- - Tuesday, November 17, 2020

Editor’s note: This is part of the series “To the Republic: Rediscovering the Constitution.” Click HERE to read the series.

The Constitution does not expressly provide for a standing army, in part because of the concern of the Framers that a standing army posed a threat to the civil order, and in part because some thought that a standing army would present too great a temptation to use indiscriminately. At the same time, Article I, Section 8 specifically grants Congress the power to “raise and support armies” while also restricting appropriations to two years.

By funding the army via relatively short-term congressional appropriations, and in making the president the commander-in-chief, the Framers of the Constitution hoped to avoid a standing army by dividing the powers required of directing it and funding it.

Is a standing army a good idea? Is it necessary? Is it wise? Thirty-six countries do not have armies. Unsurprisingly, they are not major powers and include the Vatican, Aruba, Costa Rica and Iceland.

The Founders knew from experience that the British monarch could both declare and fund war without reference; consequently, they ensured a separation of these powers. James Madison noted that the very armies that were intended to protect European peoples often enslaved them instead, and indeed, the British monarch used the military to deprive his subjects of their rights. Madison was also concerned — as are contemporary Americans — about the cost of standing armies. To avoid both of these pathologies, the Constitution requires legislative consent to have a standing army.

During the Revolutionary War, little training was required beyond how to fire a musket. Armies or militias could be raised quickly. But over the years, the complexity of warfare and weapons dramatically increased. The technology and tactics of war required more training. Wars grew in scope both geographically and in the number of soldiers required to fight them.

Yet in the years between major wars, in keeping with its residual ambivalence about a standing military, America has always reduced the army to a bare minimum. Consequently, the U.S. has always found itself ill-prepared when war clouds next darkened the horizon.

After being involved in some armed conflict for nearly all but about 20 years of our nation’s existence, we have, apparently, decided to have a professional military. This is critical. We need a standing army that is ready to fight today.

We no longer have the luxury of time to build an army from scratch. We cannot maintain our troops, tanks, nuclear weapons, missiles, aircraft, ships and submarines, many of which involve a high degree of complexity and years of training, without the professional military that we now have.

While draftees can always provide immediate troops for war, conscript training has always been minimal, and many were and are resistant to serving. Some consider the draft equal to involuntary servitude and dramatically at odds with a free country.

Perhaps counterintuitively, the strongest objections against the draft come from military professionals. It is far more challenging to train draftees against their will, for a relatively short time, than to deal with career soldiers who train constantly and serve because it is their chosen profession.

Some have argued that the reason we have been involved in conflicts so often is that we have a standing and professional military. When presidents look to their toolbox to solve problems, the military often stands out as the one organization that can deploy quickly and make a difference. Perhaps presidents have grown too fond of using the military when diplomacy might have worked. This is certainly one of the dangers that the Framers anticipated if we maintained a standing army.

Perhaps the Framers believed that by giving Congress the appropriations power, it could rein in unbridled use of the military through the appropriations process. Of course, the Framers also envisioned Congress as the most powerful branch of government, and that is not certainly not the case, at least in our present hour.

Those who resist a standing army should note that the military’s size is determined in large measure by our international commitments. The U.S. has taken on vast international security responsibilities that most nations do not have; it is appropriate to have a military capable of meeting those commitments.

Alternatively, those who wish to shrink the military should focus first on shrinking our commitments.

As a mature republic, the U.S. has sufficient safeguards in place to address any concerns that the Framers may have had about a standing army, except perhaps their worries about debt. But there are many more causes of our national debt that are far less relevant to the Constitution than the “common defense.”

Times have changed since the founding of our republic, and the military has appropriately changed with it.

⦁ David S. Jonas is a Partner at FH+H Law Firm in Tysons, Virginia. He is a retired Marine Corps officer and has served as General Counsel in two federal agencies. He is an adjunct Professor at Georgetown and George Washington University law schools.

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