Inconclusive as to the Meaning of any Constitutional Provision
The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 39.
Considering the tumultuous circumstances in which they found themselves, even the most prominent figures among the Framers and Founders did not necessarily think through and craft their statements about the Constitution as circumspectly (or perhaps as honestly) as they might have done had they been consciously writing “for the ages” in the quiescent solitude of their own libraries.
Even such an artfully composed compendium as The Federalist Papers contains veins of tendentious political propaganda and mutually conflicting passages that unfavorably distinguish it from an objective and even-handed academic analysis of the Constitution. For example, in:
- The Federalist No. 29, Alexander Hamilton attacked those opponents of the original Constitution who…
In The Federalist No. 29, Alexander Hamilton attacked those opponents of the original Constitution who,
“apprehend[ed] danger from the militia itself in the hands of the federal government. It is observed that select corps may be formed, composed of the young and the ardent, who may be rendered subservient to the views of arbitrary power.”
Yet Hamilton himself, in that very paper, argued that “[l]ittle more can reasonably be aimed at with respect to the people at large than to have them properly armed and equipped; and in order to see that this be not neglected, * * * to assemble them once or twice in the course of a year”—and then proposed that
“[t]he attention of the government ought particularly to be directed to the formation of a select corps of moderate size, upon such principles as will really fit it for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia ready to take the field whenever the defense of the State shall require it.”
Hamilton did not explain, however, on what grounds “a select corps of moderate size”, even if well disciplined, but without significant support from the remainder of the people, could be expected to oppose a domestic “standing army” (let alone a force of foreign invaders) presumably larger in size and composed of at least equally competent soldiers. Neither did he preëmptively refute the obvious objection that the members of “a select corps” might envision themselves as separate from, independent of, and even antagonistic to the people, and thus become, not just “subservient to the views of arbitrary power”, but an actual source and instigator of such “views”. In any event, Hamilton must have been familiar with the relevant literature of the period, including the definition in Article 13 of Virginia’s Declaration of Rights of 1776 that “a well regulated militia” is “composed of the body of the people, trained to arms” (footnote 1)—with which patriots in every other State as well would doubtlessly have agreed. He surely would have known that, in common parlance, “the body of the people” meant “[a] collective mass; a joint power” and “[t]he main part; the bulk”. (footnote 2) And more likely than not he would also have been familiar with the specifically political—and radical—implication that “the body of the people” was the embodiment of constitutional democracy in its truest and best sense: incorporating and empowering the entirety of the free adult individuals from all walks of life, occupations, and economic and social classes throughout the community in service of the community’s aggregate and permanent interests. (footnote 3) Nonetheless, Hamilton frankly opposed preparing most of the citizenry for some sort of effective Militia service, other than requiring the mere personal possession of arms. Surely he realized that, even if “the people at large” were “properly armed and equipped”, they would remain otherwise unorganized, and largely if not completely undisciplined and untrained—and therefore would not constitute a “militia” at all, any more than contemporary Americans who happen to possess firearms constitute a “militia” merely as a consequence of such possession. (footnote 4)
1.) EN-1 — CHAP. I, A DECLARATION of RIGHTS made by the representatives of the good people of Virginia, assembled in full and free Convention; which rights do pertain to them, and their posterity, as the basis and foundation of government [Unanimously adopted June 12, 1776], Article 13, At a General Convention of Delegates and Representatives, from the several counties and corporations of Virginia, held at the Capitol in the City of Williamsburg, on Monday the 6th of May, 1776, in Laws of Virginia, Volume 9, at 111.
2.) S. Johnson, Dictionary, ante note 50, definition 5 in both the First (1755) and the Fourth (1773) Editions, and definitions 9 in the First Edition and 8 in the Fourth Edition.
3.) On this then-contemporary understanding of “the body” made notorious in Boston in the 1770s, see, e.g., Benjamin L. Carp, Defiance of the Patriots: The Boston Tea Party & the Making of America (New Haven, Connecticut: Yale University Press, 2010), at 99; Esther Forbes, Paul Revere & The World He Lived In (Boston, Massachusetts: Houghton Mifflin Company, 1948) at 195-196.
4.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 40-41.
Contrast Hamilton in Federalist No. 29 (above) with The Federalist No. 46 (below), in which James Madison contended that:
- The Federalist No. 46, in which James Madison contended that…
Contrast Hamilton in The Federalist No. 29 (menu above) with The Federalist No. 46 (below), in which James Madison contended that,
“[t]he only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. * * * That the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm and continue to supply the materials until it should be prepared to burst on their own heads must appear to everyone more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of a genuine patriotism. Extravagant as the supposition is, let it, however, be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government: still it would not be going too far to say that the State governments with the people on their side would be able to repel the danger. The number to which, according to the best computation, a standing army can be carried in any country does not exceed one hundredth part of the whole number or souls; or one twenty- fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.” (emphasis supplied).
Of these two, then, who was correct: Hamilton—who proposed Militia the effective portions of which would be composed merely of “select corps”; or Madison, who presumed (as any Virginian of that era would have) that the Militia would always be “composed of the body of the people, trained to arms”? (footnote 1) Could the Militia powers and duties of the General Government and the States allow such mutually contradictory results? Or perhaps should the statements of Hamilton and Madison be reconciled by reference to the pre-constitutional practice—with which they both were surely familiar—of creating special units within the Militia (such as “Minutemen” and “Rangers”) to which were tolled off the men most capable of performing arduous duties, with other men assigned to less-rigorous ordinary service, yet with all of them at least minimally trained for any tasks they might be called upon to fulfill in an emergency?
Examples such as these prove that random statements drawn from the Framers, Founders, or other American patriots in the late 1700s cannot always—and, really, should never—be naively accepted at face value, but must instead be read critically in their peculiar historical contexts and then checked for accuracy by reference to some other, independent, objective, verifiable, and (if possible) unimpeachable sources capable of providing standards by means of which to winnow the wheat from the chaff. That being the case, though, such other sources can better serve in the first instance as authorities for the substance of the statements than can the statements themselves—thus rendering the statements at best cumulative and even supererogatory simply as a consequence of proving their accuracy. (footnote 2)
The fundamental rule of construction of the Constitution is what has become known as “original intent”, which was already hundreds of years old when the Constitution was written.
1.) Virginia Declaration of Rights (1776), art. 13 (emphasis supplied).
2.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 42.