16. How Early Americans Decentralized Military Power

Since the Second World War, the American regime has greatly expanded military spending and military operations far above and beyond what had been the case before the war. Many view this as a positive development, and those who favor an active and interventionist posture for American military affairs have frequently criticized American policy before the war as “isolationist.” More specifically, critics of pre-war policy contend the US lacked the military spending, personnel, and materiel necessary to meet the needs of defense for the United States in an increasingly globalized world.

The charge of “isolationism,” however, rather exaggerates the US’s military posture before the twentieth century, and it is not the case that American policymakers were especially pacifistic before the Second World War. This can be seen in a multitude of military interventions carried out by the US regime in earlier decades. We can point to full-scale wars, of course, like the First World War and the Spanish-American War, but we can also note smaller-scale interventions such as those in Korea (1888–89, 1894–96) the Philippines (1898–1946), and a multitude of interventions in Latin America dating back to the 1840s.

What was different about the nineteenth century, however, was that land-based military forces tended to be much more temporary, ad hoc, and limited in size. This was by design.

As with most other governmental prerogatives, the federal government’s military powers were decentralized, with most military power to be held within the member states themselves. Many of the early American liberals assumed it was best to decentralize military power to lessen the chances of abuse by a central government.

A Limit on Military Capability as a Limit on Regime Power

The idea that a regime’s military forces—especially its land-based forces—ought to be restrained was a key component of the ideological program of the classical liberals who had fought in the American Revolution.

As Americans debated what ought to be the full extent of federal power, many Americans continued to fear that a strong national government would simply replace the British crown in terms of military might and coercive power.

These fears date back at least to the English Civil War, and the time of the Levellers, whom Murray Rothbard described as “the world’s first self-consciously libertarian movement.”1  By the 1640s, Leveller reformers were calling for a decentralized militia system which would lessen the power of the king in domestic affairs. In The Levellers: Radical Political Thought in the English Revolution, Rachel Foxley writes: 

In the Third Agreement of the People, in May 1649, the Levellers proposed that armed forces were to be raised strictly by local divisions, and officered by men elected locally; only the general officers were to be appointed by Parliament. [John] Wildman was to express similar views in more specifically republican terms in the 1650s, opposing “mercenary” armies in favour of the people being “masters of their own Arms”...2

The years of Civil War would be disorienting in terms of military power, but, as British historian Marcus Cunliffe explains in his history of American military institutions:

At the restoration of the Stuarts in 1660, both Charles II and Parliament would for different reasons have liked to be rid of the Cromwellian legacy of the New Model Army. But some troops were needed to keep order. A compromise was reached. First, a small regular force was to be maintained: this was the actual foundation of the British standing army. Second, there was to be a nationwide militia, composed of civilians who would—as in earlier days—be summoned in time of need. The militia, however, was to be under civil law, and to be organized locally by the lord lieutenant of each county. It was thus decentralized and divorced from royal control.3

Cunliffe further explains that later American attitudes toward a standing army were adopted nearly wholesale from earlier English attitudes about militias and civil control of the military. These attitudes can be found in the Declaration of Independence itself which lists among its grievances the fact that the king “has kept among us, in times of peace, Standing Armies without the Consent of our legislatures...[and] has affected to render the Military independent of and superior to the Civil Power.”

By the time of the American constitutional debates, these concerns were addressed in part by the adoption of what is now known as the Second Amendment of the United States Constitution. Anti-Federalists and other Americans fearful of centralized power in the US government designed the amendment to guarantee that the states would be free to raise and train their own militias as a defense against federal power. These militias were also a means of keeping a defensive military force available to Americans, but which remained outside the direct control of the federal government.

In his book Eagle and Sword: The Federalists and the Creation of the Military Establishment in America, 1783–1802, Richard Kohn writes:

No principle of government was more widely understood or more completely accepted by the generation of Americans that established the United States than the danger of a standing army in peacetime. Because a standing army represented the ultimate in uncontrolled and controllable power, any nation that maintained permanent forces surely risked the overthrow of legitimate government and the introduction of tyranny and despotism.4

We can see this plainly in the speeches and writings of the Anti-Federalists like Patrick Henry. We see it in the more moderate attendees of the constitutional convention as well, such as George  Mason, who wrote “When once a standing army is established in any country, the people lose their liberty.”5

These ideas were further developed at the Virginia ratifying convention where Patrick Henry mocked the idea that liberties could be preserved by simply “assembling the people.” Without locally controlled military might, Henry noted, federal force could destroy the independence of the state governments. Similarly, George Mason concluded that the “militia...is our ultimate safety. We can have no security without it.”

