Inside the Cypherpunks Cult (fwd)

Mark M. markm at
Sun Aug 24 12:18:48 PDT 1997


On 23 Aug 1997, Firebeard wrote:

> MM> The militia is different from the military force.
> 	It is?  It seems to me that military force is military force,
> regardless of what uniforms it's dressed in.  I forgot that it's so
> much nicer to be shot by the New Jersey National Guard than the US
> Marine Corps.  And Washington sent in the militia only because he
> didn't have enough 'regular' troops.

The states have more control over the militia than the federal government.
Also, it is important to keep in mind, that at the time the Constitution
was ratified, the militia consisted of every able-bodied, white man between
the ages of 18 and 45.  Because the militia consisted of "ordinary" people
instead of professional soldiers, it was not seen as a risk to liberty
like a standing army, much in the same way that trial by jury is not as
dangerous to liberty as trial by a military commission.  Hamilton wrote
in Federalist #24:

"There is something so far-fetched and so extravagant in the idea of
danger to liberty from the militia, that one is at a loss whether to
treat it with gravity or with raillery... .  Where in the name of
common-sense, are our fears to end if we may not trust our sons, our
brothers, our neighbors, our fellow-citizens?  What shadow of danger
can there be from men who are daily mingling with the rest of their
countrymen... ."

> MM> The U.S. Constitution explicitly states in Article I, Section 8,
> MM> that the militia may be called forth (by the federal government)
> MM> to enforce federal law.  The army and other military forces,
> MM> however, were not given this power
> 	But they were not explicitly denied it, either.

The purpose of the Constitution was not to explicitly deny certain powers
of the federal government, but to explicitly grant powers to the federal
government.  The ninth and tenth amendments make this very clear.

> MM> and were not intended to be permanent establishments, either.
> 	Agreed.  Has anyone ever attempted to sue the US Army as being
> unconstitutional, given the prohibition of a standing army?

The army can only be funded for two years at a time.  Congress renews
funding every two years to the army.  The army cannot exist without
Congress' approval.  A prohibition of a "standing army" would not have
been very meaningful given that there is no clear definition of this

> MM> Over a hundred years ago, the Posse Comitatus Act was passed which
> MM> forbid the military from arresting or questioning American
> MM> citizens.
> 	Ah, Congress had to pass a law to ban it, eh?  Well, what
> Congress giveth, Congress can taketh away - and did.  I don't recall
> the exact law or bill, but they exempted the military from the Posse
> Comitatus Act in one of the 'War on Drugs' laws.

The "drug war" activities of the army are perfectly within the limits of
the Posse Comitatus Act.  Military officers watch out for drug
traffickers and call out law enforcement to make an arrest.  The military
cannot make any arrests themselves.  This probably violates the spirit of
the Posse Comitatus Act, but not the letter.  I'm not exactly sure of the
historical context of the Posse Comitatus Act, but I do think it was
passed in reaction to the powers the president gained during the Civil War.
Lincoln suspended the writ of habeas corpus and instituted martial law
without Congress' approval, which is almost certainly unconstitutional.
As late as 1870, some people were still being tried by military commission
even though the Civil War had already ended.  This was probably the case of
Congress reacting to an unconstitutional exercise of power on the part of
the president and the military rather than abolishing a constitutionally
protected practice.

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