The Army Clause, Part 2: Drafting and Ratification History

The Army Clause, Part 2: Drafting and Ratification History

Legal Sidebari

The Army Clause, Part 2: Drafting and
Ratification History
July 22, 2024
This Legal Sidebar is the second in a five-part series that discusses the Constitution’s Army Clause, 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 government’s suite of war powers, understanding the Army Clause may assist Congress in
its legislative activities.
This Sidebar post discusses the drafting and ratification of the Army Clause. Other Sidebars in this series
discuss the clause’s historical backdrop; 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.
Drafting History at the Constitutional Convention
At the Constitutional Convention, the Framers of the Constitution emphasized the militia as the primary
guarantor of national defense, but abandoned the Articles of Confederation’s system for raising armies by
“mak[ing] requisitions from each state.” During opening remarks at the Convention, Edmund Randolph,
the governor of Virginia, observed that that the Articles of Confederation did not provide security against
foreign invasion because the national government was not “permitted to prevent a war nor to support it by
[its] own authority.” In light of this experience, the first draft of the Constitution prepared at the
Constitutional Convention gave Congress authority to “raise armies” without state involvement.
When the full Convention discussed this early draft of the Army Clause, the delegates voted to add the
words “and support,” but they did not debate or discuss the reasons for the change. Nor was there debate
over which branch of government should possess this power. It was a widely held view in Founding-era
America that English monarchs’ misuse of military forces demonstrated that the power to raise and
support armies should reside in the legislative branch rather than with an executive head of state.
The Army Clause quickly generated opposition from delegates who feared that it could lead to expensive
and oppressive standing armies in peacetime. Immediately after the delegates agreed to the addition of
language authorizing Congress to “support” armies, Massachusetts delegate Elbridge Gerry criticized the
absence of a “check [against] standing armies in time of peace” in the Army Clause. Arguing that he
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“could never consent to a power to keep up an indefinite number” of troops, Gerry moved to add a limit
on the number of peacetime forces, which he suggested should be no more than “two or three thousand.”
New Jersey delegate Jonathan Dayton responded that “preparations for war are generally made in peace;
and a standing force of some sort may . . . become unavoidable.” One delegate supported Gerry’s
proposal, but others voiced objections, and Gerry’s motion was defeated.
Although Gerry’s motion for a numerical limit was quickly rejected, the delegates would continue to
debate whether the Army Clause properly balanced distrust of standing armies with the need for a
professional military force to provide security on American soil. Rather than place a ceiling on the
number of troops, the delegates coalesced around the idea of controlling the army’s size and power by
limiting congressional authority to appropriate funds for the army’s use. Delegate Hugh Williamson of
North Carolina argued that limitations on appropriations would be the “best guard” against the dangers of
a standing army. South Carolina Delegate Charles Pinckney later introduced a proposal mandating that
“no grants of money shall be made by the Legislature for supporting milit[]ary land forces for more than
one year at a time[.]” Pinckney’s proposed one-year limitation had its roots in English law and in practice
with Parliament passing annual funding bills for the British army starting in the late 17th century.
Later in the Convention, an 11-person committee that had been formed to address postponed and
unresolved issues in the Constitution circulated a report recommending that Congress be given the power
to “raise and support armies,” provided that “no appropriation of money to that use shall be for a longer
term than two years[.]” Elbridge Gerry objected that “he could not conceive a reason” to appropriate
funds for the army for two years instead of one. More broadly, Gerry argued that the American people
would not accept an authorization of peacetime standing armies, which were dangerous to liberty and
unnecessary, even in a large country with an expansive frontier like the United States.
Roger Sherman of Massachusetts responded to both lines of argument. He countered that a two-year
appropriations time frame would better align with the biannual election of legislators to the House of
Representatives and that it might be inconvenient to require annual appropriations because Congress
might not be in session in the time necessary to renew funding. As to Gerry’s more fundamental
criticisms, Sherman argued that the two-year appropriations limit was a “reasonable restriction on the
number and continuance of an army in time of peace.” Following this exchange, the Convention voted to
approve the Army Clause in its final, substantive form.
Although it would not be modified, the Army Clause remained a controversial topic until the final days of
the Convention. The day before the final vote to approve the Constitution, George Mason and two co-
delegates from Virginia sought to add cautionary language highlighting the importance of state militias to
guard against “the danger of standing armies in time of peace[.]” Even though James Madison was an
ardent supporter of a strong federal government at the time, he favored the change, reasoning that the
amendment would “not restrain Congress from establishing a military force in time of peace if found
necessary; and as armies in time of peace are allowed on all hands to be an evil, it is well to
discountenance them by the Constitution. . . .” After New York delegate Gouverneur Morris argued that
the proposal would set a “dishonorable mark of distinction on the military class[,]”opposition formed, and
Mason’s motion was defeated.
Of the delegates who remained until the close of the Federal Convention, three declined to sign the
Constitution. All of these delegates mentioned the absence of checks against peacetime standing armies in
their criticisms. Their opposition would presage an even more vigorous debate in the state ratifying
conventions where opponents to the Constitution would frequently raise concerns about standing armies,
and the Constitution’s supporters would find themselves compelled to articulate a more fulsome defense
of the Army Clause.

