Author’s note: I have revised this because of some errors, which I made, when originially posting this. I should remember the dictium always have someone else check your work!
Regarding Delegate Bob Marshall’s editorial in the Washington-Times he is wrong in so many ways, however rather than picking a fight with him over his views regarding the morality of homosexuality; I will only say he is entitled to his opinion.
What I wish to respond to is his arugment that Virginia can establish differing standards for membership in the National Guard. In his opinion piece he quotes Justice Story.
“Former U.S. Supreme Court Justice Joseph Story noted in his Commentaries on the Constitution: “The power over the militia … was limited, and concurrent with that of the States. The right of governing them was confined to the single case of their being in the actual service of the United States … . It was then, and only then, that they could be subjected by the general government to martial law … . The power to discipline and train the militia, except when in the actual service of the United States, was also vested exclusively in the States; and under such circumstances was secure against any serious abuses.”
In Virginia, the National Guard denies applicants who have more than five traffic tickets or if they use drugs. States can impose tougher standards than Congress. Will state legislators and congressional Republicans listen to the troops and their constituents?”
Article I § 8 Clauses 10-17 United States Constitution states Congress shall have the power to:
10. To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
11. To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
12 To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
13. To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; 10 USC Chapters
14. To provide and maintain a Navy; 10 USC Chapters
15. To make Rules for the Government and Regulation of the land and naval Forces;
16. To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
17. 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;
Finally from Story’s Commentaries On the Constitution of the United States; the full quote which Delegate Marshall failed to provide, and which read in its whole, gives an utterly different take on the argument which Justice Story was making.
“§ 1200. This clause was not in the original draft of the constitution; but it was subsequently referred to a committee, who reported in favour of the power; and after considerable discussion it was adopted in its present shape by a decided majority. The first clause in regard to organizing, arming, disciplining, and governing the militia, was passed by a vote of nine states against two; the next, referring the appointment of officers to the states, after an ineffectual effort to amend it by confining the appointment to officers under the rank of general officers, was passed without a division; and the last, referring the authority to train the militia according to the discipline prescribed by congress, was passed by a vote of seven states against four. 9
§ 1201. It was conceived by the friends of the constitution, that the power thus given, with the guards, reserving the appointment of the officers, and the training of the militia to the states, made it not only wholly unexceptionable, but in reality an additional security to the public liberties. 10 It was nevertheless made a topic of serious alarm and powerful objection. It was suggested, that it was indispensable to the states, that they should possess the control and discipline of the militia. Congress might, under pretence of organizing and disciplining them, inflict severe and ignominious punishments on them. 11 The power might be construed to be exclusive in congress. Suppose, then, that congress should refuse to provide for arming or organizing them, the result would be, that the states would be utterly without the means of defence, and prostrate at the feet of the national government. 12 It might also be said, that congress possessed the exclusive power to suppress insurrections, and repel invasions, which would take from the states all effective means of resistance. 13 The militia might be put under martial law, when not under duty in the public service. 14
§ 1202. It is difficult fully to comprehend the influence of such objections, urged with much apparent sincerity and earnestness at such an eventful period. The answers then given seem to have been in their structure and reasoning satisfactory and conclusive. But the amendments proposed to the constitution (some of which have been since adopted 15 ) show, that the objections were extensively felt, and sedulously cherished. The power of congress over the militia (it was urged) was limited, and concurrent with that of the states. The right of governing them was confined to the single case of their being in the actual service of the United States, in some of the cases pointed out in the constitution. It was then, and then only, that they could be subjected by the general government to martial law. 16 If congress did not choose to arm, organize, or discipline the militia, there would be an inherent right in the states to do it. 17 All, that the constitution intended, was, to give a power to congress to ensure uniformity, and thereby efficiency. But, if congress refused, or neglected to perform the duty, the states had a perfect concurrent right, and might act upon it to the utmost extent of sovereignty. 18 As little pretence was there to say, that congress possessed the exclusive power to suppress insurrections and repel invasions. Their power was merely competent to reach these objects; but did not, and could not, in regard to the militia, supersede the ordinary rights of the states. It was, indeed, made a duty of congress to provide for such cases; but this did not exclude the co-operation of the states. 19 The idea of congress inflicting severe and ignominious punishments upon the militia in times of peace was absurd. 20 It presupposed, that the representatives had an interest, and would intentionally take measures to oppress them, and alienate their affections. The appointment of the officers of the militia was exclusively in the states; and how could it be presumed, that such men would ever consent to the destruction of the rights or privileges of their fellow-citizens. 21 The power to discipline and train the militia, except when in the actual service of the United States, was also exclusively vested in the states; and under such circumstances, it was secure against any serious abuses. 22 It was added, that any project of disciplining the whole militia of the United States would be so utterly impracticable and mischievous, that it would probably never be attempted. 23 The most, that could be done, would be to organize and discipline select corps; and these for all general purposes, either of the states, or of the Union, would be found to combine all, that was useful or desirable in militia services.
