The Caldwell tribune. [volume] (Caldwell, Idaho Territory [Idaho]) 1883-1928, 1916-07-07
IS THE FEDERAL
MILITIA LAW VALID?

Thus far no one has arisen to ques-
ton the constitutionality of the law
under which President Wilson has
drafted the National Guard for SER
vice with the regular army in Mex
leo. Last winter, when the subject
of federalizing the militia was be-
ing hotly debated in and out of con-
gress it was seriously doubted whe-
ther it would be possible to draft the
organized militia into the service OF
the Unites States. The point was
made again and again upon high au-
thoritv that there were insuperable
legal and constitutional grounds which
would defeat successful liberalization.
Now that the thing has been done,
however, and that thousands of mil
itiamen have been mustered into the
Federal service. the technical points
of the controversy of last winter have
little more than an academic interest.
Nevertheless, some of the objections
then urged still exist. In the words OF
Secretary of War Garrison, the funda-
mental difficulty SIS not the inability
of the Federal government to utilize
those troops for all purposes in time
of war. 1t arises from the inability of
the Federal government, under the
constitution to have that unity OF au
thority, responsibility and control in
time of peace which it must have as
a basis of any military system of any
value whatever"
The then secretary of war ex-
banded the idea by pointing out that
while the Federal government could
legally make appropriations for the
National Guard conditional on the
National Guards agreeing to rules
and regulations laid down by the
Federal government, such acceptance
of such conditions by the National
Guard does not and cannot alter the
legal situation existing under the
Constitution
A Lawyers View of It
Mr.. Garrison's view, that of a train
ed lawyer, is worth reviving at this
time, for in his statement to the Hay
Committee he expressed grave doubt
as to the permanent benefits which
might be expected to come from the
kind of liberalization that the militia
is now receiving. at may result"
reclared Mr. Garrison, "as long as it
is acquiesced by all parties, in much
greater participation by the Federal
government in the control, command,
offering and training of these troops
than the constitution warrants. but it
would not stand the slightest legal test
or strain, and there is, in my view, not
the slightest doubt that no enforce
able obligation can arise out of any
such legislation-that is to say, any
| legislation which seeks greater right
Inr Al h,
constitution warrants. 1t is absolutely
automatic that jurisdiction cannot be
| acquired by consent and cannot, Of
course, be any more successfully &C
| CURED by purchase. Wherever q
constitution fixes the limits of juris-
diction, there they must stand until
the constitution is changed"
A Confederate Precedent
A similar view is ON record coming
from Brigadier General Crowder, the
JUDGE Advocate General of the Army
Gen eral Crowder, while admitting that
in case of an emergency it will be
possible to draft the militia into SER
vice of the United States-as has al
ready been done by congress-inti-
mated that such action might very
well develop questions which would
find their way ultimately into the
courts. In support of this view he
cited an opinion of the Supreme Court
of one of the Confederate states which
reserved judgment on the question
of whether an instrumentality of a
state governm emit, like the organized
militia, could be drafted by the Fed
eral government. 81 do not think that
anybody is in a position to say that
the exercise of that power would not
be judiciously questioned" conclud-
ed General Crowder.
Constitutional Amendment Necessary
In this connection it is interesting
to recall that the legislative commit
tee of the National Guard Associa-
ton at its last meeting. held before
the passage of the Hay bill, urged
the adoption of an amendment 10
the Federal constitution which would
make the organized militia effective
for service both within and without the
| United States exactly upon the same
terms and conditions as the regular
army This recommended amendment
aimed to give congress the right to
prescribe the discipline, equipment and
training of the National Guards, re-
serving to the several states the con-
troll of their forces in time OF peace,
the appointment of officers in &C
cord lnce. however, with a uniform
system to be prescribed by congress,
! and the Federal organization, loca-
| ton and arrangement of National
Guard units. The committee urged the
Federal pay provisions of the Hay
Bill pending the ratification of such
an amendment to the Constitution,
and declared that the taking of such
steps would provide IAN immediate
dependable and trained force of not
less than 100000 men as the neucleus
from which to expand as necessity
may arise"
Lessons From Present Mobilization
The division of militia affairs OF
the War Department is scrutinizing
carefully every phase of the militia
mobilization, and when the task is
completed, General Mills will have
on hand tremendously valuable data
bearing on the points raised last
winter and still to be determined In
any study of the future military policy
of the United States. War Department
! 81. r