ARROYO CENTER The Evolution of U.S. Military Policy from the Constitution to the Present, Volume I The Old Regime: The Army, Militia, and Volunteers from Colonial Times to the Spanish-American War Gian Gentile, Jameson Karns, Michael Shurkin, Adam Givens Prepared for the United States Army Approved for public release; distribution unlimited For more information on this publication, visit www.rand.org/t/RR1995z1 Library of Congress Cataloging-in-Publication Data is available for this publication. ISBN: 978-0-8330-9822-1 Published by the RAND Corporation, Santa Monica, Calif. © Copyright 2019 RAND Corporation R® is a registered trademark. Limited Print and Electronic Distribution Rights This document and trademark(s) contained herein are protected by law. This representation of RAND intellectual property is provided for noncommercial use only. Unauthorized posting of this publication online is prohibited. 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Support RAND Make a tax-deductible charitable contribution at www.rand.org/giving/contribute www.rand.org Preface This report documents research and analysis conducted as part of a project entitled “History of United States Military Policy from the Constitution to the Present,” spon- sored by the Deputy Chief of Staff, G-8, U.S Army. The purpose of this volume is to provide the Army with a history of the evolution of the major laws that govern the Army that were written between 1898 and 1940. The Project Unique Identification Code (PUIC) for the project that produced this document is RAN157253. This research was conducted within RAND Arroyo Center’s Strategy, Doctrine, and Resources Program. RAND Arroyo Center, part of the RAND Corporation, is a federally funded research and development center (FFRDC) sponsored by the United States Army. RAND operates under a “Federal-Wide Assurance” (FWA00003425) and com- plies with the Code of Federal Regulations for the Protection of Human Subjects Under United States Law (45 CFR 46), also known as “the Common Rule,” as well as with the implementation guidance set forth in DoD Instruction 3216.02. As applicable, this compliance includes reviews and approvals by RAND’s Institutional Review Board (the Human Subjects Protection Committee) and by the U.S. Army. The views of sources utilized in this study are solely their own and do not represent the official policy or position of the U.S. Department of Defense or the U.S. government. iii Series Introduction The current institutional arrangement of the Army, which comprises a Regular Army and two reserve components—the Army National Guard of the United States and the U.S. Army Reserve—has been the same since 1940. As a result, a conventional wisdom has developed that this structure is appropriate to the time and unchangeable. When debating the Army’s size, appropriate roles and functions, and the laws required to authorize, empower, and govern the Army, U.S. policymakers often think about evo- lutionary institutional modifications and rarely question the underlying assumptions that led to this structure. It is easier to tinker with the existing Army than to consider fundamental changes to the Army’s statutory foundation. This four-volume history of U.S. military policy argues that little about the Army’s organization is unchangeable or constitutionally mandated, a fact that should give policymakers license to explore a wider range of options for the Army of the future.1 The National Commission on the Future of the Army (NCFA), which Congress established as part of the National Defense Authorization Act of 2015, is a case in point.2 Congress gave the NCFA the mandate, among other things, to examine the assumptions behind the Army’s current size and force mix. Despite this mandate, the 1 Prominent American military historical surveys are Emory Upton, The Military Policy of the United States, 4th ed., Washington, D.C.: U.S. Government Printing Office, 1903, pp. 83–84; William Winthrop,Military Law and Precedents, Boston, Mass.: Little, Brown, and Company, 1896; Marvin A. Kreidberg and Merton G. Henry, History of Military Mobilization in the United States Army, 1775–1945, Washington, D.C.: Department of the Army, 1955; Richard H. Kohn, Eagle and Sword: Federalists and the Creation of the Military Establishment in America, 1783–1802, New York: Free Press, 1975; Allan R. Millett, Peter Maslowski, and William B. Feis, For the Common Defense: A Military History of the United States from 1607–2012, New York: Free Press, 2012; I. B. Holley, General John M. Palmer, Citizen Soldiers, and the Army of a Democracy, Westport, Conn.: Green- wood Press, 1982; Eilene Marie Slack Galloway, History of United States Military Policy on Reserve Forces, 1775– 1957, Washington, D.C.: U.S. Government