by Kenneth Scot Stremsky
TheGreenPapers.com Staff

Thanks for your comments about my recent vox Populi. Here is my response to your response, Mr. Berg-Andersson:

If you enlist in the regular military, Congress has the power to send you outside of our borders. If you enlist in the regular military, the President of the United States of America has the power to send you outside of our borders if Congress has not said this is not okay.

However, if you are drafted into the regular military, I believe you have the ability to say 'no' to going outside of our borders.

I would like to see an Amendment to the Constitution adopted that eliminates the draft as a possibility in the future because I do not think any government should have the power to force a person to die for it.

I consider the National Guard and the Coast Guard to be parts of the Militia. I do not believe that National Guard members, Coast Guard members, and other members of the Militia may be required to serve outside of our borders because the Militia is only supposed "to execute the Laws of the Union, suppress Insurrections and repel Invasions." (U.S. Constitution: Article I, Section 8, clause 15).

The Constitution does not say what the Militia is comprised of, which means Congress gets to say what the militia is because Article One, Section Eight also says Congress has the ability "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (Art. I, Sec. 8, clause 18).

Congress micromanaging the President of the United States of America too much I think is a bad idea which could significantly endanger national security. However, Congress did not micromanage enough and we ended up losing over 50,000 troops in Vietnam and, nowadays, very poor decision making in Iraq.

Our founders gave Congress the power "To make Rules for the Government and Regulation of the land and naval Forces" (Art. I, sec. 8, clause 14) because of the frequent and sometimes very long wars European nations got themselves into. Our founders wanted Congress to be able to check an out of control President of the United States of America when impeachment was not likely and the power of the purse was not effective enough.

Congress has the ability to wage War when the President of the United States of America is unwilling to go to War via "Letters of Marque and Reprisal." The need for "Letters of Marque and Reprisal" may be great if a future President of the United States of America is a pacifist. "Letters of Marque and Reprisal" may be granted to regular military soldiers, members of the Militia if they are willing to accept them, and mercenaries.

"Letters of Marque and Reprisal" may be used to remove ships, submarines, tanks and other weapons from the control of the President of the United States of America.

Kenneth Scot Stremsky
one-time candidate for the Republican nomination for United States Senator from New Hampshire in 2002
kstremsky1 at yahoo dot com

Mr. Berg-Andersson responds:

First of all, I want to apologize to Mr. Stremsky for at least somewhat misreading his views as regarded his position that those who have been drafted into the regular military should be able to not have to be sent beyond our borders (as opposed to those who have voluntarily enlisted). I had perceived the "horizontal" (for lack of a better term) division- between the regular military and the National Guard- in his argument (and he reiterates this "horizontal" division in his response to my response above when he says "I do not believe that National Guard members, Coast Guard members, and other members of the Militia may be required to serve outside of our borders because the Militia is only supposed 'to execute the Laws of the Union, suppress Insurrections and repel Invasions'.") but, evidently, I had not well discerned the "vertical" division in his original argument in his previous 'vox Populi', where he differentiates between enlistees and draftees within the regular military.

I would like Mr. Stremsky to know that I had absolutely no intention of at all so misinterpreting his previous comments and I hope that what I have written so far makes it clear to him, as well as to any reader of this, that I now clearly understand what he intended to convey.

I will start by noting that I myself feel that a military draft is almost always unnecessary- I, therefore, oppose such a draft on general principle, although my own reasons for this position are different from Mr. Stremsky's:

As I have pointed out in previous Commentaries and responses to 'vox Populi' on this website, in order to most successfully prosecute a war, a President needs a supermajority (say, roughly some 60-65-70 %) of the electorate in support of that war (this is one of the many lessons from the Vietnam Conflict). If there is, indeed, such a supermajority in support of said war, then it follows that at least a majority of those who would have to actually fight in that war would also be in favor of it- even if one takes into account an older generation that supports a war of which a younger generation are less in favor : presumably, then, one would not need a draft at all in such a scenario because enough young men and women would volunteer for military service.

Military drafts usually become seen as "necessary" by the powers-that-be, where not also problematic in terms of their having to deal with potential protest against such a draft, when the percentage of the younger generation supporting, and thus willing to fight in, a war drops significantly below a majority. The problem here is that the demographic math would, almost by very definition, then suggest that such a scenario would also mean that, at best, a barest majority of the electorate as a whole would be in support of the war (this, however, was largely the basis of President Nixon's concept of the so-called "silent majority" toward the end of the Vietnam era)- in other words, the generation which has to fight the war turning against it usually also indicates that overall support of the war is well short of the supermajority a President needs in order to successfully prosecute a war, as I've said.

