Federalism and the Military Power of the United States

Abstract

In contemporary debates about military power, the unquestioned assumption is that the federal government is supreme and the states are essentially irrelevant. This paper challenges that assumption. It argues that the Framers carefully divided the military power between the federal and state governments to provide a reciprocal system of checks on both federal and state-based oppression. These checks have been compromised by the acceptance of conscription into the national army, the creation of the U.S. Army Reserve, and dual enlistment of National Guard officers and soldiers — all of which have enhanced the federal military power beyond its original constitutional limits. Finally, the paper describes how the original framework of military federalism nonetheless remains relevant for contemporary debates, including over the Constitution’s division of war powers between the President and Congress, where a greater congressional role may be a legitimate compensating adjustment for the abolition of the originally contemplated vertical checks; the constitutional limits of military criminal jurisdiction; and occasional proposals to reinstate the draft.