Organizing the Militia

“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.” Article 1, Section 8, Clause 16, US Constitution

This clause is known as “organizing the militia”. The original purpose of the militia was to protect the people of the state from the federal government. The Anti-Federalists thought that the Congress would gradually let the funds for the Militia disappear. The Anti-Federalists advocated the Second Amendment to protect the citizens’ right to bear arms.

Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”

The Second Amendment did protect the right to bear arms, but the Congress still controlled the Militia. The Militias could still function as originally intended within the State, but Congress has the power to organize, discipline, and arm the Militia for federal purposes.

With the Organizing the Militia clause, the Federalists tried to make the Militia into a national reserve of uniform, interchangeable units.

In 1792, Congress passed the Uniform Militia Act. This established an “obligated” militia. This means that all able-bodied white men between the ages of 18 and 45 had to enroll. This Militia had a very poor performance during the War of 1812. The obligated militia was disbanded. After that, the “uniformed” militia replaced it. Uniformed militia means that it was made up of people who chose to serve. The National Guard replaced the uniformed militia. The National Guardsmen remain volunteers, a Citizen-Soldier.

The National Security Act of 1916 made state militias available for overseas duty as well as being used for domestic disturbances. This functionally stripped the states of militia powers. States may call up the National Guard, but federal government needs take precedence.

“We the people” originally gave Congress the power to organize, arm, and discipline the Militia. Today, that power still rests with Congress, but the intent of having the Militia protect the people of the states from the federal government no longer exists.

The “organizing the militia” clause was originally intended to allow a means for the people of a state to protect themselves from the federal government. Today, this clause allows for “we the people” to have the National Guard for protection during domestic disturbances as well as protection here or abroad as the federal government sees fit.

References:

http://www.heritage.org/constitution/#!/articles/1/essays/56/organizing-the-militia

Click to access lesson-6.pdf

US Constitution

Military Regulations

“To make rules for the government regulation of the land and naval forces;” Article 1, Section 8, Clause 14, US Constitution.

This clause is known as the Military Regulation Clause. The purpose of this clause is to establish a system of military law and justice outside the jurisdiction of the civil courts. The power to establish this was given to Congress.

Joseph Story, in Commentaries on the Constitution of the United States (1833) stated, “The whole power is far more safe in the hands of congress, than of the executive; since otherwise the most summary and severe punishments might be inflicted at the mere will of the executive.”

In 1775, the Continental Congress adopted codes of military law for the Army and Navy. John Adams wrote the law: Rules for Regulation of the Navy of the United Colonies (1775) and American Articles of War (1775).

After the adoption of the Constitution (1787), the First Congress decided both codes would continue. The two laws have been revised several times over the years.

In 1950, Congress passed the Uniform Code of Military Justice (UCMJ). The reason for creating this law was to eliminate differences between the Army and Navy codes and to reduce “command influence”.

Military courts fall into two categories:
1. Martial and military courts of inquiry – to deal with military personnel
2. Military commissions or tribunals – to deal with civilians who have fallen under military jurisdiction

Since 9/11, a controversial aspect of military justice is the establishment of military tribunals. Military tribunals in occupied territories are governed by International Law. In Dow v. Johnson (1880), the Court ruled that the law governing an army invading an enemy’s country is not the civil law of the invaded country or of the conquering country “but military law—the law of war.” Per Forte and Owens, writing for Heritage Foundation.

“The Court has upheld the authority of the President to try enemy aliens (and United States citizens working with them) by military tribunal in Ex parte Quirin (1942). The Court held that enemy aliens (in this case saboteurs, who had entered the United States in secret for the purpose of committing hostile acts) are not entitled to prisoner-of-war status, but are unlawful combatants who can be tried by military tribunal.” Per Forte and Owens, writing for Heritage Foundation.

With the Military Regulation clause, we the people give Congress the authority to establish and maintain the Uniform Code of Military Justice.
We the people get a separate court system for those in military service and civilians who fall under military jurisdiction. This system is specialized for the types of situations that arise during military service and in times of war or conflict.

References:

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

http://www.heritage.org/constitution/#!/articles/1/essays/54/military-regulations

Anchors Aweigh!