§ 1203. It is hardly necessary to say, how utterly without any practical justification have been the alarms, so industriously spread upon this subject at the time, when the constitution was put upon its trial. Upon two occasions only has it been found necessary on the part of the general government, to require the aid of the militia of the states, for the purpose of executing the laws of the Union, suppressing insurrections, or repelling invasions. The first was to suppress the insurrection in Pennsylvania in 1794; 24 and the other, to repel the enemy in the recent war with Great Britain. On other occasions, the militia has indeed been called into service to repel the incursions of the Indians; but in all such cases, the injured states have led the way, and requested the co-operation of the national government. In regard to the other power of organizing, arming, and disciplining the militia, congress passed an act in 1792, 25 more effectually to provide for the national defence, by establishing a uniform militia throughout the United States. The system provided by this act, with the exception of that portion, which established the rules of discipline and field service, has ever since remained in force. And the militia are now governed by the same general system of discipline and field exercise, which is observed by the regular army of the United States. 26 No jealousy of military power, and no dread or severe punishments are now indulged. And the whole militia system has been as mild in its operation, as it has been satisfactory to the nation.
§ 1204. Several questions of great practical importance have arisen under the clauses of the constitution respecting the power over the militia, which deserve mention in this place. It is observable, that power is given to congress “to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.” Accordingly, congress in 1795, in pursuance of this authority, and to give it a practical operation, provided by law, “that whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the president to call forth such number of the militia of the state, or states most convenient to the place of danger, or scene of action, as he may judge necessary, to repel such invasion, and to issue his order for that purpose to such officer or officers of the militia, as he shall think proper.” Like provisions are made for the other cases stated in the constitution. 27 The constitutionality of this act has not been questioned, 28 although it provides for calling forth the militia, not only in cases of invasion, but of imminent danger of invasion; for the power to repel invasions must include the power to provide against any attempt and danger of invasion, as the necessary and proper means to effectuate the object. One of the best means to repel invasion is, to provide the requisite force for action, before the invader has reached the territory of the nation. 29 Nor can there be a doubt, that the president, who is (as will be presently seen) by the constitution the commander-in-chief of the army and navy of the United States, and of the militia, when called into the actual service of the United States, is the proper functionary, to whom this high and delicate trust ought to be confided. A free people will naturally be jealous of the exercise of military power; and that of calling forth the militia is certainly one of no ordinary magnitude. It is, however, a power limited in its nature to certain exigencies; and by whomsoever it is to be executed, it carries with it a corresponding responsibility. 30 Who is so fit to exercise the power, and to incur the responsibility, as the president?”
So where do I disagree with Delegate Marshall. First and foremost if read literally or textually, the 17th Clause of Article 1 Section 8 of the Constitution of the United States gives Congress the power to proscribe the “disciplining” the Militia. Discipline the root word of disciplining is defined by the Oxford English Dictionary as “the practice of training people to obey rules or a code of behavior, using punishment to correct disobedience.” It may also be defined as “the controlled behavior resulting from such training.” Clearly the literal meaning is quite clear, that Congress will prescribe common rules for the governance of the conduct of the militia. The states have a role in that they have the authority to train the Militia according to “discipline” prescribed by Congress. It is up to the states to discipline and train the militia, which means discipline as in punish according the uniformed rules established by Congress. Nowhere does it say that the States may prescribe discipline which is greater or lesser than what Congress intended, for if that was the case rather than having a common set of organization and types and rules governing the militia of the several states, there would today be 54 separate armies each governed by the rule of an individual states, territories, DC, and Commonwealth of Puerto Rico. This is what the framer were trying to avoid, for they were all aware of the problem which confronted General Washington during the Revolutionary War.
My second problem with Delegate Marshall argument is that the quote he provides from Justice Story’s Commentaries is taken out of context. While I acknowledge that he was restricted by the dictates of the newspaper, he nevertheless implied Story said something, which when reading his commentaries in context, he did not. If you read Story commentary §1202 quoted above, you will note that he argues, “[a]ll, that the constitution intended, was, to give a power to congress to ensure uniformity, and thereby efficiency.”
I also have problems with his assertion that the Virginia Guard has higher standards for enlistment than does either the United States Armed Forces. The criteria for enlistment is established by each service. Five traffic convictions and drug use are standards imposed by the Armed Services and not Virginia. Virginia may not impose more strigent standards for entry into the Army or Air National Guard. They may however, impose any standard they desire for the Virginia Defense Force.
Lastly I would point out to Delegate Marshall that in Perpich v. Department of Defense, 496 U.S. 334 (1990) held, “Article 1’s plain language, read as a whole, establishes that Congress may authorize members of the National Guard of the United States to be ordered to active federal duty for purposes of training outside the United States without either the consent of a State Governor or the declaration of a national emergency.” Justice Stevens, in his opinion for the Court, provided a brief history of the organized militia. He asserted that from the time of the ratification of the Constitution that the Congress has the inherent right to prescribe rules for the discipline and training of the militia. He also acknowledges that it was not until the early days of the 20th Century and the passage of the Dick Act that Congress began to establish standards for the militia. He also noted that since 1933 members of the State Militia have taken two oaths upon enlistment; one, as a member of the Organized State Militia whose Commander-in-Chief is the Governor; and two, as a member of the National Guard of the United States whose Commander-in-Chief is the President of the United States.
I doubt is Delegate Marshall’s bill has a chance of becoming a law; and even if it does, it surely will be challenged by United States Government. Delegate Marshall needs to think about the consequences of his actions. It is the United States Government who pays the salary of the Full-Time National Guard Technicians, who pays the salary of the Active Guard (AGR), and who pays the salary of each member of the Virginia National Guard, except when in State Duty. It is also the Federal Government who provides the equipment to the Virginia Guard and who can take that equipment away. Is Delegate Marshall prepared to saddle the Commonwealth of Virginia with the cost of paying and equipping the Militia, I think not.
If Delegate Marshall is making a political statement, he has done so, and should not quietly retreat before he makes the Commonwealth of Virginia look foolish.