It Takes a Militia
The Minuteman: Restoring an Army of the People, by Gary Hart, New York: The Free Press, 188 pages, $23.00
The Framers of our Constitution had a fear of standing armies, and of governments backed by them, that one legal scholar calls "almost hysterical." A standing army of professionals, they were sure, would eventually do one of two things: agitate for foreign military adventures to keep itself employed, or turn against its civilian masters to create a military dictatorship. To these two political threats they added a third, moral danger: that citizens used to relying on professionals for the defense of their liberties would come to take their freedom lightly.
The Framers' solution was the militia, an armed body that included all citizens qualified to vote. Whites without property were also eligible for the militia, provided they were not felons, and so were some blacks. The Framers saw this broad-based military institution as a vital protection against tyranny. Politicians and professional military officers might betray the people, but the militia could not because it was the people. And although militiamen might lack the skills and training of full-time, professional soldiers, those defects would be offset by their vastly greater numbers and morale. Politicians might call out the militia to enforce the laws, but always with the risk that if the laws were unjust the militia might decide to sit things out, or even side with the opposition. Think of it as armed jury nullification.
The militia system also had an important moral component. By serving in the militia, a citizen said he was prepared to stand up for his rights, even at the cost of his life. Militia service brought together people from disparate social backgrounds and reminded them of their shared citizenship. It also bred a familiarity with military matters that helped to dispel the mystique of professional soldiers, an otherwise potent political tool of the establishment.
Unfortunately, the militia system foundered on the twin rocks of public apathy and elite dissatisfaction. Of the two, the latter was more decisive. The militia system was designed to make foreign military adventures difficult, and it did. As recently as 1912, when the federal government tried to send state militia units into Mexico, the attorney general opined that such an order was unconstitutional: Militias could be called into federal service only in cases of invasion or insurrection, not in the service of quasi-imperial ambitions abroad. Earlier efforts to invade Canada had encountered similar difficulties. This problem, coupled with a jealousy from professional military men that dated back to the Revolutionary War, led to the replacement of the militia system with the National Guard, a federally controlled force far more amenable to superpower demands.
Although the National Guard is sometimes referred to as the modern-day militia, it is in fact a federal force, subject to the control of the president in almost the same fashion as regular troops. The patina of state control that remains is almost entirely cosmetic. As Yale law professor Akhil Amar writes: "Nowadays it is quite common to speak loosely of the National Guard as `the state militia,' but 200 years ago any band of paid, semiprofessional part-time volunteers, like today's Guard, would have been called 'a select corps,' or 'select militia'–and viewed in many quarters as little better than a standing army. In 1789, when used without any qualifying adjective, `the militia' referred to all Citizens capable of bearing arms." The statute books continue to reflect this distinction in vestigial form: Title 10, Section 311 of the U.S. Code declares that all military-age males, and some females, are members of "the unorganized militia of the United States."
All of this may come as a surprise to the average American, who, thanks to media stereotyping, probably associates the term militia with tax-protesting, bogus-lien-issuing wackos, and who may even think that the National Guard is the militia that the Constitution talks about. But the classical notion of the militia and the virtues of an armed citizenry have attracted the interest of modern academics. During the last few years, such well-known constitutional scholars as Amar, Robert J. Cottrol of George Washington University, Brannon Denning of Yale Law School, William Van Alstyne of Duke Law School, and Alan Hirsch of Hartwick College have been sympathetically revisiting the old vision of the militia. Some of them have even concluded that it might be a good idea to consider bringing the classical militia back in some form.
To this number can now be added former senator and former Democratic presidential candidate Gary Hart, a founder of the liberal defense-intellectual establishment. Hart's latest book, The Minuteman: Restoring an Army of the People, makes a strong case for bringing back something very much like the classical militia, or perhaps the 20th-century Swiss version, in this post-Cold War era. Hart's argument deserves far more attention than it will probably receive if defense and foreign affairs elites have their way.
Hart opens by noting that our current military posture could be described as "Eisenhower's Nightmare": a military-industrial complex so politically and economically powerful that it has taken on a life of its own. It is Eisenhower's nightmare because the military-industrial complex that Eisenhower warned about was a creature of the Cold War, but its present-day version has survived the end of that struggle almost intact. Despite the oddity of a huge military establishment with no plausible superpower foes, this fact is rarely remarked upon. That is because almost everyone in a position to care, from members of Congress fighting military base closings to flak-jacketed journalists addicted to covering war zones, has an investment in keeping the money flowing. As Hart says, "this great machine grinds grimly, ineluctably onward, searching for villains, whether stone-throwing tribesmen or desert quacks, to justify its existence." (Compare this with what Framing-era writer Joel Barlow said about standing armies: "Thus money is required to levy armies, and armies to levy money; and foreign wars are introduced as the pretended occupation for both.")
