Abstract

Modern jurisprudence consistently treats the U.S. military as legally distinct, imposing different standards for service members’ constitutional rights, Federal Tort Claims Act lawsuits, and Title VII protections than it does for their civilian counterparts. The legal foundation for this treatment relies in large part on the constitutional military structure, which empowers Congress to prescribe rules and regulations for the “land and naval Forces” and exercise extensive power over “armies.” Usually, both entities—armies and the larger “land and naval Forces”—are considered synonymous with the modern-day all-volunteer force (“AVF”). This interpretation, though, neglects the foundational role the constitutional militia played in composing the larger armed forces.

This Note proposes that the “land and naval Forces” is best understood as including both armies and militias, together creating the military as a whole. It advances this proposition through a close analysis of the text and history of the Army and Militia Clauses—a project that has not yet been undertaken with an eye toward service members’ rights. The evidence from this inquiry indicates the militia establishment was part of a deliberate effort to keep the armed forces integrated with the larger political community. As a result, this Note advances a constitutional reading that reengages with the principles behind the Founding-era militia system. In doing so, it questions modern judicial doctrines that leave military personnel legally siloed off from the general U.S. citizenry and advocates for more robust protection of service members’ rights.

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