Guest Essayist: George Schrader, Student of Political Science at Hillsdale College

Article 1, Section 8, Clause 14-16

14:  To make Rules for the Government and Regulation of the land and naval Forces;

15:  To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

16:  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;

In discussions of the constitutional interaction between the federal government and the military, much of the conversation centers on the office of the president.  This is logical, as the president is declared the, “commander in chief of the army and navy of the United States” in Article Two of the Constitution.  What should not be overlooked, however, is the important role the legislature plays in how America’s armed forces operate.  While the president may have greater direct control over the military, especially in times of war, Congress’s powers under Article One, Section Eight provide both an important check on presidential power, as well as a means for maintaining security within the nation.

Perhaps the most prominent theme throughout this section of Article One is the intent of removing some control of the military from the president and placing it in the hands of Congress.  Examples of this are seen in Clause Fourteen’s allowance for Congress to, “make rules for the government and regulation,” of the army and Clause Fifteen’s reliance on the legislature to summon, “the militia to execute the laws of the Union.”  One may reasonably ask why the Founders, who spoke often in the Federalist Papers of having an independent and energetic executive, would make such enormous cessions of executive power to the legislature.  The answer appears to be rooted primarily in a fear of tyranny.

When one considers the concerns of average citizens during the time of the Founding, one of the most common fears was that America would slide into a tyrannical monarchy.  The most likely origin for such a monarch was the president, a suspicion supported by history.  Most popular forms of government, from the democracy of Athens to the republic of Rome, had collapsed into a tyranny once a sufficiently devious dictator found a weakness in the government’s structure.  Furthermore, these tyrants often obtained and secured their power through the use of the executive’s military control.  Examples of this abound, from Caesar in ancient Rome to Napoleon in France.  If America’s army were to overthrow the popular government it would most likely be at the behest of the president.

This fear of a powerful military president led to some problems for the Founders.  Legislatures, by their nature, make laws and do not independently enforce them.  Furthermore, it was generally understood that foreign diplomacy was best carried out by an entity separate from the legislature for reasons too nuanced to explore here.  Congress was therefore unfit to control the military by itself.  The military could also not be entirely entrusted to the states in the form of completely independent militias, as the nation’s experience under the Articles of Confederation proved that this system was too unorganized to react quickly to an emergency.  A president was literally the only solution.

Regardless of the necessity of independent executive control over the military, the Founders were still not comfortable simply allowing the president to wield unchecked control over the nation’s armed forces.  The limitations described in these clauses, along with Congress’s power over the budget, provide precisely these checks by creating situations in which the president’s normally supreme role in the military is eclipsed by the legislature.  It is interesting here to note that the limitations, particularly Clause Fourteen’s call for the legislature to create rules for the military, were carefully selected so as to only grant Congress powers that fit within its typical duties of creating law.  In this manner, the Founders reduced the threat of a military dictatorship led by an over-ambitious president without gravely distorting the purpose of the American legislature.

While not an issue which is frequently considered today, at the time of the Founding the threat of a military coup weighed heavily upon the minds of many Americans.  Though weakening the authority of the president over the military has its disadvantages, the Founders’ decision to do so in ways consistent with the purpose of Congress created perhaps the best possible compromise between presidential power and civic security.

George Schrader is a student of political science and German at Hillsdale College.

7 replies
  1. George Schrader
    George Schrader says:

    Your point it well noted. While my understanding of the posse comitatus legislation would still permit the military to act against a rebellion as dictated by the second half of clause fifteen, it does bring into question whether such an act unduly binds Congress’s hands in enforcing the law. I am of the opinion that it probably oversteps its constitutional boundaries somewhat, though in a fashion less damaging than if the clause was completely ignored by statute. Remember, the chief responsibilty of maintaining the laws’ execution falls on the president, so even though posse comitatus may weaken a safeguard, it does not seriously injure everyday constitutional governance. Still, an interesting issue that I will give more thought to.

    • Susan
      Susan says:

      First off, thank you George for your response. The thing that I note is that it seems that Congress in the case of #15 is acting as CinC as opposed to the President. Is this another hedge/remnant of the case where they were hedging against a military beholden/loyal to a single personage?

  2. Cutler
    Cutler says:

    So it was essentially an impossible-to-avoid step of faith to give the President control of the Military, but the Founding Fathers took that step with as many possible practical assurances as were available in giving Congress control over the rules of the Military, authority to summon up the militia, and the defense budget.
    It is interesting to note the unmistakable fear of tyranny and the Founding Father’s understanding of the different ways in which tyranny could manifest itself and their safeguards, in the Constitution, against it(on the one hand you have government control over everything and on the other hand you have a military dictatorship).

  3. Barb Zakszewski
    Barb Zakszewski says:

    While it is interesting to note the fear of Tyranny as the basis for much of the Constitution’s “safeguards” regarding war powers, it’s also interesting how we seem to have just that overly- ambitious president the Founders and Framers were trying to safeguard us against. Of course it does not help matters to have a Congress who only too happily shirks its Constitutional powers. We are living in dangerous times here because we do seem to have a President and Congress who completely dismiss The Constitution and seem to hold it in contempt.. God help us!!

  4. Janine Turner
    Janine Turner says:

    “Most popular forms of government, from the democracy of Athens to the republic of Rome, had collapsed into a tyranny once a sufficiently devious dictator found a weakness in the government’s structure.” Here within Mr. Shrader’s words are why the modern day thinking that our Constitution is irrelevant is so dangerous. If our leaders and our populace and our culture keep up with the blatant disregard for the Constitution – then we will end up in a dictatorship – before we know it. I thank you Mr. Shrafer for your essay and great fun to be blogging with all of you great patriots!!
    God bless,
    Janine Turner

  5. Joshua
    Joshua says:

    Whats is interesting and somewhat disturbing to me come in the case of cause 15. This provides Congress the ability to mobilize militia or military against insurrection. Yet the founders believed in standing up to tyrannical government. If the government is in concurance with what they are doing and the people deem it tyrannical. This clause give power to the federal government to mobilize against the people. In my opinion this is against what the founders intended. How does a people rise against a government that can mobilize militia against insurrection?


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