But, if there is such a thing as civilian control and oversight of the military ("War is much too important to be left to the generals"), and I believe that just such a concept is a most important underpinning of the relationship of the military to the civilian portions of the Chain of Command in the American political and governmental system (there is a reason we have avoided military coup d'etat s and the like in our own History), then the loss of a supermajority of support for a war amongst the American People is a not all that insignificant thing!

In such a situation, a military draft smacks of Force-Politics. The historical philosopher Arnold J. Toynbee, in his multi-volume A Study of History, opined that such Force-Politics was a principal sign of the onset of the decay of a Civilization (in Toynbee's analysis, a Civilization continued to grow and thrive so long as the masses willingly followed the leadership of an elite in response to a challenge to the culture without being compelled to do so by force [Toynbee called this process mimesis- a Greek word meaning 'imitation']; when mimesis began to fail- that is, when the masses refused to respond to the leaders- it was, however unfortunately, natural for the leaders to crackdown and force the rank-and-file to comply with their wishes [of such things are dictatorships made] but such crackdowns only served to make mimesis even less likely [a dog hit with a rolled-up newspaper enough times may well eventually stop barking, but one had better sleep with one eye open when that dog is in the house at night!], forcing even more crackdowns, etc.; eventually, the social stresses induced by all of this would inevitably cause the Civilization itself to break down from within, so thought Toynbee: thus, Force-Politics is, in the main, a sign of failure on the part of the leaders, no matter how long they might remain in power as a result of such crackdowns)--

in the specific American context, a military draft is just such a sign of failure on the part of the leaders. If a President does need to have a supermajority of the American People in support of a given war but a draft must be resorted to in order to raise the military forces necessary to prosecute said war, then the President likely does not have his supermajority and, given civilian oversight of the military inherent in our constitutional system, his or her continuing to prosecute such a war has become politically dicey.

In other words: why draft young men and women to fight in a war that is losing support? Such a waste of the potential of young lives!

But my own opposition to the draft is not based on Mr. Stremsky's idea that a government should not be able to ask its young citizens to die for it per se; rather, it is based on my idea that a military draft is largely so damned unproductive.

Having said this, however- and to get off my soapbox and back to the essential subject of Mr. Stremsky's latest 'vox Populi'- there does not seem, at least to me, to be any direct constitutional prohibition against a military draft, should Congress wish to authorize one. The very provision of the U.S. Constitution that gives Congress power "[t]o raise... Armies" (Article I. Section 8, clause 12) is completely silent as to how such Armies shall be raised and, as Mr. Stremsky himself notes, there is also that provision which gives Congress power "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers" (Art. I, Sec. 8, clause 18)- including the Power in clause 12.

Therefore, if Congress wishes to institute a military draft (and one would have to presume that at least a majority of the American People would have to also so support this in order for Congress to even do so), there appears to be no constitutional bar to Congress doing so. Mr. Stremsky is, therefore, correct in noting that a Constitutional Amendment (which he supports) would be needed in order to outlaw military drafts altogether.

Where I disagree with Mr. Stremsky is re: his notion that a draftee (as opposed to an enlistee) gets to tell his superiors in the military Chain of Command that he shouldn't be sent to fight outside the United States. My feeling is that, once you are in the regular military (whether you enlisted or were drafted), you have a sworn duty to follow the lawful orders issued via the Chain of Command in any event: how you might have gotten into the Army or Navy or Air Force is of no consequence whatsoever!

It may well be different as regards the National Guard, however-- for here we are dealing with the language of Article I, Section 8, clause 15 of the Constitution which, again, reads as follows:

[The Congress shall have Power t]o provide for the calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.

It should be noted- as I already noted in my earlier response to Mr. Stremsky's previous 'vox Populi'- that all of these things for which Congress can constitutionally (if one reads the verbiage of clause 15 strictly) call forth the Militia are home-based activities: one calls forth the Militia of a State into Federal service to "execute the Laws of the Union" when ordinary law enforcement is unable (or, perhaps, even unwilling) to enforce U.S. law within the United States in a given situation; one calls forth a State's Militia into Federal service to "suppress Insurrections" here at home; one calls forth the Militia to "repel Invasions" of the American homeland.

In none of these cases is it at all necessary for Militiamen, so called into Federal service, to leave U.S. territory! The only legitimate purpose, if one reads clause 15 literally, for having federalized Militia ever cross an international border from within the United States might be pursuit (in the military sense of the term) of an invader who is in the process of so being repelled (as was the case with the National Guard units which fought under General "Black Jack" Pershing against the marauding bands of Pancho Villa raiding the Southwest U.S. from Mexico in 1916) but, reading clause 15 most literally, that's about it!