“To provide and maintain a navy;” Article I, Section 8, Clause 13, US Constitution

“The top priority of the federal government is the safety of this country.”
Ronald Reagan, Address to a joint session of the Oklahoma State Legislature, March 16, 1982

The founders did not see the same kind of danger to liberty with having a navy as they did with having a standing army. They observed throughout history that the standing army was more likely to be used by a tyrant to overthrow or rule.

Congress has the power to provide and maintain the Navy. There are no rules about the funding being re-established every two years.

They also recognized that trade by sea was necessary for the country to be stable and grow. The Navy would be charged to protect that trade.

Within the first twenty years, the navy was in use two times as Europe went to war. The British and French warships and the corsairs of the Barbary States challenged the American trade by sea. With the Navy in place, the United States was able to hold its own in the Quasi War with France (1798-1800) and the War of 1812 with the British per Mackubin Owens, Professor of National Security Affairs, US Naval War College, writing for Heritage Foundation.

With the Navy Clause, we the people give Congress the Power to maintain the Navy.

The benefit to we the people is that we have a Navy in continuous operation, ready to protect the nation when necessary.

Here is a video of the Navy Song, Anchors Aweigh. Enjoy!

References:
Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

Hannaford, Peter. The Quotable Ronald Reagan. Washington, DC: Regnery Press, 1998

US Constitution

http://www.heritage.org/constitution/#!/articles/1/essays/53/navy-clause

You’re in the Army Now

“To raise and support Armies, but no appropriation of money to that use shall be for a longer term than two years;” Article 1, Section 8, Clause 12 US Constitution

“A truly successful army is one that, because of its strength and ability and dedication, will not be called upon to fight, for no one will dare to provoke it.”

Ronald Reagan, Address to the United States Military Academy, West Point, New York, May 27, 1981

The decision to have a standing army in the Untied States was a very controversial decision for the Founders. In the writing of the Constitution and founding of this country, the Founders respected the history of the past and tried to learn from it and apply proven principles. This gave the Founders a higher margin for success. Other countries that wanted to have a free type of government threw out history and learning from the past to start something “fresh” and “new”. With no foundation, this is often unsuccessful. This was shown by the French Revolution, which occurred in the same era of history as the American founding. One reason that the French Revolution was unsuccessful was that it had no solid foundation.

In looking toward history, the Founders knew the danger of a standing army. It is a well-known principle that he who controls the army controls the government. The Founders felt that a standing army was a dangerous threat to liberty. Historically, they saw the example of Julius Caesar marching his provincial army into Rome, overthrowing the Senate, destroying the republic, and laying the foundation for his empire. In England, Oliver Cromwell used the army to abolish Parliament and rule as a dictator.

In their own lives, they had seen the British Crown forcing the American colonists to house and otherwise support their troops. The colonists saw the British Army as an occupying force. Under British law, the King had the power to raise an army and to act as its commander-in-chief. The Founders did not want the executive branch to have the power to raise an army.

On the other hand, the Founders were aware of the dangers that other countries posed to the new republic. They were also aware that there could be internal rebellion.

The solution became that the Congress would have the power to raise and fund the army. The writers felt that the Congress was the branch that would be the closest to the people and would follow the will of their constituents. This grants immense military power to the Congress. It can draft citizens into the armed forces and require them to obey military law. It can obtain the equipment and supplies necessary to allow the army to function.

With the decision to give the power of raising and supporting the Army given to Congress, they then decided that the money to fund this should never be appropriated for longer than two years at a time.

With the Army clause, we the people give Congress the authority to raise armies, pay for them, and conduct total war.
The benefit to we the people is that we have assurance that armies are available when needed; and that our representatives, who should be the people most in tune with our local needs and situations, control the armed forces.

The link below is to a song from the 1940’s – You’re in the Army Now.

Enjoy!

http://www.authentichistory.com/1939-1945/3-music/03-Defense/19401127_Youre_In_The_Army_Now-Abe_Lyman.html

Here is the Army Unofficial Song:

References:

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

Hannaford, Peter.  The Quotable Ronald Reagan.  Washington, DC: Regnery Press, 1998

http://www.heritage.org/constitution/#!/articles/1/essays/52/army-clause

Power to Declare War

“History teaches that wars begin when government believes the price of aggression is cheap.”

