The Army Clause, Part 1: Overview and Historical Background

The Army Clause, Part 1: Overview and Historical Background

Legal Sidebari

The Army Clause, Part 1: Overview and
Historical Background
July 22, 2024
This Legal Sidebar is the first in a five-part series that discusses the U.S. Constitution’s Army Clause,
found in Article I, Section 8, clause 12, which authorizes the federal government to raise and support
armies while also allowing for congressional control through the appropriations process. Because the
Army Clause provides Congress with an essential element of the United States’ suite of war
powers, understanding the Army Clause may assist Congress in its legislative activities.
This Sidebar post provides an overview of and historical background on the Army Clause. Other Sidebars
in this series discuss the clause’s drafting and ratification; relationship with appropriations, conscription,
and war materials; role in individual rights cases; and connection with principles of federalism. Additional
information on this and related topics is available at the Constitution Annotated.
Overview
The Army Clause provides that Congress “shall have Power . . . To raise and support Armies, but no
Appropriation of Money to that Use shall be for a longer Term than two Years.” The clause’s structure
reflects the efforts by the Constitution’s Framers to balance two competing concerns in the Founding era:
a widespread mistrust of peacetime standing armies and the new nation’s desire to ensure security through
military protection. The Framers sought to address both issues by authorizing Congress to raise and
maintain armies, while requiring renewal of appropriations for that purpose every two years to ensure
democratically elected representatives continued to support the army. Although congressional power to
raise and support armies has sometimes come into tension with other constitutional rights and principles,
the Supreme Court has described this power as “broad and sweeping,” and has rejected some claimed
limits on Congress’s authority under the Army Clause.
Historical Background
The Constitution’s Framers inherited a long-standing tradition of opposition to standing armies that was
rooted in both political philosophy and historical experience. Many in the Framers’ generation believed
standing armies during peacetime were incompatible with republican values, and they viewed
professional armies to be too far removed from the general populace to be trusted to defend it.
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Great Britain traditionally allowed its monarchs both to initiate wars and to raise and support armies;
however, in the 17th century, Britain experienced three-quarters of a century of struggle over whether its
army would be controlled by the Crown or the Parliament. In the 1628 Petition of Right, the English
Parliament called on King Charles I to end the practice of dispersing “great companies of soldiers and
mariners” throughout England. Charles I was eventually ousted from the throne, tried, and convicted of
treason following the English Civil War, but the Crown again maintained a standing army after the
monarchy was restored. In the Glorious Revolution of 1689, William and Mary agreed to the English Bill
of Rights of 1689, which prohibited the Crown from raising or keeping a standing army in peacetime
without Parliament’s consent.
The British experience contributed to a commonly accepted view in colonial America that peacetime
standing armies enabled abuse of power and were a threat to civil liberties and individual freedom.
Despite this popular sentiment, the British maintained a standing army in the American colonies after the
end of the Seven Years’ War in 1763. When British troops shot into a crowd of civilians during the 1770
Boston Massacre, killing several men and injuring others, American hostility to the permanent military
presence accelerated. By 1776, the complaint that King George III “kept among us, in times of peace,
Standing Armies without the Consent of our legislatures” was included in the Declaration of
Independence’s list of grievances justifying armed rebellion. As the former colonies transitioned to
independence, several adopted state constitutions that limited standing armies and described them as
dangerous to liberty.
Against this backdrop, the Articles of Confederation, which preceded the Constitution, primarily focused
on the militia rather than a professional army as the first line of national defense. The Supreme Court has
described the militia as the “body of armed citizens trained to military duty, who may be called out in
certain cases, but may not be kept on service like standing armies, in time of peace . . . .” The Articles of
Confederation required each state to maintain a well-regulated, disciplined, and armed militia and to have
weaponry, ammunition, and equipment ready for its use. Despite the militia’s prominence, its limitations
as a fighting force were evident as early as the Revolutionary War. In 1776, then-General George
Washington and other military leaders complained that militia forces were unreliable and lacked
necessary training and discipline. Washington later warned in a letter from the battlefield that unless the
United States was vested with greater powers to raise armies, “our cause is lost.”
Although the Articles of Confederation focused primarily on the militia, they also gave the national
government some ability to build a professional army by granting the national government the power to
“agree upon the number of land forces” to be put in the service of the United States and “to make
requisitions from each state” to supply them. Like the militia, however, this system had shortcomings.
The national congress organized under the Articles of Confederation could not raise armies directly; it
was dependent upon states to supply, arm, and equip them. Requisitioning troops from the states suffered
from delays, short enlistments, troop fluctuation, and uneven recruitment, especially in states that were
less motivated to supply forces because they were far from active theaters of conflict. Defects in the
requisition system “nearly cost the Nation victory in the Revolutionary War[,]” according to the Supreme
Court, and the need to fix the process for raising armies became one of the “recognized necessities” for
calling the 1787 convention in Philadelphia that drafted the Constitution.
Click here to continue to Part 2.

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Author Information

Steve P. Mulligan

Attorney-Adviser

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