Since 1916, “the militia”, as referenced by the Constitution in Article 1 Clauses 15 and 16 of the Constitution, has been defined as “every military-age male in the country” due to the National Defense Act of 1916. But: How did that happen, and why?
First of all, let’s discard the notion that this had anything to do with the Founding Fathers. It didn’t. George Washington had a dim opinion of militia. They had been virtually useless during the American Revolution, his well-trained and equipped Continental Army had done pretty much all of the fighting that had bled the British treasury dry, all the militia managed to do most of the time was get in the way of the regular soldiers because they ran the first time someone fired a shot at them, and rarely would march more than fifty miles from their home to meet the British. A militia that’s unwilling to concentrate together in order to inflict pain upon the enemy is a militia that’s useless, and that’s what George Washington’s opinion of the militia was — that they were useless.
The anti-Federalists, however, were intent upon making sure that the new nation wouldn’t have a big military capable of imposing military rule upon the nation, so Washington’s friend Alexander Hamilton proposed a professionalization of the militia in Federalist #29, and made sure that the militia clauses to implement that were in the new Constitution. Hamilton most specifically said that the militia was not the entire mass of men, but, rather, was a well trained and equipped subset of the manpower of a state, because untrained militia were rabble and useless, while it’d cost too much to train every man in a state. Hamilton’s proposal to the anti-Federalists was, okay, you don’t want a big U.S. Army, so we’ll have a small U.S. Army that’s just a core of a military, and then the state militias will be the main military of the United States. If the central government tried to impose tyranny the state militias could stop it, and if one state’s militia tried to impose tyranny within that one state, the militias of the surrounding states would be strong enough to invade and put down the tyranny.
It was a neat system, if it had worked. In the event, the central government never provided the funding and weapons to bring the state militias up to professional standards, and this proved to be disastrous during the War of 1812, when militias led by the professional core of the U.S. Army performed so poorly that for a while it seemed that the British were going to be able to re-conquer the United States altogether. Andrew Jackson’s victory at New Orleans was pretty much the only U.S. victory against a British field army during the war. British attempts to raid Baltimore and New York were repulsed but Washington D.C. was burned. Meanwhile, multiple attempts to invade Canada by the poorly organized U.S. military forces failed disastrously. If the British hadn’t been stretched by the costs of defeating Napoleon, things could have gotten dire — the army that defeated Napoleon was, in the final days of the war, mustering in Canada to do an invasion of the United States.
After the War of 1812, the notion of “the militia” as an alternative to a strong professional military was forever discredited. The Mexican-American War in 1848 was largely fought by the U.S. Army, or, rather, its core inflated with volunteers. And of course the American Civil War was entirely fought by professional armies under the command of their respective national governments.
The American Civil War ended with a Union victory and a flurry of anti-slavery amendments to the Constitution. The most important of these was the 13th Amendment, which prohibits slavery or involuntary servitude. In the years after the American Civil War that wasn’t much of a problem. The Indian Wars didn’t require a large number of soldiers, there was rarely more than 10,000 soldiers deployed to the West. The Spanish-American War similarly didn’t require huge amounts of troops — the decrepit Spanish Empire had only a handful of troops in Puerto Rico, Cuba, and the Philippines, and the decrepit Spanish Navy was totally incapable of dealing with the increasingly powerful U.S. Navy and thus unable to reinforce their troops even if they’d had the manpower and money to do so. The Filipino-American War and Moro War that followed never had more than 10,000 American troops in the field, well within the realm of what was easy to staff with volunteers. But then 1914 happened, and massive armies with millions of men started marching across Europe and engaging in battles with mass slaughter. The death tolls in some single battles of the Great War exceeded the size of the entire U.S. Army in 1916. And it was clear by then that the United States was going to end up being dragged into the war. The Germans were getting desperate and using their U-boats to try to blockade Britain, the biggest trading partner of the United States, and the U.S. public was not going to long tolerate them sinking U.S. ships. Yet the tiny U.S. Army clearly was incapable of contributing much to the war effort. It needed to be vastly expanded. And the only way to put the millions of men under arms was a draft.
Which was involuntary servitude.
Which was illegal under the 13th Amendment to the United States.
So the Democrats in Congress, and the President, passed the National Defense Act of 1916, which started the process of buying arms and equipment for this vastly expanded military, professionalizing and increasing the funding for the National Guard and bringing it up to national standards, and otherwise prepare the country for war. And oh yeah, that pesky 13th Amendment. Clause 15 says Congress can call up the militia for national service under the command of the Federal government. So if we define the militia as every single military age man in America… gosh, we can call them up for national service!
In other words, by doing this, the Federal government could use Clause 15 of Article 1 of the Constitution to draft soldiers even if a 13th Amendment argument was made and upheld by the Supreme Court. When a draft was actually imposed in 1917 and resulted in lawsuits, they never had to fall back on this, because the Supreme Court ruled that the power to raise armies granted in Article 1 Clauses 11, 12, 13, and 14 was sufficient to make the draft legal. But if the Supreme Court had ruled that the 13th Amendment outlawed the draft even so, then there was the additional power that the Federal government could have used — they could have federalized “the militia”, i.e., selected military-age males amongst the whole population of military-age males defined as “the militia”.
And that’s how that clause ended up in the National Defense Act of 1916 — it was an attempt to defend the power to draft armies, nothing more. It had nothing to do with the original intent of the Founding Fathers, who intended the various state militias to be a subset of the male population that was well trained and well armed by the Federal government, and in no way wanted an armed rabble. George Washington would have thrown his hat on the ground and cursed at you if you told him you wanted armed rabble as the militia — “they’re useless!” basically said. The founding fathers had plenty of experience with armed rabble to tell them it was a bad idea — even providing ammunition for the rabble proved an almost insurmountable task, they ended up having to give out blocks of lead to the militia because no two rifles or muskets took the same size bullets, the men had to cast their own bullets out of those blocks of lead. At least black powder was black powder, but the British system of “cartridges” (paper tubes of powder and a bullet) obviously wasn’t going to work because no two guns took the same size charge, meaning that the militia was always excruciatingly slow at reloading compared to professional soldiers armed with professional weapons. No, Washington and Hamilton wanted professionally armed and trained militia under the aegis of the states, not rabble, and that’s what they wrote into the Constitution. The fact that 250 years later you find grown men and even a few historians arguing that the Founding Fathers intended every single man to have a military weapon and be part of the militia would have sent them into guffaws of laughter… right after they informed you as to why that was a hilariously bad idea.
— Badtux the History Penguin
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