Leider: Deciphering the "Armed Forces of the United States": A Cy Pres Reconstruction of the Modern Constitutional Armies and Militia

Robert Leider

George Mason University - Antonin Scalia Law School, Faculty
Date Written: September 29, 2021


"Abstract
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The Constitution provides for two kinds of military land forces—armies and militia. Commentators and judges generally differentiate the armies from the militia based upon federalism. They consider the constitutional “armies” to be the federal land forces, and the constitutional “militia” to be state land forces—essentially state armies. And the general consensus is that the militia has largely disappeared as an institution because of twentieth-century reforms that brought state National Guards under the control of the federal Armed Forces.

This Article argues that the general consensus is wrong. At the Framing, the proper distinction between “armies” and “militia” had to do with professionalism, not federalism. Armies comprised soldiers for whom military service was their principal occupation, while the militia comprised individuals who were subject to military service only on a part-time or emergency basis. Put differently, the armies were the regular forces, while the militia was the citizen army. From these definitions, this article then provides a better translation of the Framing-era military system to the structure of the modern Armed Forces."

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