call out the militia is other than a power expressly limited to three cases. One of these must exist as a condition precedent to the exercise of that power—Unless the laws shall be opposed, or an insurrection shall exist, or an invasion shall be made, Congress, and of consequence the President as their organ, has no more power over the militia than over the armies of a foreign nation.
But if the declaration of the President should be admitted to be an unerring test of the existence of these cases, this important power would depend, not upon the truth of the fact, but upon executive infallibility; and the limitation of the power would consequently be nothing more than merely nominal, as it might always be eluded. It follows therefore that the decision of the President in this particular cannot be conclusive. It is as much the duty of the State authorities to watch over the rights reserved, as of the United States to exercise the power which are delegated.
The arrangement of the United States into military districts, with a small portion of the regular force, under an officer of high rank of the standing army, with power to call for the militia, as circumstances in his judgment may require; and to assume the command of them, is not warranted by the Constitution or any law of the United States. It is not denied that Congress may delegate to the President of the United States the power to call forth the militia in the cases which are within their jurisdiction—But he has no authority to substitute military prefects throughout the Union, to use their own discretion in such instances. To station an officer of the army in a military district without troops corresponding to his rank, for the purpose of taking command of the militia that may be called into service, is a manifest evasion of that provision of the Constitution which expressly reserves to the States the appointment of the officers of the militia; and the object of detaching such officer cannot be well conceived to be any other, that that of superseding the Governour or other officers of the militia in their right to command.
The power of dividing the militia of the States into classes, and obliging such classes to furnish by contract or draft, able bodied men, to serve for one or more years for the defence of the frontier, is not delegated to Congress. If a claim to draft the militia for one year for such general object be admissible, no limitation can be assigned to it, but the discretion of those who make the law. Thus with a power in Congress to authorise such a draft or conscription, and in the Executive to decide conclusively upon the existence and continuance of the emergency, the whole militia may be converted into a standing army disposable at the will of the President of the United States.
