Jonah Patel
The US Constitution gives Congress the power to raise and support Armies, but with a two-year limit on appropriations. This was prompted by a fear of standing armies, and some argue it was meant to restrict the ability to establish one. However, others interpret this clause as only requiring the appropriation to be renewed every two years, and Solicitor-General Hoyt ruled in 1904 that it did not limit appropriations for the various means an army may use. The Supreme Court has upheld the constitutional validity of compulsory military service, dismissing objections that it violates the Thirteenth Amendment.
| Characteristics | Values |
|---|---|
| Congress's power | To declare war, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water |
| To raise and support Armies, but no appropriation of money for this shall be for longer than two years | |
| To provide and maintain a Navy | |
| To make Rules for the Government and Regulation of the land and naval Forces | |
| Supreme Court's power | To reject contentions that compulsory military service would violate the Thirteenth Amendment |
| To uphold the power of Congress to mobilize an army |
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What You'll Learn
Congress can raise and support armies
The US Constitution grants Congress the power to raise and support armies. This power is derived from the Constitution's clauses 11, 12, 13, and 14, which outline Congress's authority in matters of war and the armed forces. The framers of the Constitution were aware of the potential dangers of standing armies, as they had been used to the detriment of liberties in England. As such, they included a limitation on the appropriation of money for the army, stating that "no appropriation of money to that use shall be for a longer term than two years."
The power to raise and support armies includes the ability to classify, conscript, and regulate manpower for military service. This power has been upheld by the Supreme Court, which has recognised Congress's broad constitutional power in this area. The Court has specifically noted that the power to mobilise an army is distinct from the authority to call upon the militia and is not limited by it.
Throughout US history, there have been debates and challenges regarding compulsory military service. During the Revolutionary War, at least nine states sanctioned compulsory military service. In 1812, then-Secretary of War James Monroe proposed the conscription of men for the army, but peace was declared before the bill could be enacted. A compulsory draft law was adopted in 1863 without being challenged in federal courts. However, the Selective Service Act of 1917 was attacked on several grounds, including that it deprived states of their right to a "well-regulated militia" and imposed involuntary servitude in violation of the Thirteenth Amendment. The Supreme Court rejected these contentions, upholding the constitutional validity of compulsory military service.
In summary, Congress has the explicit power under the US Constitution to raise and support armies, including the ability to classify, conscript, and regulate manpower for military service. This power has been challenged and upheld throughout history, with the Supreme Court recognising Congress's broad authority in matters pertaining to the armed forces.
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Congress can declare war
The US Constitution grants Congress the power to "declare war, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water". This is known as the Declare War Clause.
The Declare War Clause has been interpreted in different ways. Some argue that it gives Congress a narrow power to formally communicate about war. However, this interpretation is difficult to reconcile with the fact that the President generally serves as the nation's voice in foreign affairs. Leading framers, such as Hamilton, seemed to view the clause as a check on the President's power. He wrote in 1793 that “ [t]he legislature alone” can “plac [e] the nation in a state of war. This suggests that the framers intended for the meaning of "declare war" to be broader than just formal declarations.
The Supreme Court has also weighed in on the Declare War Clause, holding that the President cannot initiate hostilities without Congress's approval. For example, in Bas v. Tingy (1800), the Court referred to Congress's broad powers over war-making. And in the Prize Cases in 1863, the Court upheld President Lincoln's blockade of the southern states after their attack on Fort Sumter, but did not specify whether his authority came from Article II or specific statutes passed by Congress.
In modern times, courts have generally avoided deciding war-initiation cases on their merits, instead relying on rules that limit the types of disputes courts can resolve. Despite this, most scholars and commentators agree that presidential uses of force are consistent with the Declare War Clause if they fall within certain categories. Firstly, Presidents may use military force if specifically authorized by Congress, either through a formal declaration of war or informal statutory authorization. Secondly, deployment as peacekeepers may not require Congress's approval if it does not involve the country in war. Thirdly, involvement in low-level hostilities or using force against non-state actors may not rise to the level of war in the constitutional sense. And finally, using force under the authority of the United Nations may substitute for approval by Congress.
In conclusion, while the specific interpretation of the Declare War Clause may vary, there is a general consensus that Congress plays a crucial role in authorizing the use of military force and declaring war.
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States' compulsory military service
The topic of compulsory military service in the United States is a highly controversial one, with a range of opinions and arguments for and against its implementation. While the US has never had a national service mandate, federal law does allow for compulsory conscription for militia service under emergency or extraordinary security conditions.
Arguments in favour of compulsory military service
Some argue that compulsory military service is constitutional, citing the statement: "The Congress shall have Power... To raise and support Armies" (Constitution). They claim that since Congress has the power "to raise and support armies", they also have the power to mandate military service. Supporters of conscription also argue that it would ensure adequate protection for the nation by guaranteeing a consistent number of people in the military to defend against any kind of threat. Additionally, they believe it would benefit citizens individually by increasing fitness and discipline. A 2023 survey found that 75% of young people aged 18-24 supported an 18-month mandatory national service program, provided they received compensation and could choose between civilian and military service.
