The Constitution and the Standing Army

The U.S. Constitution can reasonably be seen as a massive tax and mercantilist trade-promotion program. However, there’s a third leg to this stool. It was a national-security program as well – almost a proto-PATRIOT Act. Indeed, these three elements formed an integrated project: it gave the new central government independent power to raise revenue by taxing individuals directly and to establish an army and navy in order to advance, by force if necessary, American trade. This, I submit, was not exactly a libertarian project. It let a terrifying genie out of the bottle ostensibly in order to contain it. Or, as James Madison put it, “You must first enable the government to control the governed; and in the next place oblige it to control itself.”

While the nationalists (that is, the self-identified but misnamed Federalists) saw military power as essential to the development of American commerce, the ability to raise an army and navy was intended to accomplish more than that, namely, continental hegemony and national security in a hostile world. As Madison, chief architect of the political system embodied in the Constitution, told the Virginia ratifying convention, American was surrounded by countries “whose interest is incompatible with an extension of our power and who are jealous of our resources to become powerful and wealthy. [They] must naturally be inclined to exert every means to prevent our becoming formidable.” Thus the nationalists sought a permanent military establishment – albeit initially small – powerful enough that no nation would, as Donald Trump would say, “mess with us.”

Whom did the Federalists fear? “The hostile nations the Federalists were talking about [Spain and England],” Max M. Edling wrote in A Revolution in Favor of Government: Origins of the US Constitution and the Making of the American State, “had dominions to the north and south of the union, while in the west they fueled the animosity of the Indian nations.”

It’s odd, then, that so many libertarians think an obsession with national security dates back only to the end of World War II and Harry Truman’s National Security Act of 1947. In fact it goes back to the very beginning of the republic, when Americans who sought to expand the power of the central state warned that because America was exceptional, it faced constant danger from the old powers and the Indian nations (whose lands the Americans coveted). Security, the nationalists explained, requires consolidation (rather than loose the “league of friendship” under the Articles of Confederation) and a ready peacetime military. Yes, a standing army was potentially dangerous, they said, and so need not be large; but America, as a unified extended republic secure between two oceans, did not have to fear a permanent military establishment.

Some libertarians believe that since Americans opposed a standing army, as the vocal Anti-Federalists did, the Constitution forbade it. That is clearly not the case. No prohibition is to be found, a fact punctuated by the Third Amendment, which prohibits the quartering of troops in people’s home without consent in peacetime. Obviously, that could be an issue only with a peacetime standing army. (Thanks to Gary Chartier for pointing this out.)

But that’s the least to be said. Congress was empowered virtually without qualification to raise an army and navy, the only restriction being that the military budget can be for no more than two years at a time: “Congress shall have the power to … To raise and support Armies [and] To provide and maintain a Navy.” Moreover, control of the state militias was taken from the states and nationalized. (See Article I, Section 8. In 1783 the Confederation Congress created a committee, chaired by Alexander Hamilton, to plan for a peacetime army and navy. Committee member Madison was unconvinced that Congress had the power to carry out any such a plan.)

These powers in the proposed Constitution outraged the Anti-Federalists, who opposed centralized government in a distant capital. They pointed out that this shift in responsibility to the national government would reduce the states to mere administrative districts with nothing to do but, as Patrick Henry put it, “take care of the poor – repair and make highways – erect bridges, and so on, and so on.” They also warned that a professional military would suppress the liberty of Americans, who would be unable to resist because the militias would be gutted through federal neglect. Oddly, the Federalists argued that the powers would preclude federal coercion of the states because the new central government would “act directly upon citizens as individuals,” as Arthur A. Ekirch Jr. explained in The Civilian and the Military: A History of the American Antimilitarist Tradition (1972). Small comfort for those citizens, of course.

The Federalists understood that most Americans were suspicious a professional military, so the Federalists gave assurances that the force would be small and not stationed close to the people. But the Anti-Federalists were not pacified. “My great objection to this Government is, that it does not leave us the means of defending our rights; or, of waging war against tyrants,” Henry said. “Have we the means of resisting disciplined armies, when our only defense, the militia, is put into the hands of Congress?” Edling commented that “the argument that the Constitution would allow the national government to create a standing army in order to expropriate the people’s property [through arbitrary taxation] shows that the Antifederalist objections to the Constitution were grounded in traditional Anglo-American individuals rights.” (Some have held, on weak evidence, that the Anti-Federalists were not proto-libertarians but rather radical democrats who wanted no limits placed on the state legislatures. Whether the leading Anti-Federalists and the rank and file differed ideologically would be difficult to determine.)