As historian Leon Friedman concludes, “the people organized in the state militias were regarded as a counterforce against the threat that the regular army could be used as an instrument of oppression, and service in the militia was a right of the citizen that could not be transgressed by the federal government.”6

Even after the adoption of the new constitution, opposition to a powerful federal military continued. Congress opposed not only attempts to increase the size of the professional US army much beyond 1,000 men, but also opposed attempts to mandate any specific training in a “federally organized militia system.” In the end, opposition to federal control of military affairs meant training of militias was “left entirely to the states.”7

This is understandable given the long tradition of the “unorganized militia” in American history. This notion was recognized by policymakers even before ratification of the federal constitution, as noted by legal historian David Yassky:

As we have seen, in practice Founding-era militias were far from universal, but in the Founders’ conceptual framework the militia consisted of the mass of ordinary citizens, trained to arms and available to serve at the call of the state. As George Mason put it: “Who are the militia? They consist now of the whole people, except [for] a few public officers”....When the Second Congress sought to exercise its constitutional authority to “provide for organizing, arming and disciplining the Militia,” it directed “each and every free able-bodied white male citizen of the respective states [except for persons exempted under state law and certain other exempted classes]...who is...of the age of eighteen years, and under the age of forty-five years” to enroll in the militia of their states. Or as Patrick Henry declared at the Virginia ratifying convention: “The great object is, that every man be armed.”8

Far from eschewing the idea of military defense altogether, many states went to great lengths to ensure a large number of armed men were potentially available in case of invasion or general disorder.

For example, an 1894 collection of texts from state constitutions shows that no fewer than 22 state constitutions contained language along the lines of “the militia of the State shall consist of all able-bodied male residents of the State, between the ages of eighteen and forty-five years.”9 ,10

To ensure a ready availability of men used to handling firearms, these constitutional provisions are often accompanied by state guarantees of a right to keep and bear arms similar to the 1780 Massachusetts declaration of rights which states:

The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.11

Ideally, each state would have its own “unorganized militia” of residents who could “aid...the civil power” in case of civil unrest or invasion. American policymakers took these measures as part of an effort to ensure the federal government would not overwhelm state and local governments.

For a long time, the strategy worked. Throughout most of the nineteenth century, land-based military power continued to be heavily decentralized among the American member states and their militias.

The federal government directly controlled only a small force of professional federal officers and enlisted men. This meant that if the federal government wished to carry out any sizable military operations, it required the consent of the member states and their governments. Without this consent, it was impossible to “call forth” the militias for federal purposes.

Member State Vetoes on “Calling Forth the Militia”

While the Constitution of 1787 does not explicitly provide for a member-state veto on the federal use of militias, there were historically both statutory and customary barriers to presidents drawing upon local troops without the consent of member-state governors and legislatures.

In some cases, these member-state governments asserted control over their militia troops when federal orders conflicted with the agenda of the member states themselves. For example, during the War of 1812, the governor of Vermont, Martin Chittenden, attempted to recall Vermont troops that had been federalized by the US government and sent to New York. Chittenden declared “[It] has been ordered from our frontiers to the defence of a neighboring state...[and] placed under the command, and at the disposal of, an officer of the United States, out of the jurisdiction or control of the executive of this state.”12

During the same conflict, the state legislature of Connecticut issued a declaration passed by both houses: “it must not be forgotten, that the state of Connecticut is a FREE, SOVEREIGN, and INDEPENDENT state; that the United States are a confederacy of states; that we are a confederated and not a consolidated republic” (emphasis in original).13

At the time, the governor of Connecticut refused to comply with a requisition of troops from the United States Secretary of War. The governor condemned the federal attempt at nationalizing the militia and wrote: “By the principles of the proposed plan...our sons, our brothers and friends are made liable to be delivered, against their will and by force, to the marshals and recruiting officers of the United States, to be employed not for our defence, but for the conquest of Canada...”14 The state assembly concluded that the federal demands were “not only intolerably oppressive, but subversive of the rights and liberties of the state, and the freedom, sovereignty, and independence of the same, and inconsistent with the principles of the constitution of the United States.”15

According to William Chauncey Fowler, writing in his book Local Law in Massachusetts and Connecticut:

The Governor of Connecticut took the ground that, by the constitution of the United States, the entire control of the militia is given to the state, except in certain specified cases, namely: to execute the laws of the union, the suppress insurrection, and to repel invasions, and he contended that neither of these cases actually existed. He also took the ground that the militia could not be compelled to serve under any other than their own officers, with the exception of the president himself, when personally in the field.16

The state legislature concurred.