Yet it is probably nearly a century too late to now enforce such constitutional niceties, for National Guard units fought overseas with distinction in World War I and in all our country's wars thereafter, right down to the National Guard units which are now serving in Iraq, Afghanistan and elsewhere in the course of the War on Terror-- and I certainly do not want any present or former National Guardsman or National Guardswoman to think that, in my now so opining on the constitutionality (or lack thereof) of Congress authorizing, or the President sending, National Guard troops outside of the United States, I am at all unappreciative of, or even denigrating, the service the National Guard is rendering- or has rendered- to Our Country, whether overseas or here at home!

Mr. Stremsky states that "The Constitution does not say what the Militia is comprised of" but, upon a careful reading of the accounts of the proceedings in the 1787 Constitutional Convention in Philadelphia, it seems the Framers of that Document clearly understood that "the Militia" of their Constitution was that of the several States of the Union, consisting of units descended from local militia used primarily to repel Native American Indian attacks against frontier settlements during colonial times and, since the Revolution, headed by each State's Governor as the Militia's civilian Commander in Chief.

Each State's Militia was (and this is admittedly a rather simplified outline of the typical set-up) made up of the "organized militia"- made up of basic military units (more or less functioning as "companies" and usually commanded by a Captain) formed within Towns in New England, Townships in many States outside New England or, in States without Townships, some sub-County jurisdiction such as Georgia's "Militia Districts": these units were grouped into County-wide Regiments or Battalions (usually commanded by a Colonel) which, in turn, were grouped into the overall State Militia (with, again, the Governor as Commander in Chief and an Adjutant General as the top military officer)- and the "unorganized militia", made up of able-bodied men of eligible age (generally 18 years old through 45 years old) who possessed a "good musket" or, later, at least a hunting rifle and who were not part of the "organized militia" units created in their own community.

As early as 1792, a Militia Act- requiring each State to have just such an "organized" and "unorganized" militia- was passed by Congress but there was no direct Federal control, as each State remained wholly in charge of its own Militia, subject to Federal service only in case of emergency. The Federal response to the "Whiskey Rebellion" in western Pennsylvania (1794) was likely the most famous early such "calling forth" of State Militias into Federal service- President Washington himself led the militia units from a number of States so called out to "suppress" this particular "Insurrection".

So long as America fought its wars on home soil, militia units fighting side by side with regular military was not at all a problem: the land battles of both the War of 1812 and the Civil War were, of course, fought on American soil. When America's wars happened to spill over the Nation's borders, however, militia units were often reconfigured as units of "volunteers" (thus, State militiamen fought- albeit not as militiamen!- in the Mexican War and the Spanish-American War). By the turn of the last Century, however, it was becoming apparent to men such as Secretary of War Elihu Root that the legal relationship between regular military and State militia would have to be better clarified as the United States began to emerge as more of a force in the world arena then still dominated by the so-called 'Great Powers' of Europe.

In 1903, the Dick Act (named for Ohio Congressman Charles W.F. Dick who had sponsored it, though it was largely conceived by Secretary Root) was passed by Congress: this statute mandated that the "organized militia" in each State be formally renamed "the National Guard" and that this National Guard be organized and armed in the exact same way as the regular Army. Interestingly, the Dick Act and all subsequent Congressional statutes related to the National Guard (such "National Guard Acts" have made up a separate section of larger "National Defense Acts" passed by Congress over the ensuing years) maintained the existence of the "unorganized militia": thus, despite the creation and continued existence of the National Guard, a "citizens' militia" of able-bodied gunowners technically still exists in each State.

In 1913, the United States was divided into geographical units each consisting of one or more States, thus facilitating the creation of actual National Guard Divisions as an adjunct to the Regular Army (it was this that would lead to, for example, the National Guard out of Massachusetts becoming the Yankee Division, later the 26th Division [regular Army Divisions were to be numbered from 1 up to 25] or the Pennsylvania National Guard becoming the Keystone Division, eventually the 28th; meanwhile, National Guard units from Alabama, Florida, Louisiana and Mississippi [to here provide at least one example of a multi-State National Guard Division] would form the Dixie, later 31st, Division).

Once this was the case, keeping such National Guard units from fighting outside our borders- no matter the implication of the language found in Article I, Section 8, clause 15 of the Constitution which seemingly prevents this- was pretty much a "dead letter". The National Guard has, of course, been an important adjunct to the regular military, overseas as well as here at home, ever since; but, as a result, its units have had something of a schizophrenic role- as 1. the military force of a unit's home State, as 2. a peacetime force for use in relatively minor emergencies (whether natural disaster or manmade, say, riots) by either its home State or the Federal government within the United States and as 3. a wartime or major emergency adjunct to the regular military which might well be employed overseas.

The courts have never ever ruled the provisions of the National Defense Acts allowing for 3. above unconstitutional: thus, no matter the intellectual Constitutional Law argument as to what might, in fact, be the real intentions of clause 15, National Guard units sent overseas are a current reality likely here to stay for the duration.