Another concern of the Anti-Federalists was that the Constitution could authorize conscription. Anti-Federalist writer “Brutus” warned of a coming “Prussian militia”: If “the general legislature deem it for the general welfare to raise a body of troops, and they cannot be procured by voluntary enlistments, it seems evident, that it will be proper and necessary to effect it, that men be impressed from the militia to make up the deficiency.” (The Anti-Federalists saw the necessary-and-proper clause as a blank check for the central government.)

And that wasn’t all that worried the Anti-Federalists. As Edling explained: “By law the American militia consisted of all men between the age of sixteen and sixty. Congress’s unlimited power over the militia therefore gave it power over the vast majority of adult men, which meant that the entire political nation was within reach of the government’s command.” Anti-Federalist Luther Martin (quoted in Edling) pointed out that members of the nationalized militia “from the lowest to the greatest [could] be subjected to military law, and tied up and whipped at the halbert like the meanest of slaves.”

The Anti-Federalists, perhaps seeing the writing on the wall, were willing to concede power to the national government to raise an army in wartime – but not in peacetime. However, the Federalists, as one of them, James Wilson, put it, wanted “the appearance of strength in a season of the most profound tranquility.” The potential for abuse was too great for the Anti-Federalists to accept.

The Anti-Federalists were happy that the military would at least be under civilian control and that although the president was commander-in-chief, the Congress controlled the purse and held power to declare war. (We know what became of that power.) However, with the rise of the Society of the Cincinnati and with retired Gen. George Washington as the likely first president, how comforted should they have been about all this? (“Almost at once,” Ekirch wrote, “the Society was criticized as an attempt to establish the former Revolutionary officers as a hereditary aristocracy, and the volume of protest soon reached impressive proportions.”)

The Anti-Federalist case against unlimited central control of the military obviously did not prevent ratification of the Constitution, but it did yield proposed amendments to limit Congress’s power, such as requiring a two-third majority of voting House members to approve the raising or keeping of troops in peacetime. That proposal was ignored, however, when Madison assembled what would become the Bill of Rights. Earlier, Luther Martin and Elbridge Gerry’s amendment at the federal Convention to cap the number of troops failed, prompting Gerry, Edmund Randolph (a Federalist), and George Mason to refuse to sign the Constitution.

The Federalist Papers, which were newspaper columns written to sell the Constitution to the public, were stunningly frank in their defense of the vast military powers enumerated in the Constitution. In Federalist 41 Madison wrote:

“Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the American Union. The powers requisite for attaining it must be effectually confided to the federal councils….

“Is the power of declaring war necessary? No man will answer this question in the negative. It would be superfluous, therefore, to enter into a proof of the affirmative. The existing Confederation establishes this power in the most ample form.

“Is the power of raising armies and equipping fleets necessary? This is involved in the foregoing power. It is involved in the power of self-defense.

“But was it necessary to give an INDEFINITE POWER of raising TROOPS, as well as providing fleets; and of maintaining both in PEACE, as well as in WAR?

“…The answer indeed seems to be so obvious and conclusive as scarcely to justify such a discussion in any place. With what color of propriety could the force necessary for defense be limited by those who cannot limit the force of offense?…

“How could a readiness for war in time of peace be safely prohibited, unless we could prohibit, in like manner, the preparations and establishments of every hostile nation?”

Answer these questions as you may, but don’t think for a minute that the Constitution did or was intended to limit the national government’s power to raise and keep a peacetime standing army, or what Madison and his colleagues euphemistically called a “peace establishment.” At the Federal Convention Madison had acknowledged that “according to the views of every member, the Genl. Govt will have powers far beyond those exercised by the British Parliament.” (Quoted in Edling.)

As indicated, Madison tried to allay fears of a standing army by arguing that a unified country would preclude the dangers experienced in Europe.

“The Union itself, which it [the Constitution] cements and secures, destroys every pretext for a military establishment which could be dangerous,” Madison wrote. “America united, with a handful of troops, or without a single soldier, exhibits a more forbidding posture to foreign ambition than America disunited, with a hundred thousand veterans ready for combat…. A dangerous establishment can never be necessary or plausible, so long as they continue a united people.” (But note: he did not favor only a handful of troops or none at all.)