Kentucky Declares Neutrality

Another notable case of a state asserting control over its own military resources is Kentucky’s insistence on neutrality in the early days of the American Civil War. By 1860, demographic and economic changes in Kentucky had made it a semi-industrialized state with a declining reliance on the slave economy.17 Kentucky had close economic ties with both Northern and Southern states. Kentucky governor Beriah Magoffin opposed secession for Kentucky. Yet he also opposed military efforts to force the secessionist states back into the Union. That is, he was unwilling to directly support either the Union or the Confederacy, and asserted neutrality in the war. Magoffin announced “I will send not a man nor a dollar for the wicked purpose of subduing my sister Southern States,” and he refused a federal demand for four regiments from Kentucky to be added to the Union army.18

Magoffin was not alone in neutralist views, and former Kentucky Senator Archibald Dixon urged local citizens “to stand firm with her sister Border States in the centre of the Republic to calm the distracted sections.”19 By this, Dixon claimed, Kentucky “saves the Union and frowns down Secession.”20 Similarly, an assembly of voters in Louisville convened a public meeting on the matter and concluded it was the “duty of Kentucky...to maintain her present independent position, taking sides not with the [Lincoln] Administration, nor with the seceding states, but with the Union against them both.”21 Reflecting on the extent to which Kentucky had separated itself from both the North and the South during this period, Lowell Harrison has suggested that, at the time, “a bewildered observer from abroad might well have concluded that the United States had become three countries: the Union, the Confederacy, and Kentucky.”22

Predictably, Lincoln himself—who had concluded he must avoid military intervention to force Kentucky’s compliance—took a dim view of Kentucky’s neutrality, declaring the doctrine of “armed neutrality” to be “disunion completed,” while neutrality “recognizes no fidelity to the Constitution, no obligation to maintain the Union” and as “treason in effect.”23

Lincoln would eventually obtain political support from Kentucky, but not because he won the constitutional or legal argument. Eventually, Unionists took control of the state government and sided with the Union over the confederacy. This ended the debate.

Nevertheless, the Kentucky case merely continued the established practice of state governments vetoing federal use of state militias and military resources. In the case of Kentucky, the assertion that state governments could prevent federalization of local troops had worked as intended: Unionists—both in Washington and locally—were forced to win political support for the Northern side among Kentuckians before state resources could be used to prosecute the war.

Technically, Lincoln faced this problem in every northern state, although most state governments willingly sent state-organized troops to the war effort because they were ideologically aligned with the anti-secession movement. Had Lincoln failed to win political support from the individual states, however, he would have lacked the resources necessary to prosecute the war. At the time, the federal government simply lacked the resources necessary to carry on a large military operation of the type needed to invade the Southern states.

The Twentieth Century: State Militias Nationalized

By the early twentieth century, after a long period during which state governments exercised some level of control over the deployment of state militias, the federal government began to consolidate control over military resources in the states.

The first large step toward consolidation came in the form of the Militia Act of 1903 which for the first time began the use of the phrase “National Guard” in federal statutes. This new legislation also paved the way for the use of National Guard units to be used outside the territory of the United States, with a 1906 amendment specifically creating a provision for the use of militia units “either within or without the territory of the United States.”24

This provision was later contested on constitutional grounds, but the Congress responded with the National Defense Act of 1916 which made it even easier for the president to call up state troops for federal purposes.

Over time, the line between state militias and federal troops became increasingly blurred, and today, with the exception of the “state defense forces” state National Guard units today do not function independently of the United States government in any meaningful way.

The final nail in the coffin of local control came in 1987 courtesy of Mississippi Congressman Gillespie Montgomery. Montgomery introduced a provision in the 1987 National Defense Authorization Act which specifically states that “The consent of a Governor...may not be withheld (in whole or in part) with regard to active duty outside the United States, its territories, and its possessions, because of any objection to the location, purpose, type, or schedule of such active duty.”

In the nineteenth century, of course, when liberal factions like the Jacksonians were in power, this measure would have been considered to be blatantly unconstitutional, unwise, and immoral. But in 1990, the US Supreme Court, reflecting dominant opinion among American politicians, sided with the Congress and ruled against attempts by governors in California and Minnesota to stop deployments of state troops overseas.25

Thus, the Montgomery Amendment ended any remaining ability of states to veto federal use of member-state “militias.” By the mid-twentieth century, though, state militias had already been dwarfed by the national army and air force that could function totally independently of the American member states.

