Federalism and the Military Power of the United States

Abstract

This Article examines the original meaning of the constitutional provisions governing the raising and organization of military forces. It argues that the Framers carefully divided the military between the federal and state governments. This division provided structural checks against the misuse of military power and made it more difficult to use offensive military force. These structural checks have been compromised by the creation of the U.S. Army Reserve, the dual enlistment of National Guard officers and soldiers, and the acceptance of conscription into the national army, all of which have enhanced federal military power beyond its original constitutional limits.

This Article then explains the relevance of deviations from original constitutional design for contemporary legal disputes. Most significantly, although the expansion of federal military power has largely come at state expense, this expansion has also disturbed the allocation of war powers between Congress and the president. In addition, understanding the original division of military power is relevant to determining modern limits on Congress’s power to raise and regulate the armed forces, including its power to impose military criminal jurisdiction on reserve soldiers.

Keywords: Army Reserve, bear arms, conscription, constitutional law, draft, federalism, militia, National Guard, originalism, Second Amendment, separation of powers, Uniform Code of Military Justice, War Powers Act

JEL Classification: K10