Not only does this huge military establishment represent an enormous waste of money, Hart argues, it is also politically disastrous. As he notes, in language echoing the Framers: "A permanent standing military seeks causes for its continued existence and resources to maintain itself. A citizen army–an army of the people–participates in the debate as to why it exists, what threat it must repel, and how and where it may be used. For a democratic republic, there is a world of difference between these two institutions."
Hart takes the reader on an extended tour of modern warfare, laying out his thesis that warfare in the 21st century will be smaller in scale and more chaotic than has been typical in the 20th: more Bosnias, fewer Normandy invasions. His view on this subject is shared by many well-regarded military thinkers, which is not to say that it is necessarily right. War often manages to confound the experts' predictions. But technology seems to be pointing in the direction Hart suggests, with the implements of destruction becoming less expensive and more powerful, and with modern communications depriving huge integrated armies of the organizational advantages they once possessed. Hart's predictions may be wrong, but they are certainly plausible.
Hart's prescription represents a radical change. In short, he proposes a much smaller professional army, backed up by much larger reserve forces and, ultimately, by an entire population with military training. The professional army would provide a rapid-response force; the citizen force would provide the real muscle in any large war. The system might look very much like that used by the Swiss and outlined in Stephen Halbrook's Target Switzerland (see "Neither Nationalist nor Socialist," October). All citizens would undergo military training, followed by a short period of active duty and a lifetime of reserve status. And though Hart doesn't say this, if they follow the Swiss (and Israeli) approach, they will surely keep weapons and other equipment close at hand in their homes, making most "gun control" strategies toothless.
Hart's proposal is sure to provoke controversy, if not excoriations, within the military. Yet what is most interesting about his book is not his military doctrine but his political analysis. He devotes more space to the role of the military in a democratic republic than he does to matters of force structure, and his ideas are very close to those of the Framers. Though Hart does not view standing armies with quite the same degree of fear, he sees them as a genuine threat to freedom.
Like the Framers, Hart sees the danger as twofold: instrumental and moral. Again like the Framers, he regards the moral danger as more significant. Hart quotes military reformer John McAuley Palmer: "Standing armies threaten government by the people, not because they consciously seek to pervert liberty, but because they relieve the people themselves of the duty of self defense. A people accustomed to let a special class defend them must sooner or later become unfit for liberty."
On this point, Hart is clearly right. A citizenry accustomed to letting others
protect it is unlikely to shoulder the other necessary responsibilities of freedom. Thus, leaving aside Seven Days in May scenarios of military takeovers, a large professional military poses a threat that should not be ignored. And with the danger of military coups now receiving attention from military professionals–and even sparking articles in mainline military journals–that possibility should not be dismissed out of hand.
Hart's book should prompt much discussion among libertarians. On the one hand, universal training and military service seem too much like conscription, which libertarians traditionally oppose. On the other hand, most libertarians seem to agree with the Framers that an armed citizenry is a potent defense against tyranny, and a system of the sort that Hart proposes would certainly make the nation immune to military coups.
A rogue president could, of course, call everyone up and thus put everyone under military discipline, but that is a power Bill Clinton already enjoys under the Constitution. Article 2, Section 2 makes the president commander-in-chief of the militia when it is called into national service; as noted above, by statute the militia of the United States is every able male (and some females) between 18 and 55. Under existing law, most people would be disorganized, disarmed, and in shock as they were told what to do by military professionals. Under a system like the one Hart envisions, by contrast, those people would be armed, trained, organized, and not at all in awe of the military profession. Which approach is more likely to preserve liberty?
The Framers thought the answer was obvious. They also didn't think that militia service was the same thing as conscription, any more than jury duty constituted conscription. Thus, I would suggest that whether Hart's suggestion is favored by libertarians should turn on whether his approach, as implemented, resembles the classical militia more than the contemporary National Guard. The key question on this point would seem to be whether the populace is armed all the time, not just in active service. Telling people to show up at the federal building "or else" may be conscription, but telling those same people to show up at the federal building "and bring lots of guns and ammunition" isn't likely to promote tyranny.
It's possible, of course, that things would work out the other way: that rather than harmonizing the military with society, an approach like Hart's would militarize society. This seems quite unlikely to me, but I claim no monopoly on wisdom. At the very least, however, Hart's proposal deserves discussion. When compared with our current system, which he correctly describes as a "nightmare" in terms of its financial cost and threat to liberty, an alternative based on the classical militia may have much to offer.
Hart's book is well-written and thoroughly anchored in both military and political realities. An America that followed his recommendations would probably be less apt to become involved in ill-considered foreign wars, more resistant to tyranny, and effectively impossible to invade. This prospect is reason enough to begin the national debate that Hart calls for. Whether that debate takes place will be an interesting test of whether Eisenhower's nightmare is coming to an end.
Glenn Harlan Reynolds (reynolds@libra.law.utk.edu) is a professor of law at the University of Tennessee.