Ronald Reagan, Address to the nation, US Allies, and the Soviet Union, The White House, January 6, 1984

“To declare war, grant Letters of Marque and Reprisal, and make rules concerning captures on land and water;” Article 1 Section 8, Clause 11, US Constitution

Clause 11 can be divided into three separate powers that have been given to Congress. These are:
• Declare War Clause
• Marque and Reprisal Clause
• Captures Clause

Declare War Clause

Congress has the power to declare war. The President has the power to conduct war. This is an executive power vested in Article 2 of the Constitution. The President is the Commander-in-Chief of the armed forces. The President has the responsibility to repel sudden attacks or invasions as Commander-in-Chief. In 1863, the Supreme Court gave the opinion that the President “has no power to initiate or declare war,” but if there was an invasion, “the President is not only authorized but bound to resist force by force…without waiting for any special legislative authority.” (Prize Cases 1863) per John Yoo and James C. Ho, writing for Heritage Foundation.

Yoo and Ho further explain that in declaring war, the legal relationships between the warring nations are altered. The warring nations have certain rights, privileges, and protections under the laws of war. A declaration of war gives notice of the legal grounds of the war. It gives the enemy nations an opportunity to make amends and avoid the consequences of war.

Declarations of war usually cause other legal actions such as expulsion of enemy aliens, breaking diplomatic relationships, and confiscating the property of the enemy.

There have been five times when Congress has declared war. These are:
• War of 1812
• Mexican-American War 1846
• Spanish-American War 1898
• World War I
• World War II
In the case of the War of 1812, the Congress actually declared war. In the other four, Congress declared the existence of a state of war.

Congress has throughout history, authorized other hostilities, but not with a formal declaration of war.

Letter of marque given to Captain Antoine Bollo via the shipowner Dominique Malfino from Genoa, owner of the Furet, a 15-tonne privateer, 27 February 1809
Source: Wikipedia

 

Marque and Reprisal Clause

According to Wikipedia, a letter of marque and reprisal was a government license authorizing a person (known as a privateer) to attack and capture enemy vessels and bring them before admiralty courts for condemnation and sale. Cruising for prizes with a letter of marque was considered an honorable calling combining patriotism and profit, in contrast to unlicensed piracy, which was universally reviled.

A “letter of marque and reprisal” would involve permission to cross an international border to effect a reprisal (take some action against an attack or injury) authorized by an issuing jurisdiction to conduct reprisal operations outside its borders.

The Marque and Reprisal Clause plays little if any role in modern law since the United States has not issued a letter of marquee and reprisal since the War of 1812.

Captures Clause

The Capture Clause grants Congress the power to make rules for the confiscation, disposition, and distribution of captured enemy property. This clause does not apply to the capture on enemy persons. (Yoo and Ho)

Under Clause 11 of Article 1, Section 8, we the people give the authority to Congress to declare war and set up the rules for the capture of enemy property.

The benefit to we the people is assurance that after studying the facts, Congress, and only Congress, may declare war.

References:

http://en.wikipedia.org/wiki/Letter_of_marque

http://www.heritage.org/constitution/#!/articles/1/essays/49/declare-war

http://www.heritage.org/constitution/#!/articles/1/essays/50/marque-and-reprisal

http://www.heritage.org/constitution/#!/articles/1/essays/51/captures-clause

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

Hannaford, Peter. The Quotable Ronald Reagan. Washington, DC: Regnery Press, 1998

US Constitution

Define and Punish Clause

“To define and punish Piracies and Felonies committed on the high seas, and offenses against the law of nations;” Article 1, Section 8, Clause 10, US Constitution

This clause is known as the Define and Punish Clause.

It has two parts. Congress has the power to define and punish:
• Piracies and Felonies committed on the high seas
• Offenses against the law of nations

The Framers were not too concerned about defining and punishing piracy. They felt that piracy was so well defined in international law that a general statute punishing the crime would be sufficient. The current statute states: “Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.” According to Jack L. Goldsmith, Harvard Law School, writing for Heritage Foundation.

“The define-and-punish power grew out of the Founders’ concern that the states might not adequately punish infractions of the law of nations (such as attacks on ambassadors) and, in failing to do so, might thereby implicate the international responsibility of the entire United States.” Per Jack L. Goldsmith This was a weakness in the Articles of Confederation.

The law of nations seems to be a loosely defined set of concepts that are generally accepted by the people of most nations as being acceptable/unacceptable behavior. People affected by this law would be ambassadors or other representatives of the US Government and people in the military serving abroad.

