Category: The Constitution

National Security and Access, a Structural Perspective

Public access to court proceedings is a constitutional dictate and yet, since Sept. 11, 2001, the executive branch has pushed for secrecy to shroud the courtroom in the name of national security. Too often, courts have acquiesced despite the fact that access plays a crucial role in checking inter-branch conflicts, providing the electorate the information… Continue reading National Security and Access, a Structural Perspective

The Militia Clauses and the Original War Powers

Salem, Massachusetts, 1637 The history of the National Guard began on December 13, 1636, when the General Court of the Massachusetts Bay Colony ordered the organization of the colony's militia companies into three regiments: the North, South and East Regiments. The colonists had adopted the English militia system which obligated all males, between the ages of 16 and 60, to possess arms and participate in the defense of the community. The early colonial militia drilled once a week and provided guard details each evening to sound the alarm in case of attack. The growing threat of the Pequot Indians to the Massachusetts Bay Colony required that the militia be in a high state of readiness. The organization of the North, South and East Regiments increased the efficiency and responsiveness of the militia. Although the exact date is not known, the first muster of the East Regiment took place in Salem, Massachusetts. The National Guard continues its historic mission of providing units for the first-line defense of the nation. The 101st Engineer Battalion, Massachusetts Army National Guard, continues the East Regiment's proud heritage of 350 years of service.

Today, writes Ben Daus-Haberle, the Militia Clauses of the Constitution lead a curious double life. The Second Amendment’s preamble stars in gun rights debates, but when the conversation shifts to the War Powers, these Clauses drop almost entirely from view. The result is a War Powers literature strikingly silent about the Militia Clauses. Yet the… Continue reading The Militia Clauses and the Original War Powers

Introduction to the Special Online Issue on the 2021 Capitol Insurrection

January 6, 2021, was supposed to be the day that Joe Biden became the congressionally certified winner of the 2020 presidential election. Instead, January 6 will be remembered as the day a violent mob stormed the U.S. Capitol. As the mob easily overcame inadequate security, members of Congress and staff feared for their lives. By… Continue reading Introduction to the Special Online Issue on the 2021 Capitol Insurrection