Indeed, he wrote, investigation into the matter “must terminate in a thorough and universal conviction, not only that the constitution has provided the most effectual guards against danger from that quarter [i.e., standing armies], but that nothing short of a Constitution fully adequate to the national defense and the preservation of the Union, can save America from as many standing armies as it may be split into States or Confederacies, and from such a progressive augmentation, of these establishments in each, as will render them as burdensome to the properties and ominous to the liberties of the people, as any establishment that can become necessary, under a united and efficient government, must be tolerable to the former and safe to the latter.”

In other words, it’s not the central government’s peacetime standing army that is dangerous. It’s the standing armies of small sovereign states that were to be feared. Of course the states had citizens militias, not standing armies.

In Federalist 23 Alexander Hamilton declared that “the principal purposes to be answered by union [and hence the powers to raise taxes and military forces] are these – the common defense of the members; the preservation of the public peace as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.

“The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation [italics added], BECAUSE IT IS IMPOSSIBLE TO FORESEE OR DEFINE THE EXTENT AND VARIETY OF NATIONAL EXIGENCIES, OR THE CORRESPONDENT EXTENT AND VARIETY OF THE MEANS WHICH MAY BE NECESSARY TO SATISFY THEM.”

What was that about powers “few and defined”?

In case anyone missed it the first time, Hamilton repeats:

“Whether there ought to be a federal government intrusted with the care of the common defense, is a question in the first instance, open for discussion; but the moment it is decided in the affirmative, it will follow, that that government ought to be clothed with all the powers requisite to complete execution of its trust. And unless it can be shown that the circumstances which may affect the public safety are reducible within certain determinate limits; unless the contrary of this position can be fairly and rationally disputed, it must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defense and protection of the community, in any matter essential to its efficacy that is, in any matter essential to the FORMATION, DIRECTION, or SUPPORT of the NATIONAL FORCES.”

This is reminiscent of young William F. Buckley’s declaration that “we have got to accept Big Government for the duration [of the Cold War] – for neither an offensive nor a defensive war can be waged … except through the instrumentality of a totalitarian bureaucracy within our shores.”

In Federalist 25 Hamilton wrote that defense cannot remain the province of the states because “the territories of Britain, Spain, and of the Indian nations in our neighborhood do not border on particular States, but encircle the Union from Maine to Georgia. The danger, though in different degrees, is therefore common.”

In other words, the central state was first and foremost to be a national-security state, or as it was called then, “a fiscal-military state,” European-like but superficially tailored to Americans’ distrust of centralized power and elites. Like Madison, Hamilton tried to turn this distrust on its head.

“As far as an army may be considered as a dangerous weapon of power,” Hamilton wrote, “it had better be in those hands of which the people are most likely to be jealous than in those of which they are least likely to be jealous. For it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.” Or: better to give the power to distant strangers than to nearby acquaintances.

The Anti-Federalist argument was that the nearby government of a small republic was one the people could more readily watch. The Federalists’ government, they said, would be far away and dominated by the elite, which would have an advantage over working- and middle-class people in gaining seats from the proposed large congressional districts in which one man would represent up to 30,000 people. The Anti-Federalists also invoked a version of the dispersed costs/concentrated benefits argument in claiming that the unorganized masses, unlike the well-organized special interests, would find it impractical to keep at eye on the new government.

Admittedly, the Anti-Federalists’ worst fears did not come to pass, but that happy outcome had much to do with the resistance mounted by their successors, the congressional Republicans, to the Federalists’ proposed military buildup. (See Ekirch. Later, the Republicans became militarists.) While the professional army was occasionally used domestically by both Federalists and Republicans (legislation permitting this was passed in the Jefferson administration), federal laws by and large did not require such heavy-handed enforcement. (A prohibition on such use of the army was formalized in the Posse Comitatus Act of 1878.) The military establishment was of course essential in building the bloody and costly American empire, starting with the conquest of much of North America.

Sheldon Richman, author of the forthcoming book The Constitution Revisited: A Libertarian Look at America’s Counter-Revolution, keeps the blog Free Association and is a senior fellow and chair of the trustees of the Center for a Stateless Society, and a contributing editor at