Gary Hart makes a strong
case for bringing back something very much like the classical militia in this post-Cold War era. |
It Takes a Militia
by Glenn
Harlan Reynolds, Professor of Law, University of Tennessee
The Framers of
our Constitution had a fear of standing armies, and of governments backed
by them, that one legal scholar calls "almost hysterical." A standing army
of professionals, they were sure, would eventually do one of two things:
agitate for foreign military adventures to keep itself employed, or turn
against its civilian masters to create a military dictatorship. To these
two political threats they added a third, moral danger: that citizens used
to relying on professionals for the defense of their liberties would come
to take their freedom lightly.
The Framers'
solution was the militia, an armed body that included all citizens qualified
to vote. Whites without property were also eligible for the militia, provided
they were not felons, and so were some blacks. The Framers saw this broad-based
military institution as a vital protection against tyranny. Politicians
and professional military officers might betray the people, but the militia
could not because it was the people. And although militiamen might lack
the skills and training of full-time, professional soldiers, those defects
would be offset by their vastly greater numbers and morale. Politicians
might call out the militia to enforce the laws, but always with the risk
that if the laws were unjust the militia might decide to sit things out,
or even side with the opposition. Think of it as armed jury nullification.
The militia
system also had an important moral component. By serving in the militia,
a citizen said he was prepared to stand up for his rights, even at the
cost of his life. Militia service brought together people from disparate
social backgrounds and reminded them of their shared citizenship. It also
bred a familiarity with military matters that helped to dispel the mystique
of professional soldiers, an otherwise potent political tool of the establishment.
Unfortunately,
the militia system foundered on the twin rocks of public apathy and elite
dissatisfaction. Of the two, the latter was more decisive. The militia
system was designed to make foreign military adventures difficult, and
it did. As recently as 1912, when the federal government tried to send
state militia units into Mexico, the attorney general opined that such
an order was unconstitutional: Militias could be called into federal service
only in cases of invasion or insurrection, not in the service of quasi-imperial
ambitions abroad. Earlier efforts to invade Canada had encountered similar
difficulties. This problem, coupled with a jealousy from professional military
men that dated back to the Revolutionary War, led to the replacement of
the militia system with the National Guard, a federally controlled force
far more amenable to superpower demands.
Although the
National Guard is sometimes referred to as the modern-day militia, it is
in fact a federal force, subject to the control of the president in almost
the same fashion as regular troops. The patina of state control that remains
is almost entirely cosmetic. As Yale law professor Akhil Amar writes: "Nowadays
it is quite common to speak loosely of the National Guard as 'the state
militia,' but 200 years ago any band of paid, semiprofessional part-time
volunteers, like today's Guard, would have been called 'a select
corps,' or 'select militia' -- and viewed in many quarters as little
better than a standing army. In 1789, when used without any qualifying
adjective, 'the militia' referred to all citizens capable of bearing arms."
The statute books continue to reflect this distinction in vestigial form:
Title 10, Section 311 of the U.S. Code declares that all military-age males,
and some females, are members of "the unorganized militia of the United
States."
All of this may come as a surprise to the average American, who, thanks
to media stereotyping, probably associates the term militia
with tax-protesting, bogus-lien-issuing wackos, and who may even think
that the National Guard is the militia that the Constitution talks about.
But the classical notion of the militia and the virtues of an armed citizenry
have attracted the interest of modern academics. During the last few years,
such well-known constitutional scholars as Amar, Robert J. Cottrol of George
Washington University, Brannon Denning of Yale Law School, William Van
Alstyne of Duke Law School, and Alan Hirsch of Hartwick College have been
sympathetically revisiting the old vision of the militia. Some of them
have even concluded that it might be a good idea to consider bringing the
classical militia back in some form.
To this number can now be added former senator and former Democratic presidential
candidate Gary Hart, a founder of the liberal defense-intellectual establishment.
Hart's latest book, The Minuteman: Restoring an Army of the People
(New
York: The Free Press, 188 pages, $23.00 -- $16.10
at Amazon.com) makes a strong case for bringing back something
very much like the classical militia, or perhaps the 20th-century Swiss
version, in this post-Cold War era. Hart's argument deserves far more attention
than it will probably receive if defense and foreign affairs elites have
their way. Hart opens by noting that our current military posture could
be described as "Eisenhower's Nightmare": ...
(This is less than half the article / book review. The whole article begins on page 70 of the May, 1999 issue of Reasonmagazine HERE.) Subscribe to Reason HERE.