The other day I was reading George Washington’s 6th State of the Union Address (typical beach reading when you are running for office) and was surprised to see this bit:
“The devising and establishing of a well regulated militia would be a genuine source of legislative honor … I therefore entertain a hope that the present session [of Congress] will not pass without [establishing] the power of organizing, arming, and disciplining the militia, and thus providing, in the language of the Constitution, for calling them forth to execute the laws of the Union, suppress insurrections, and repel invasions.”
However, on delving further into the matter, I have come to a sad conclusion. Namely, that in that year — 1794 — both the President and Congresspersons put too much faith in a called-up militia. Where is that militia today? Who can “execute the laws of the Union?” I know a lot of laws that need execution, and there does not seem to be anyone willing to carry out that task. (Example: the crime of evidence tampering — one of my faves.)
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The title of this article, “Mary’s Moral Militia,” is a guide to the fact that I will be presenting a new sort of militia here (actually, it’s mostly an old sort, but a well-forgotten sort). I do not plan to run any militia myself; the reason for calling it Mary’s is to distinguish it from existing governmental ones. The reason for calling it a MORAL militia is to announce its mission of protecting the nation against governmental criminality.
Don’t have a heart attack thinking I will be unconstitutional, OK? Couldn’t happen. There’s lots of scope in the US Constitution for new arrangements, and that’s without even mentioning Article 10 of the Bill of Rights, which gives “to the states or to the people” everything but the kitchen sink and, quite possibly, the kitchen sink.
Our Current Holdings
Per the parchment, Congress may construct an army and a navy, and they did so. As well, Congress (marginally unconstitutionally) made an Air Force in 1948 and a Space Force in 2019. Thus, we can defend against attacks by other nations. Piece o’ cake.
But also, there’s a provision about militias in Article I, sec 8, Clause 15: “Congress shall have the Power to … provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”
And where would that militia arise from? It comes from the militia of each state: Per Clause 16: “Congress shall have Power … 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….”
Wow. It looks like Congress can do a lot. What about the President? Can she call up the militia? Well, first of all, please note that the militia mentioned in the Constitution soon morphed into an entity that we call the National Guard. All right, then, can the president call up the national guard? Nope. As we just saw, that is the responsibility of Congress.
But she can command them once they have been handed over to her, so to speak. Hence Article II, sec 2: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States when called into the actual Service of the United States.”
Statutes
The speech I quoted from George Washington occurred in 1794. He had already called up a pre-National Guard militia. That was a bunch of willing citizens; there was no conscription, per se. He needed to put down a tax-related rebellion in Pennsylvania. I quote him:
“I ordered the militia to march. …I put into motion 15K men… It has been a spectacle to see the most and the least wealthy of our citizens standing in the same ranks as private soldiers undeterred by a march of 300 miles over rugged mountains.”
The authority on which President Washington relied was the fact that Congress was not in session. He said he received a letter from a Justice that “laws were opposed [in Pennsylvania], and the execution thereof obstructed by combinations too powerful to be suppressed by the ordinary course of judicial proceedings [the miscreants had shot at a marshal].” So he deployed the militia.
In this 1794 State of the Union speech, the President said he had tried to confer and even offered pardons but ultimately had to act. He exhorted Congress to pass a law, as his involvement could extend to only 30 days once Congress was back in session. The need for a new law was based on the fact that, in May 1792, Congress created a statute with a built-in limit of two years. Its Section 2 did authorize the aforementioned kind of decision by a president.
Our Dual Fears Today
This article on MMM will be published in Five Parts. I am trying to find ways to handle two simultaneous fears that are in the American population today. One is fear of physical losses or dangers. Might disease get us all? Might weather patterns spoil the crops? Might money disappear?
The other is a fear that the grounding of society’s moral order is getting obscure. For centuries, we have had institutions to deal with the fact that people compete with one another and may cheat. But those institutions have stopped talking their usual language (or maybe they still talk it, but with blatant insincerity). In their stead comes a new brutal authority. It is accountable to no one, and it won’t help you sort out your differences with your neighbor. It doesn’t care about that stuff.
I am presently running for Congress (the Republican primary looms on September 13, 2022, in New Hampshire). This gives me the opportunity to scream “Constitution” when I’m on the hustings and get actual responses. This five-part series on Mary’s Moral Militia will deal with questions folks ask about martial law, SWAT teams, the law of self-defense, and so forth.
But first, in Part Two, I will deliver the persuasive argument by Edwin Vieira, Jr, that “the militia” referred to in the parchment is, basically, you and me. A later part will reflect my career-long research into the role of morality and its relation to power and force.
Now to end this Part I, I quote from an 1842 pamphlet by SS Nicholas of Kentucky. It’s an admonishment delivered to his contemporaries. I love admonishments (could you tell?):
“Our institutions are framed upon the broad principle, that no rightful authority can exist in any department … but by the assent of the governed. Other governments derive their powers from usage and implied assent. Not so with us. [Thank you, Mr Nicholas]….
“Listen, then, ye degenerate sons, to the warning voices and commands of your fathers while I evoke the very embodiment of all their patriotic virtue and intelligence [not mind controlled!] through their [state] constitutions: …
“New Hampshire. — In all cases and at all times, the military ought to be under strict subordination to and governed by the civil power.”
Oh, to be in New Hampshire, now that Article 26 is there!
