Constitutional history -- United States -- Sources; Constitutional law -- United States
In order to cast an odium upon the power of calling forth the militia
to execute the laws of the Union, it has been remarked that there is
nowhere any provision in the proposed Constitution for calling out the
POSSE COMITATUS, to assist the magistrate in the execution of his duty,
whence it has been inferred, that military force was intended to be his
only auxiliary. There is a striking incoherence in the objections which
have appeared, and sometimes even from the same quarter, not much
calculated to inspire a very favorable opinion of the sincerity or fair
dealing of their authors. The same persons who tell us in one breath,
that the powers of the federal government will be despotic and
unlimited, inform us in the next, that it has not authority sufficient
even to call out the POSSE COMITATUS. The latter, fortunately, is as
much short of the truth as the former exceeds it. It would be as absurd
to doubt, that a right to pass all laws NECESSARY AND PROPER to execute
its declared powers, would include that of requiring the assistance of
the citizens to the officers who may be intrusted with the execution of
those laws, as it would be to believe, that a right to enact laws
necessary and proper for the imposition and collection of taxes would
involve that of varying the rules of descent and of the alienation of
landed property, or of abolishing the trial by jury in cases relating
to it. It being therefore evident that the supposition of a want of
power to require the aid of the POSSE COMITATUS is entirely destitute
of color, it will follow, that the conclusion which has been drawn from
it, in its application to the authority of the federal government over
the militia, is as uncandid as it is illogical. What reason could there
be to infer, that force was intended to be the sole instrument of
authority, merely because there is a power to make use of it when
necessary? What shall we think of the motives which could induce men of
sense to reason in this manner? How shall we prevent a conflict between
charity and judgment?
By a curious refinement upon the spirit of republican jealousy, we are
even taught to apprehend 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 ardent, who may be rendered
subservient to the views of arbitrary power. What plan for the
regulation of the militia may be pursued by the national government, is
impossible to be foreseen. But so far from viewing the matter in the
same light with those who object to select corps as dangerous, were the
Constitution ratified, and were I to deliver my sentiments to a member
of the federal legislature from this State on the subject of a militia
establishment, I should hold to him, in substance, the following
discourse:
Public-domain text, read in full here on John Shaqi.
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