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Debate in the State Ratifying Conventions
The Army Clause was a recurring concern during the state conventions that considered whether to ratify
the Constitution. Opponents of the Constitution, who would become known as Anti-Federalists, attacked
the Clause “with incredible zeal and pertinacity, as dangerous to liberty, and subversive of the state
governments.” The New York-based Anti-Federalist who wrote under the pseudonym “Brutus” argued
that federal officials would use a permanent army to usurp power and “subvert the forms of the
government, under whose authority they are raised.” Another pseudonymous Anti-Federalist, known as
“Federal Farmer,” contended that the two-year appropriations limitation would not provide a meaningful
check because, once Congress raised an army, it would continue to appropriate funds to support troops
indefinitely. Other Anti-Federalists argued that the Army Clause and the constitutional allocation of war
powers would lead to the recreation of a European-style monarch in America.
Supporters of the Constitution, who became known as Federalists, responded by emphasizing the need for
a professional military force to address security threats. Federalists argued that Native American tribes,
British forces that refused to evacuate their American posts after the Revolutionary War, and the Spanish
presence in Florida posed significant dangers that would require a permanent military establishment. After
Massachusetts was forced to suppress a violent uprising known as Shays’ Rebellion without the aid of
national forces, many American leaders concluded that a stronger centralized power to raise armies was
necessary to address domestic uprisings.
Federalists noted that, unlike most European systems, the Constitution placed the power to raise and
support armies in a politically accountable legislative branch rather than with a monarch or other
executive. Writing in the Federalist Papers, Alexander Hamilton and James Madison contended that,
because appropriations for the army must be renewed every two years, democratic influence and political
processes would prevent Congress from maintaining forces so large that they posed a threat to the
American people. In the absence of a national army, Federalists asserted, small states would enter into
hazardous military alliances with foreign countries, and each state would build its own permanent military
force, thus compounding the very problem Anti-Federalists sought to avoid. Madison also argued that
“the State governments, with the people on their side, would be able to repel” any danger that a national
army might present to Americans’ liberty.
Federalists and Anti-Federalists frequently sparred over the relationship between standing armies and
militias. Although most Federalists recognized that the militia was to play a critical role in national
defense, many believed the militia alone to be inadequate to meet America’s greatest security needs. Anti-
Federalists countered that the state militias were responsible for many successes during the Revolutionary
War, and that, if a peacetime standing army was present, the militia would fall into disuse and deteriorate,
leaving no body of citizen-soldiers equipped to protect the people from an overbearing or tyrannical
government.
These competing concerns were ultimately resolved through amendments to the Constitution in the Bill of
Rights rather than through changes to the Army Clause. At the ratifying conventions, some states
proposed to amend the Army Clause to require a supermajority vote in Congress to maintain peacetime
standing armies, but these changes were not adopted. Instead, fears over standing armies were addressed
through protections for individual rights rather than structural changes to Congress’s power to raise and
support armies. The Second Amendment, which recognizes the importance of “a well regulated militia” to
national security, provides a right to bear arms, which was an outgrowth of concerns over centralized
military powers, and the Third Amendment restricts one particularly objectionable military practice that
Americans experienced while under British rule—the quartering of soldiers in private homes.
Click here to continue to Part 3.

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Author Information

Steve P. Mulligan

Attorney-Adviser

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