Defend the Guard: A Constitutional Check on Unrestricted War Powers
Presidential administrations come and go but the war machine churns relentlessly on. “Defend the Guard” legislation can throw a monkey wrench in its cogs.
Defend the Guard is a state-level bill that would stop the deployment of a state’s National Guard units unless Congress issues a declaration of war or calls the Guard into service for one of three constitutionally authorized purposes. In all other situations, the state’s National Guard personnel would remain where they belong – at home supporting and protecting their states.
THE STRATEGY
The strategy is based on James Madison’s blueprint in Federalist #46 – a refusal to cooperate with officers of the union. The “Father of the Constitution” wrote that if several states worked together, it would create “obstructions which the federal government would hardly be willing to encounter.”
During the War of 1812, Daniel Webster similarly urged states to adopt this strategy, asserting that resisting federal overreach was “one of the reasons state governments even exist.”
Webster articulated this view in an 1814 speech on the floor of Congress where he urged actions similar to the Defend the Guard Act.
“The operation of measures thus unconstitutional and illegal ought to be prevented by a resort to other measures which are both constitutional and legal. It will be the solemn duty of the State governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power. These are among the objects for which the State governments exist.”
Several northern states implemented this strategy during the War of 1812 by refusing to release their militias for federal service.
Under the leadership of Theophilus Parsons – Chief Justice of the Supreme Judicial Court of Massachusetts – the Court affirmed the strategy, holding that a governor is constitutionally empowered to withhold state militia from federal control unless one of the three specific criteria outlined in Article I, Section 8 is met.
Moreover, Parsons emphasized that determining whether these conditions existed was the governor’s responsibility, not that of the president.
“No power is given, either to the President or to Congress, to determine that either of the said exigencies do in fact exist. As this power is not delegated to the United States by the Federal Constitution, nor prohibited by it to the states, it is reserved to the states, respectively; and from the nature of the power, it must be exercised by those with whom the states have respectively entrusted the chief command of the militia.”
Lending more weight to his argument, Parsons was far from an ordinary state judge. Widely recognized as a leading legal scholar of his era, he was also a highly influential Federalist supporter of the Constitution during the 1788 ratification debates.
MILITIA CLAUSES
Article I, Section 8, Clauses 15 and 16 make up the “militia clauses” of the Constitution. Clause 16 authorizes Congress to “provide for organizing, arming, and disciplining the Militia.”
Historically the militia included all able-bodied men, as George Mason explained during the Virginia ratifying convention.
“I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor…” [Emphasis added]
The Dick Act of 1903 confirmed Mason’s fears. Congress restructured the militia, transforming a portion of it into today’s National Guard. This change limited who could be called into federal service, excluding much of the general population. Thus, today’s National Guard is governed by the “militia clauses” of the Constitution, and this view is confirmed by the National Guard itself.
Clause 15 delegates to Congress the power to provide for “calling forth the militia” in three situations only:
1) to execute the laws of the union
2) to suppress insurrections
3) to repel invasions.
During state ratifying conventions, proponents of the Constitution, including James Madison and Edmund Randolph, repeatedly assured the people that this power to call forth the militia into federal service would be limited to those very specific situations, and not for general purposes.
For instance, during the Virginia ratifying convention, Madison asserted, “Congress ought to have the power to establish a uniform discipline throughout the states, and to provide for the execution of the laws, suppress insurrections, and repel invasions: these are the only cases wherein they can interfere with the militia.” [Emphasis added]
FEDS USE THE GUARD FOR UNCONSTITUTIONAL WARS
It would be extremely difficult for the U.S. to wage its unconstitutional wars without the personnel supplied by the National Guard.
Guard troops have been pivotal in modern overseas conflicts. Since 9/11 National Guard members have supported more than 1.1 million overseas deployments. Military.com reports that “Guard and Reserve units made up about 45 percent of the total force sent to Iraq and Afghanistan, and received about 18.4 percent of the casualties.”
