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

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US Constitution

To Regulate Commerce

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  “When those who are governed do too little, those who govern can- and often will- do too much.”
Second Inaugural Address as Governor of California, Sacramento, January 4, 1971

“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” Article 1, Section 8, Clause 3

The few words of the Commerce Clause have a tremendous impact on the power of the Congress to regulate and control international, interstate, and Indian Tribe activity. Since the clause is so broad and undefined, it lends itself to attempts at Congressional overreach of power. Through the years, this clause has been interpreted and re-interpreted many times by the Courts.

Commerce is defined as the buying and selling of goods on a large scale and between different places.

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The first part of the clause “To regulate commerce with foreign nations” gives Congress complete and exclusive control over international commerce. This clause allows congress to pass import and export laws, to control the means of transportation of goods and services as well as communication about them, and to exercise control over the immigration process.

A positive aspect this power is that it helps to keep our commercial relationships with other countries uniform. As an example, it prevents individual states with seaports from setting their own rules, regulations, and fees.

Congress also deals with collection of tariffs on imported goods, protection from importation of diseased foods or other products, and prevention of exportation of materials that are necessary for production of goods within the United States (as in times of war).

We the people give Congress complete control over foreign commerce.

The benefit to we the people is:
• Government revenue and protection of home industries
• Safeguards to health
• Regulation of immigration
• Operation of seaports and airports
• Uniform regulation of international trade

The most controversial and often-discussed part of the clause is “to regulate commerce…and among the several States…” This is the regulation of interstate commerce; it goes hand-in-hand with Clause 1 of Section 8, the Spending (Tax and Spend) Clause. These powers have enabled our country to make the changes necessary to go from an agricultural nation to a large industrial nation. The powers enable the Congress to address problems on a uniform, national level.

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According to the Findlay’s in Your Rugged Constitution, the regulation of interstate commerce includes:
• All things that move among the states, including goods, persons, and words.
• The modes of transportation including railroads, airplanes, ships, express companies, and the waterways and airspace.

Interstate commerce refers to movement from state to state or through a state to get to another state. It also includes products that are made or mined in one state for use in another state. An example of this would be mining iron ore in Wisconsin for use in a steel mill in Illinois.

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Interstate commerce law also restricts the states in that Congress may challenge laws or taxes established by a state unconstitutional in the Courts if they interfere with interstate commerce or regulation of commerce.

The third part of the clause “to regulate commerce…with the Indian tribes;” gives the federal government the power to communicate with and oversee the activities of Indian Tribes. This allows for uniform treatment via the federal government vs. potential inconsistency of laws between the states.

We the people give Congress the authority to regulate interstate commerce and supervise trade with Indian Tribes.

The benefit to we the people is:
• Free flow of goods among the states without tariffs
• Maintenance and supervision of transportation by water, land, and air
• Prevention of the movement of harmful goods into the country
• Protection of Indians from exploitation

This post discusses the way the Commerce Clause was viewed in our country before the 1930’s. After that time, the Courts allowed the congress to expand the power of the Commerce Clause many times. Most recently, this concern was addressed in the Supreme Court decision on the Affordable Care Act. In writing about this decision, Chief Justice Roberts shows how he managed to open the way for a push-back of the broad-reaching Congressional power via the Commerce Clause. In my next post, I will discuss some aspects of the historic changes to the Congressional power of regulating commerce over the last 80 or so years.

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

Webster’s Dictionary

US Constitution

Foundational Facts

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness (property). — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

This statement is taken from our founding document, the Declaration of Independence. This was and is a revolutionary concept, that men would have a voice in the way that they are governed. This was written in 1776.

This statement tells us that our rights came from the Creator. To maintain these rights, we have government. The power of government rests with the people. We consent or agree to be governed. The people grant some of the power to the federal government, some to the states, and some they keep for themselves. The power that they do assign goes to officials who can easily be removed from office if they misuse or abuse the power given to them by the people.

The US Constitution was signed on September 17, 1787. This is the 226th year that this document has been in place. During that time, it has only been amended 27 times. The last amendment was ratified (accepted by the people) in 1992.

Four Things the Constitution does:

1. It sets the framework for our government.
2. It points out what powers the government may use.
3. It places restriction on government by telling which powers the people are keeping for themselves.
4. It provides an orderly way to make changes to the Constitution, if necessary.

Two Main Features of the Constitution:

1. It establishes a federal system of government. This means that the power to govern is divided between the national (federal) government and the states.
2. It establishes a government based on separation of powers. The danger of having too much power concentrated in the hands of one person or group of persons is that tyranny or a dictatorship could occur. Tyranny means a government in which all power is in the hands of one ruler or a harsh, cruel, or severe government. Dictator (ship) means a person who rules with total authority and often in a cruel or brutal manner.

In our government, the power is divided among three separate branches. These are the legislative, executive, and judicial. Each of these branches is constantly checking and balancing the power of the others.
These are some basic facts about the US Constitution. The concept of governance by the people is a very unique way for a people to be governed. There is something to be said for the fact that this has worked for well over two hundred years.

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

Webster’s Dictionary for Students