Printing Office, 1957; Russell Frank Weigley, Towards an American Army: Military Thought from Washington to Marshall, New York: Columbia University Press, 1962; Russell Frank Weigley, History of the United States Army, New York: Macmillan, 1967; Russell Frank Weigley, The American Way of War: A History of United States Military Strategy and Policy, New York: Macmillan, 1973; U.S. House of Representatives, Review of the Reserve Program: Hearing Before the Subcommittee No. 1 of the Committee on Armed Services, Washington, D.C.: U.S. Government Printing Office, February 4–8, 18–21, 1957. A reference guide for the legislation behind the military policy can be found in Richard H. Kohn, The United States Military Under the Constitution of the United States, 1789–1989, New York: New York University Press, 1991. 2 Public Law 113-291, National Defense Authorization Act for Fiscal Year 2015, December 19, 2014. v vi The Evolution of U.S. Military Policy from the Constitution to the Present, Volume I NCFA elected not to reconsider the Army’s statutory authorities and responsibilities and instead focused on ways to refine and improve the existing force. The commission’s published report argued that the nation has “one Army” and a “traditional military policy” for sound “historical, cultural, legal, operational, and strategic” reasons.3 By using this phrasing, the NCFA reinforces the idea that a coherent and constant “tradi- tional military policy” has governed the Army from the earliest days of the Republic. The NCFA’s report offers 63 recommendations for such things as improving Army training and readiness, refining the mix of forces and capabilities, and improving per- sonnel management. Yet none of the 63 recommendations calls for a reconsideration of the fundamental laws that authorize, empower, and govern the Army, or the Army’s three-component construct. The notion of a coherent and constant traditional military policy stretching from the earliest days of the Republic to today is, however, a myth. U.S. military policy evolved substantially between the writing of the Constitution and 1940, and very little has changed since. Indeed, the term military policy was not used in the United States until the late 19th century, when Brevet Major-General Emory Upton introduced the term to Army thinkers. As used by Upton, the term military policy connoted matters pertaining to the U.S. Army, such as the laws that govern the institution and the poli- cies for wartime expansion. Today the term continues to refer to Army matters to the exclusion of the other Services. The term traditional military policy first appeared in the 1940 Selective Service Act. We highlight the etymology of the term to underline the fact that today’s military policy is not the result of a coherent tradition but rather the distillation of over two centuries of debates and compromises between various competing interests, many of which arguably reflected the political and cultural debates of the day at least as much as the need to meet the military requirements of the nation’s security. For each genera- tion since the writing of the Constitution, ideology, political culture, and institutional momentum have limited the discourse on military policy and constrained the range of options available for serious consideration. Indeed, the current force structure is strik- ingly different from anything the Framers of the Constitution imagined. Although the notion of doing so was once considered anathema, the United States now entrusts its national security in part to a standing, professional force—its Regular Army, aug- mented by two largely part-time yet highly professional standing reserve components. Once organized to defend a growing nation protected by two oceans, the U.S. Army today is postured to deploy globally on very short notice. One important example of how the use of the term traditional military policy can be misleading is the current Title 32 of the U.S. Code, which states that “In accordance with the traditional military policy of the United States, it is essential that the strength 3 National Commission on the Future of the Army, Report to the President and the Congress of the United States, Arlington, Va., January 28, 2016, p. 1. Series Introduction vii and organization of the Army National Guard and the Air National Guard as an inte- gral part of the first line of defenses of the United States be maintained and assured at all times.”4 Yet the National Guard’s role and status, and the laws governing it, have evolved considerably over time and cannot be regarded simply as a continuation of the 18th century method of producing military ground forces by “calling forth” various types of colonial militias, as the term traditional military policy implies.