Jefferson Davis, The Rise and Fall of the Confederate Government

“ [437] militia to execute the laws of the Confederate States, suppress insurrections, and repel invasions.”¹

“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 Confederate 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.”²

Congress, then, has the power to provide for organizing the arms-bearing people of the State into militia. Each State has the power to officer and train them when organized.

Congress may call forth the militia to execute Confederate laws; the State has not surrendered the power to call them forth to execute State laws.

Congress may call them forth to repel invasion; so may the State, for the power is impliedly reserved of governing all the militia, except the part in actual service of the Confederacy.

I confess myself at a loss to perceive in what manner these careful and well-defined provisions of the Constitution, regulating the organization and government of the militia, can be understood as applying in the remotest degree to the armies of the Confederacy, nor can I conceive how the grant of exclusive power to declare and carry on war by armies raised and supported by the Confederacy is to be restricted or diminished by the clauses which grant a divided power over the militia. On the contrary, the delegation of authority over the militia, so far as granted, appears to me to be plainly an additional enumerated power intended to strengthen the hands of the Confederate Government in the discharge of its paramount duty, the common defense of the States.

You state, after quoting the twelfth, fifteenth, and sixteenth grants of power to Congress, that “these grants of power all relate to the same subject-matter, and are all contained in the same section of the Constitution, and, by a well-known rule of construction, must be taken as a whole and construed together.”

This argument appears to me unsound. All the powers of Congress are enumerated in one section, and the three paragraphs quoted can no more control each other by reason of their location in the same section than they can control any of the other paragraphs preceding, intervening, or succeeding. So far as the subject-matter is concerned, I have already endeavored to show that the armies mentioned in the twelfth paragraph are a subject-matter as distinct from the militia mentioned in the fifteenth and sixteenth as they are from the navy mentioned in the thirteenth. Nothing can so mislead as to construe together, and as a whole, the carefully separated clauses which define the different powers .to be exercised over distinct subjects by the Congress.

But you add that, “by the grant of power to Congress to raise and support armies without qualification, the framers of the Constitution intended the regular armies of the Confederacy, and not armies composed of the whole militia of all the States.”

I must confess myself somewhat at a loss to understand this position. If I am right that the militia is a body of enrolled State soldiers, it is not possible in