.g., the Nebraska National Guard, Vermont National Guard — and in the National Guard of the United States, being the U.S. Army Reserve or Air National Guard). A final blow to state control of the state militia came with the National Defense Act amendments of 1952 and 1986; these authorized the Department of Defense to call the National Guard into national service in times other than national emergency, and to mobilize Guard units for training and other purposes without the consent of the governor of that unit’s state.

The federalization of the militia, the occupation of foreign lands, the use of the militia for purposes other than the repelling of invasion, law enforcement, or suppression of insurrection — all were unconstitutional. Yet despite howls of protest from the anti-imperialists of the day, all were maintained. The new dual enlistment system was eventually held to mean that for Guard units called into national service, in the words of the U.S. Supreme Court in Perpich v. Department of Defense, “the Militia Clause is no longer applicable.”

The original American purposes of, in John Quincy Adams’ words, “freedom, independence, and peace,” now gave way to property, empire, and war. Rep. Elbridge Gerry’s fearful warning of those who would, “destroy the militia, in order to raise an army upon their ruins,” had come to pass.

Democracy against empire

The United States of America were never intended to become, in the words of Emma Lazarus’s The New Colossus, “like the brazen giant of Greek fame, with conquering limbs astride from land to land.” Empire was the business of the “ancient world” and its “storied pomp.” Yet today the United States is more like the old colossus than the new, and millions of lives, freedom, and economic and ecological destruction have been the price.

How might we end this era of U.S. imperialism and revive American liberty?

To begin, we must insist that the U.S. Armed Forces as they are currently organized are unconstitutional and contrary to the original intent of the revolutionary generation that America be a land of liberty, not empire. The courts that upheld the federalization of the state militia were also the courts that upheld segregation via the judge-made law of separate-but-equal and that struck down worker protections via the judge-made law of the dormant commerce clause. Why, when we reject those holdings today, would we accept similarly repugnant rulings? We should not. We should question the deployment of the Guard for purposes other than those specified in the Militia Clause, we should continue to challenge Congress’ delegation of its war-declaring powers to the Presidency, and we should begin to challenge the absurd notion that the wartime office of Commander-in-Chief bestows on the Presidency peacetime military powers that belong to the Congress, the states, and the people alone. We should, moreover, raise up a renewed vision for American defense defined by defense of liberty, decentralized and democratized, with popular participation understood not as a draft, but a birthright.

We should continue to support members of the U.S. Armed Forces who resist unlawful service. We should build on the anti-war consensus developed in last year’s troop withdrawal initiatives and referenda to pass city and county ordinances directing our local government officials to provide safe haven for war resisters and to disallow unconstitutional recruiting activities in our communities. And we should work to win state legislative and gubernatorial action to bring the Guard home.

Finally, we should make these initiatives within the context of building a new American democracy movement. The old militia system did not survive the rise of the corporations, media conglomerates, and federal power. Without the significant democratization of U.S. media, elections, economics, education, law, and culture, there is little reason to hope for the survival of a newly democratized system of defense.

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Ben Manski is a Wisconsin attorney and the editor of the Liberty Tree Journal.