Congress has used the Define and Punish Clause as a basis for enacting important civil law relating to foreign affairs, including the Foreign Sovereign Immunities Act and the Torture Victim Protection Act.

With the “define and punish” clause, we the people give Congress the power to step outside the territory of the United States to fulfill its obligation to maintain law and order.

We the people get:
• Protection for citizens and ships of the United States when abroad
• Supervision of the actions of US citizens abroad
• Protection from arguments with foreign nations as a result of actions by private citizens

References:

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

http://www.heritage.org/constitution/#!/articles/1/essays/48/define-and-punish-clause

US Constitution

Federal Courts

“Each new generation of Americans inherits as a birthright the legal protections secured, protected and expanded by the vigilance of preceding generations. These rights – freedom of speech, trial by jury, personal liberty, a representative and limited government, and equal protection of the laws, to name a few – give every citizen a vested interest in American justice.”

Ronald Reagan, Proclamation for Law Day USA, April 15, 1983

“To constitute Tribunals inferior to the Supreme Court;” Article 1, Section 8, Clause 9, US Constitution

Congress has the power to create federal courts other than the Supreme Court. It has the power to determine their jurisdiction.

Jurisdiction is defined as: The geographic area over which authority extends; legal authority; the authority to hear and determine causes of action.

The other responsibilities that Congress has regarding how the courts will operate are:
1. Deciding how many judges there will be and where they will be located.
2. Through the process of confirmation, the Congress determines which of the President’s nominees will become federal judges.
3. Congress approves the federal court budget and appropriates money for the judicial branch to operate.

There are two types of federal courts – Trial Courts, also known as District Courts and Appellate Courts.

District Courts hear all categories of federal cases, including civil and criminal matters. There are 94 federal judicial districts.

There are also two special trial courts in the federal system:
• Court of International Trade, which deals with trade and customs issues
• US Court of Federal Claims, which deals with claims for monetary damages against the US

Appellate Courts hear appeals from District Courts in its circuit. It also hears appeals from federal administrative agencies. The 94 districts are organized into 12 regional circuits.

This is a list of federal courts and other entities, which are outside the management of the judicial branch. These are:
• Military Courts
• Court of Veterans’ Appeals
• US Tax Court
• Federal Administrative Agencies and Boards

This is a chart that shows the structure of the federal court system:

(If you click on the download button under the chart, you can see an enlarged version)

View this document on Scribd

This is a web page that can provide you with additional information about the federal court system: http://www.uscourts.gov/FederalCourts.aspx

We the people give Congress that authority to establish federal courts below the level of the Supreme Court. (The Judicial Branch is detailed in Article III of the Constitution).

We the people get a system of federal courts that can be adapted to the populations and territory of the US.

References:

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

Hannaford, Peter. The Quotable Ronald Reagan. Washington, DC: Regnery Press, 1998

http://www.uscourts.gov

US Constitution

The Copyright Clause

“Individual farmers, laborers, owners, traders and managers – they are the heart and soul of development. Trust them, because whenever they are allowed to create and build, wherever they are given a personal stake in deciding economic policies and benefitting from their success, then societies become more dynamic, prosperous, progressive, and free.”
Ronald Reagan, Remarks at the International Meeting on Cooperation and Development, Cancun, Mexico, October 22, 1981

“To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Article 1, Section 8, Clause 8, US Constitution

This clause is commonly called the Copyright Clause. The language is somewhat archaic today. The term “progress of science and the useful arts” would be called intellectual property today.

Intellectual Property:
Is defined in Wikipedia as the legal concept that refers to creation of the mind for which exclusive rights are recognized. The owner is granted certain exclusive rights to a variety of intangible assets such as musical, literary, and artistic works; discoveries and inventions, and words, phrases, symbols, and designs.

Types of intellectual property rights would be copyrights, patents, and trademarks. Other intellectual rights could be industrial design rights, trade dress, and some trade secrets. Clause 8 directly addresses copyrights and patents. Trademarks are addressed under the Commerce Clause.

A copyright is defined as the exclusive legal rights to reproduce, publish, sell, or distribute the matter and form of something (as a literary, musical, or artistic work).

A patent is defined as a grant made by government that confers upon the creator of an invention the sole right to make, use, and sell that invention for a set period of time.

Trademark is defined as a symbol, word, or words legally registered or established by use as representing a company or product.

