Bob Marshall, wannabe 2012 Senate candidate, is proposing a bill that would ban homosexuals from serving in the National Guard. How does he plan on doing this? He claims that the United States Constitution ensues that the states are responsible for disciplining the “militia” (the National Guard).
Except for, you know, that provision that states the exact opposite:
Congress shall have power […] To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress. (United States Constitution, Article I, Section 8, Clauses 1 and 16).
What is the “discipline prescribed by Congress”? That would be the Uniform Code of Military Justice (UCMJ), containing, or not containing, the ‘don’t ask, don’t tell’ provision.
And what did the founders have to say about this? Well, let’s turn to the Federalist Papers:
One Government can collect and avail itself of the talents and experience of the ablest men, in whatever part of the Union they may be found. It can move on uniform principles of policy. It can harmonize, assimilate, and protect the several parts and members, and extend the benefit of its foresight and precautions to each. In the formation of treaties it will regard the interest of the whole, and the particular interests of the parts as connected with that of the whole. It can apply the resources and power of the whole to the defence of any particular part, and that more easily and expeditiously than State Governments, or separate confederacies can possibly do, for want of concert and unity of system. It can place the militia under one plan of discipline, and, by putting their officers in a proper line of subordination to the Chief Magistrate, will, as it were, consolidate them into one corps, and thereby render them more efficient than if divided into thirteen or into three or four distinct independent bodies.
But whatever may be our situation, whether firmly united under one national Government, or split into a number of confederacies, certain it is, that foreign nations will know and view it exactly as it is; and they will act towards us accordingly. If they see that our national Government is efficient and well administered — our trade prudently regulated — our militia properly organized and disciplined — our resources and finances discreetly managed — our credit re-established — our people free, contented, and united, they will be much more disposed to cultivate our friendship than provoke our resentment. If, on the other hand, they find us either destitute of an effectual Government, (each State doing right or wrong, as to its rulers may seem convenient,) or split into three or four independent and probably discordant republics or confederacies, one inclining to Britain, another to France, and a third to Spain, and perhaps played off against each other by the three, what a poor, pitiful figure will America make in their eyes! How liable would she become not only to their contempt, but to their outrage; and how soon would dear-bought experience proclaim that when a people or family so divide, it never fails to be against themselves. (John Jay, Federalist No. 4.)
It requires no skill in the science of war to discern, that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defence. It would enable them to discharge the duties of the camp and of the field, with mutual intelligence and concert — an advantage of peculiar moment in the operations of an army: and it would fit them much sooner to acquire the degree of proficiency in military functions, which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the National authority. It is, therefore, with the most evident propriety, that the plan of the Convention proposes to empower the Union “to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.” [emphasis in italics in original] (Alexander Hamilton, Federalist No. 29.)
That being said, Congress, under the UCMJ, has left it up to the states on how National Guard troops will be disciplined when not under federal active duty (UCMJ, Title 32), but that is a purely statutory arrangement, and Congress would be more than in its right to change. Furthermore, Virginia fully incorporates the provisions of the UCMJ to apply to National Guard troops (Va. Code § 44-40).
Maybe Bob Marshall should dust off his copy of the United States Constitution and Federalist Papers and take a turn rereading them, that’s if he has ever bothered reading them in the first place.
Maybe he can take time off from gay-bashing and do that.
Cross-posted at Virginia Virtucon.