In Iraq alone, over 250,000 Guardsmen were deployed in support of operations. In Afghanistan, the National Guard deployed 222,485 Citizen-Soldiers, accounting for a total of 259,467 deployments. These Guard units not only served in support roles but they were also involved in direct combat.
Moreover, Guard units are engaged in a range of operations beyond major conflicts. For instance, they have actively contributed to the Combined Joint Task Force – Horn of Africa (CJTF-HOA) in Djibouti. They’ve filled a variety of roles including providing security, crisis response, and fostering “partnerships” within the region.
The Guard’s extensive involvement in conflicts of all sizes underscores the evolving role of the militia from a strategic reserve to an integral part of active military operations.
WAR POWERS
The founding generation regarded strict limits on war powers as essential. James Madison warned that “no nation could preserve its freedom in the midst of continual warfare.”
With this in mind, the framers of the Constitution carefully separated the power to initiate war and the power to execute it, ensuring the president wouldn’t have unilateral power to drag the United States into war. Instead, this power was exclusively delegated to Congress, which represents both the people and the states.
James Madison further clarified this in a letter to Thomas Jefferson.
“The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legislature.”
Article I, Section 8, Clause 11 of the Constitution explicitly delegates the power to “declare war” to Congress.
At the time the Constitution was ratified, the power to “declare” war was widely understood to mean changing the state of things from peace to war.
Today, many contend that the Constitution’s reference to “war” pertains solely to full-scale conflicts between nations, arguing that limited military operations do not require congressional approval. However, constitutional scholar Rob Natelson noted that the Founders made no such distinction.
“Founding-Era dictionaries and other sources, both legal and lay, tell us that when the Constitution was approved, ‘war’ consisted of any hostilities initiated by a sovereign over opposition. A very typical dictionary definition was, ‘the exercise of violence under sovereign command against such as oppose.’” (Barlow, 1772-73). [Emphasis added]
When placed within the definition, all offensive U.S. military actions qualify as “violence under sovereign command.” Furthermore, military operations, whether for strategic, political, or humanitarian purposes, are always “over opposition.”
It’s also important to note a country can change the state of things from peace to war with a formal declaration, but it can also happen with the execution of military actions, however limited.
Simply put, any offensive measure requires congressional authorization, not just full-scale wars.
This is exactly how the Constitution was understood – and followed – by the first four presidents – Washington, Adams, Jefferson, and Madison.
For instance, despite the prevailing narrative to the contrary, Jefferson deferred to Congress throughout the conflict of the Barbary Pirates. Narrow congressional authorizations explicitly described specific actions the president could take and guided his decision-making, giving him very little discretion.
They didn’t authorize Jefferson to take whatever steps he deemed necessary or to decide when and if he wanted to go to war. Congress engaged in the decision-making and Jefferson executed its will.
BACK TO THE CONSTITUTION
Today, presidents operate without such restraint, as Congress has effectively abdicated its constitutional responsibility over war powers.
At best, the legislative branch merely re-delegates its power to the executive branch by passing open-ended authorizations to use military force, effectively handing the president complete discretion to deploy troops as desired.
This scenario was precisely what the founding generation sought to avoid. James Madison addressed this concern in a letter to Thomas Jefferson.
“The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legislature.”
For too long, Congress has abdicated its constitutional duty, allowing presidents to wield unilateral war powers with virtually no oversight. The founders understood that war decisions must rest with the people’s representatives, not the whims of a single executive. Yet, through decades of political inertia, this crucial safeguard has been eroded.
Passage of the Defend the Guard Act would take an important step toward restoring the Constitution. By refusing to send National Guard troops into unauthorized conflicts, states could begin to back Congress into a corner and eventually force it to take responsibility for war and peace as originally intended.
The Defend the Guard Act not only strengthens the principles of federalism but would also help ensure that those who bear the costs of war – soldiers and their families – are not sent into battle without proper constitutional authorization.
If America is to remain a free republic, it must reject the incessant mission creep of executive war-making, and return to the system of checks and balances that the framers so carefully designed.
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