The Washington Post

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).



Success! Check your inbox for details. You might also like:

Please enter a valid email address

See all newsletters

Show Comments

Sign up for email updates from the "Confronting the Caliphate" series.

You have signed up for the "Confronting the Caliphate" series.

Thank you for signing up
You'll receive e-mail when new stories are published in this series.
Most Read



Success! Check your inbox for details.

See all newsletters

Your Three. Video curated for you.
Next Story
Eugene Volokh · January 26, 2014

To keep reading, please enter your email address.

You’ll also receive from The Washington Post:
  • A free 6-week digital subscription
  • Our daily newsletter in your inbox

Please enter a valid email address

I have read and agree to the Terms of Service and Privacy Policy.

Please indicate agreement.

Thank you.

Check your inbox. We’ve sent an email explaining how to set up an account and activate your free digital subscription.