We the people give Congress the authority to pass laws which give inventors, authors, and artists, for a limited number of years, the exclusive right to make and sell the things they create.

The benefit to we the people is that we have the opportunity to use and enjoy the things created by American inventors and artists. You also have the privilege to enjoy the money and fame that may come from something that you invent or create.

References:

Online dictionaries

www. Wikipedia.org

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

Hannaford, Peter. The Quotable Ronald Reagan. Washington, DC: Regnery Press, 1998

US Constitution

My Baby Just Wrote Me a Letter

http://www.likecool.com

“To establish post offices and post roads;” Article 1, Section 8, Clause 7, US Constitution.

This clause is known as the Postal Clause. The USPS (United States Postal Service) is an independent agency of the federal government responsible for providing postal service. It is one of the few government agencies specifically authorized by the Constitution.

A Post Road is a road designated for transportation of the mail.

Under the Articles of Confederation, the Congress had the power to establish and regulate post offices. The Constitution added the power to establish postal roads.
The Congress, in implementing the Constitution, passed an act in September 1789 that established a post office and created the Office of Postmaster General.  At that time, there were 75 post offices established (under the Articles) and 2000 miles of post roads existed. Benjamin Franklin was appointed the first Postmaster General.

One would think that this clause is pretty straightforward and simple. However, over the years, legal questions have arisen. Some of these are:

1. Whether Congress should direct where post offices should be located and over what roads mail should be carried or whether Congress should construct and maintain roads and post offices in the states.

2. Did Congress have the right to prohibit circulation of certain materials such as lottery tickets?

3. During World War I, there were questions about the government’s power to ban incendiary and disloyal materials. The Supreme Court has affirmed that regulations as to what can be mailed cannot go against First Amendment rights. (First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.”)

4. More recently, questions about what kind of mailing falls under the franking privilege for members of Congress. The frank is a reproduction of the member’s signature placed on the envelope instead of a stamp. There were many questions about what constitutes the “official business” of the Congressperson. The Franking Act of 1973 was enacted to define “official business” to “cover all matters which directly or indirectly pertain to the legislative process. This Act also established two special commissions – the House Committee on Congressional Mailing Standards and the Select Committee on Standards and Conduct of the Senate. These committees provide opinions as to what is “official business”.

Regarding the Postal Clause, we the people give Congress the power to:
• Set up and operate a system for handling the mail
• Assist in developing land, water, and air routes for mail delivery

We the people get:
• Uniform postage rates
• National distribution of the mail
• Better systems of transportation and communication

References:

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

US Constitution

http://www.wikipedia.org

http://www.heritage.org/constitution/#!/articles/1/essays/45/post-office

Dealing with Counterfeits

 

“To provide for the punishment of counterfeiting the securities and current coin of the United States;” Article 1, Section 8, Clause 6, US Constitution.

The definition of counterfeit according to the online legal dictionary is:
“The process of fraudulently manufacturing, altering, or distributing a product that is of lesser value than the genuine product.”

Through the years, there have been question as to why this power is enumerated in Section 8, Clause 6 of the US Constitution.

This duty would be covered under the “Necessary and Proper Clause”, which states,

”The Congress shall have Power To …make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

This is Article 1, Section 8, Clause 18, which I will discuss in a later post. This clause allows Congress to adjust to the changing needs of the nation. It is also called the elastic clause, because it can be interpreted in a flexible manner. The punishment of counterfeiting would naturally flow from the powers to borrow money and regulate coinage according to Justice Joseph Story in his Commentaries on the Constitution of the United States.

The reason that the Constitutional Convention singled out this particular crime was to prevent the use of Bills of Attainder (to be discussed in a future post); to specifically cover the topic of foreign securities, and to make sure this was controlled by the Federal government and not the States; and to again emphasize that the Federal government controlled domestic money exchange issues, and not the States.

The law is currently interpreted to allow the Federal government to punish the act of making counterfeit money, but the States now punish the uttering or passing of counterfeit currency.

We the people give Congress the power to punish people who make counterfeit money or false government bonds or false foreign securities.

The benefit to we the people is that we have a government service that safeguards the value of money and securities.

The United States Secret Service is responsible for overseeing counterfeit information. Here is a link to an article on how to identify counterfeit currency: http://www.secretservice.gov/money_detect.shtml

References:

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

http://www.heritage.org

http://www.wikipedia.org

US Constitution

Online legal dictionary