Robert Leider argues that the Constitution originally divided military power between the federal and state governments

In my earlier exchange with David Bernstein about originalism and precedent, he asked me if I could name any prominent originalists who are in favor of “compensating adjustments” — i.e., thinking holistically about the effect that non-originalist precedents can have on other aspects of the constitutional structure.

He’s not as prominent as he ought to be, but one good example that came to my mind was this recent paper by Robert Leider, Federalism and the Military Power of the United States.  Leider argues:

the Framers carefully divided the military power between the federal and state governments to provide a reciprocal system of checks on both federal and state-based oppression. These checks have been compromised by the acceptance of conscription into the national army, the creation of the U.S. Army Reserve, and dual enlistment of National Guard officers and soldiers — all of which have enhanced the federal military power beyond its original constitutional limits.

Leider then suggests that this may have implications for contemporary controversies over the “Constitution’s division of war powers between the President and Congress, where a greater congressional role may be a legitimate compensating adjustment for the abolition of the originally contemplated vertical checks.”

The article is quite long, as historically-focused legal scholarship often is, but I learned a great deal from it.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).

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