Arguments against compulsory military service
Opponents of compulsory military service argue that it is unconstitutional, citing the statement: "Neither slavery nor involuntary servitude... shall exist within the United States" (Constitution). They claim that conscription violates the Constitution, particularly the term "involuntary servitude". They also argue that it could cause economic loss and disruptions in education and career paths, potentially harming the current and future state of the nation. Additionally, some are concerned about the protection of the rights of conscientious objectors. In 1917, the Selective Service Act was attacked on similar grounds, with opponents arguing that it deprived states of the right to a "well-regulated militia" and imposed involuntary servitude in violation of the Thirteenth Amendment.
History of compulsory military service in the US
The history of compulsory military service in the US dates back to colonial times, with the Thirteen Colonies using a militia system for defence. During the Revolutionary War, at least nine states sanctioned compulsory military service. In 1863, a compulsory draft law was adopted without being challenged in the federal courts. However, the Selective Service Act of 1917 faced opposition, with the Supreme Court rejecting arguments that it violated the Constitution. While the US has not enacted peacetime conscription in recent history, it has been considered during times of war, such as World War I and World War II, with public opinion varying over time.
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Congress' power to mobilise an army
The U.S. Constitution grants Congress considerable powers to oversee the military and ensure its functionality. These powers are outlined in Article 1, which focuses on Congress and its role in government.
Congress has the power to raise and support an Army, as stated in Article 1, Clauses 11, 12, 13, and 14 of the Constitution. This includes the authority to provide for the common defence, declare war, make rules and regulations for the military, and purchase land for military bases. The power to raise an army is seen as an indispensable incident to the power to declare war, as expressed by Joseph Story, who said, "the power to raise an army is an indispensable incident to the power to declare war; and the latter would be literally [ineffective] without the former."
Congress has held this power since the founding of the United States and has used it to shape various aspects of the military. For example, Congress has set up a system of criminal law binding on all servicemen, with its own courts, procedures, and appeals processes. Congress can also supersede parents' control of minor sons needed for military service and exempt soldier income from state taxes. Additionally, Congress passes the National Defense Authorization Act (NDAA) annually, setting policy and funding priorities for the military.
However, there are limitations to Congress's power over the military. The Constitution states that "no appropriation of money to that use shall be for a longer term than two years." This limitation was prompted by the fear of standing armies. In 1904, Solicitor-General Hoyt clarified that this limitation did not extend to appropriations for various means deemed necessary for the common defence.
While Congress has significant power over the military, the President, as commander-in-chief, also has broad authority to make decisions affecting the military, especially during wartime, including determining troop movements and developing combat strategies.
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Congress' authority over the militia
The US Constitution grants Congress the power to ""organize, arm, and discipline" the militia, a national military force. This power is derived from Article 1, Section 8, Clauses 15 and 16 of the Constitution, which outline Congress's authority to "provide for organizing, arming, and disciplining, the Militia".
The Militia Act of 1903 defines two classes of militia in the United States: the organized militia, consisting of the National Guard and Naval Militia, and the unorganized militia, or reserve militia, which includes all able-bodied men aged 17 to 45 who are not members of the National Guard or Naval Militia. The definition of the militia has evolved over time, previously encompassing all able-bodied men within a certain age range during colonial America, with individual towns forming local independent militias for self-defence.
Congress's authority over the militia includes the power to mobilize and govern it, as well as to prescribe penalties for failure to obey the President's call to service. The states retain the authority to appoint officers and train the militia according to the discipline prescribed by Congress. The Federal Government may call upon the militia in cases of civil war or to suppress rebellion.
While the Constitution grants Congress the power to raise and support armies, there is a limitation on the appropriation of money for this purpose to a term of two years. This was included to address the fear of standing armies. The Supreme Court has upheld the constitutional validity of compulsory military service, rejecting contentions that it violates the Thirteenth Amendment or deprives states of their right to a "well-regulated militia."
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Frequently asked questions
The US Constitution does restrict the ability to establish an army in that it states that "no appropriation of money to that use shall be for a longer term than two years". This was inserted due to the fear of standing armies. However, the Supreme Court has rejected contentions that compulsory military service is unconstitutional.
This phrase restricts the amount of money that can be appropriated for the use of the army to a two-year term. However, there is no limit on re-appropriations.
No, there has never been a court case about the constitutionality of a standing army. However, there have been two Attorney General decisions on the topic (in 1904 and 1948) that ruled that contracts for the use of patents in constructing military equipment were lawful.
Yes, the Selective Service Act of 1917 was attacked on the grounds that it deprived the states of the right to a well-regulated militia and that it imposed involuntary servitude in violation of the Thirteenth Amendment. However, these challenges were unsuccessful and the Supreme Court upheld the power of Congress to mobilize an army.
