State Documents on Federal Relations/29
29. Extract from the Opinion of the Judges of Massachusetts on the Militia Question, 1812.[1]
On the construction of the Federal and State constitutions must depend the answers to the several questions proposed. As the militia of the several states may be employed in the service of the United States, for the three specific purposes of executing the laws of the Union, of suppressing insurrections, and of repelling invasions, the opinion of the judges is requested, whether the Commanders-in-Chief of the militia of the several states have a right to determine whether any of the exigencies aforesaid exist, so as to require them to place the militia, or any part of it, in the service of the United States, at the request of the President, to be commanded by him pursuant to acts of Congress.
It is the opinion of the undersigned, that this right is vested in the Commanders-in-Chief of the militia of the several states.
The Federal Constitution provides, that whenever either of these exigencies exist, the militia may be employed, pursuant to some act of Congress, in the service of the United States; but no power is given, either to the President or to Congress, to determine that either of the said exigencies do in fact exist. As this power is not delegated to the United States by the Federal Constitution, nor prohibited by it to the states, it is reserved to the states, respectively; and from the nature of the power, it must be exercised by those with whom the states have respectively entrusted the chief command of the militia.
It is the duty of these commanders to execute this important trust, agreeably to the laws of their several states, respectively, without reference to the laws or officers of the United States, in all cases, except those specially provided in the Federal Constitution. They must, therefore, determine whether either of the special cases exist, obliging them to relinquish the execution of this trust, and to render themselves and the militia subject to the command of the President. A different construction, giving to Congress the right to determine when these special cases exist, authorizing them to call forth the whole of the militia, and taking them from the Commanders-in-Chief of the several states, and subjecting them to the command of the President, would place all the militia, in effect, at the will of Congress, and produce a military consolidation of the states, without any constitutional remedy against the intentions of the people, when ratifying the Constitution. Indeed, since passing the act of Congress of February 28, 1795, chapter 101, vesting in the President the power of calling forth the militia when the exigencies mentioned in the Constitution shall exist, if the President has the power of determining when those exigencies exist, the militia in the several states is, in effect, at his command, and subject to his control.
No inconvenience can reasonably be presumed to result from the construction which vests in the Commanders in Chief of the militia, in the several states, the right of determining when the exigencies exist, obliging them to place the militia in the service of the United States. These exigencies are of such a nature, that the existence of them can be easily ascertained by, or made known to, the Commanders in Chief of the militia; and when ascertained, the public interest will produce prompt obedience to the acts of Congress.
Another question proposed to the consideration of the judges, is, whether, when either of the exigencies exist, authorizing the employing of the militia in the service of the United States, the militia thus employed can be lawfully commanded by any officer not of the militia, except by the President of the United States?
* * * The officers of the militia are to be appointed by the states, and the President may exercise his command of the militia by officers of the militia, duly appointed; but we know of no constitutional provision authorizing any officer of the army of the United States to command the militia, or authorizing any officer of the militia to command the army of the United States. The Congress may provide laws for the government of the militia when in actual service; but to extend this power to placing them under the command of an officer not of the militia, except the President, would render nugatory the provision that the militia are to have officers appointed by the states. * * *
- ↑ Signed by Judges Parsons, Sewall and Parker.