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13 J. Nat'l Sec. L. & Pol'y 1 (2022-2023)

handle is hein.journals/jnatselp13 and id is 1 raw text is: ARTICLES The First Calling Forth Clause: The Constitution's Non-Emergency Power to Call Forth the Militia to Execute the Laws Alden A. Fletcher* ABSTRACT The January 6 insurrection and the federal government's response to the George Floyd protests highlight the perils of confiding vast military authority in a single person and the possibility of military force being used against civilians. Troublingly, the Insurrection Act gives the President unilateral control over the decision to call out the troops. And the Constitution seemingly contemplates a military role in domestic law enforcement by permitting Congress to provide for calling forth the Militia to execute the Laws of the Union. This sweeping constitutional provision has surprisingly not been the subject of sustained aca- demic inquiry regarding its original meaning. The scholars who have opined on the Clause's original meaning have generally concluded that execute the Laws requires violent resistance to the laws before military force may be brought to bear. This contention does not withstand close scrutiny. This Article breaks new ground by showing that the best evidence from British, colonial, and founding-era history reveals the phrase execute the Laws was as broad as its plain meaning suggests. Indeed, the historical record reveals that the text of the Clause was the work of the Constitutional Convention's Federalists, who were troubled by the states' failure to comply with the terms of the peace treaty with Great Britain during the Critical Period. Importantly, the historical evidence bolsters the understanding that Congress and the judiciary may be intimately involved in the process of deciding to use mili- tary force domestically. Even before the Calling Forth Act of 1792-which condi- tioned the President's ability to deploy the militia on judicial preapproval-two states with strong executives, New York and Massachusetts, carved out involved roles for the courts in controlling the domestic use of the militia. Moreover, state and colonial calling-forth frameworks predating the Constitutional Convention dis- play a strong trend against unilateral executive decision-making in this area. In short, the founding-era history both supports broad permission of the federal gov- ernment to use troops domestically as well as a significant ability of Congress and * The views expressed here are solely my own. Thanks to Dean William Treanor and Professor John Mikhail for helpful comments on this project. This work benefitted tremendously from discussions with the participants in the Spring 2020 Advanced Constitutional Law Seminar: The Framing and Ratification of the Constitution at the Georgetown University Law Center. Finally, many thanks to the editors of the Journal of National Security Law and Policy. © 2022, Alden A. Fletcher. 1

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