Constitutional history -- United States -- Sources; Constitutional law -- United States
From the same source, the people of America may be said to have derived
an hereditary impression of danger to liberty, from standing armies in
time of peace. The circumstances of a revolution quickened the public
sensibility on every point connected with the security of popular
rights, and in some instances raise the warmth of our zeal beyond the
degree which consisted with the due temperature of the body politic.
The attempts of two of the States to restrict the authority of the
legislature in the article of military establishments, are of the number
of these instances. The principles which had taught us to be jealous
of the power of an hereditary monarch were by an injudicious excess
extended to the representatives of the people in their popular
assemblies. Even in some of the States, where this error was not
adopted, we find unnecessary declarations that standing armies ought not
to be kept up, in time of peace, WITHOUT THE CONSENT OF THE LEGISLATURE.
I call them unnecessary, because the reason which had introduced a
similar provision into the English Bill of Rights is not applicable
to any of the State constitutions. The power of raising armies at all,
under those constitutions, can by no construction be deemed to
reside anywhere else, than in the legislatures themselves; and it was
superfluous, if not absurd, to declare that a matter should not be done
without the consent of a body, which alone had the power of doing it.
Accordingly, in some of these constitutions, and among others, in that
of this State of New York, which has been justly celebrated, both
in Europe and America, as one of the best of the forms of government
established in this country, there is a total silence upon the subject.
It is remarkable, that even in the two States which seem to have
meditated an interdiction of military establishments in time of
peace, the mode of expression made use of is rather cautionary than
prohibitory. It is not said, that standing armies SHALL NOT BE kept up,
but that they OUGHT NOT to be kept up, in time of peace. This ambiguity
of terms appears to have been the result of a conflict between jealousy
and conviction; between the desire of excluding such establishments
at all events, and the persuasion that an absolute exclusion would be
unwise and unsafe.
Can it be doubted that such a provision, whenever the situation of
public affairs was understood to require a departure from it, would be
interpreted by the legislature into a mere admonition, and would be made
to yield to the necessities or supposed necessities of the State? Let
the fact already mentioned, with respect to Pennsylvania, decide. What
then (it may be asked) is the use of such a provision, if it cease to
operate the moment there is an inclination to disregard it?
Public-domain text, read in full here on John Shaqi.
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