Why Military Decentralization Is Important

The Montgomery Amendment completed a long period during which a permanent “standing army” gradually replaced an earlier model of militia power decentralized among state governments. The eighteenth-century fear of centrally-controlled federal troops had given way to support for state troops that were state militias in name only, and subject primarily to federal control. The model of a decentralized army had originally been employed to limit federal military power, but physical and financial control of land-based military power is now firmly within the hands of the central government.

• 1Roberta A. Modugno, “England’s Levellers: The World’s First Libertarian Movement,” Mises Wire, March 27, 2014, https://mises.org/library/englands-levellers-worlds-first-libertarian-movement-0.
• 2Quoted in Ryan McMaken, “The Origins of ‘Militia’ in the Second Amendment—It’s Not About Slavery, Mises Wire, April 2, 2018, https://mises.org/wire/origins-militia-second-amendment-its-not-about-slavery.
• 3Marcus Cunliffe, Soldiers and Civilians: The Martial Spirit in America, 1775–1865 (Boston: Little, Brown, and Company, 1968), p. 32.
• 4Quoted in Anthony A. Peacock, Vindicating the Commercial Republic: The Federalist on Union, Enterprise, and War (Lanham, Maryland: Lexington Books, 2018), p. 163.
• 5George Mason, “Debate in Virginia Ratifying Convention,” June 14, 1788, https://press-pubs.uchicago.edu/founders/print_documents/a1_8_12s27.html.
• 66Leon Friedman, “Conscription and the Constitution: The Original Understanding,” 67 Michigan Law Review 1493 (1969): 1536.
• 7Ibid., 1538.
• 8David Yassky, “The Second Amendment: Structure, History, and Constitutional Change,” 99 Michigan Law Review 588 (2000): 624.
• 9The Convention Manuel of the Sixth New York State Constitutional Convention, 1894 (Albany, N.Y.: The Argus Company, 1894).
• 10Texts declaring all able-bodied adults as members of the militia were, in the late nineteenth century, found in Alabama, Arkansas, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Mississippi, Missouri, Montana, North Carolina, Ohio, Oregon, Pennsylvania, South Dakota, Virginia, Washington, and Wyoming.
• 11Massachusetts Declaration of Rights, Article 17 (1780), http://blog.mass.gov/masslawlib/legal-history/massachusetts-declaration-of-rights-article- 17/.
• 12Jeff Taylor, Politics on a Human Scale: The American Tradition of Decentralism (Lanham, Maryland: Lexington Books, 2013), p. 60.
• 13Ibid.
• 14William Chauncey Fowler, Local Law in Massachusetts and Connecticut, Historically Considered (Albany, N.Y.: Joel Munsell, 1872), p. 93.
• 15Ibid.
• 16Ibid.
• 17Kent Masterson Brown, The Civil War in Kentucky: Battle for the Bluegrass State (Mason City, Iowa: Savas Publishing, 2000), p. 5.
• 18Clint Johnson, “A Vast and Fiendish Plot”: The Confederate Attack on New York City (New York: Kensington Publishing, 2010), p. 90.
• 19James A. Rawley, A Lincoln Dialogue, ed. William G. Thomas (Lincoln: University of Nebraska Press, 2014), p. 139.
• 20Quoted in Frank Moore, ed., Rebellion Record: a Diary of American Events: Documents and Narratives, vol. 1, http://www.perseus.tufts.edu/hopper/text.jsp?doc= Perseus%3Atext%3A2001.05.0135%3Apage%3D76.
• 21Jerome A. Watrous, ed., The Union Army, A History of Military Affairs in the Loyal States 1861–65 (Madison, Wis.: Federal Publishing Company, 1908), p. 286.
• 22Lowell Harrison, The Civil War in Kentucky (Lexington: University Press of Kentucky, 1975), p. 9.
• 23Abraham Lincoln, Message to Congress in Special Session, July 4, 1861, https://www.whatsoproudlywehail.org/curriculum/the-american-calendar/ message-to-congress-in-special-session.
• 24University of Illinois Studies on the Social Sciences: War Powers of the Executive in the United States 9, nos. 1–2, March–June 1920 (Urbana: University of Illinois Press), p. 133.
• 25David Evans, “Supreme Court Confirms U.S. Control Over Guard, Chicago Tribune, June 12, 1990, https://www.chicagotribune.com/news/ct-xpm-1990-06-12-9002170920-story.html.