"Resolved, That no distinction shall ever be made, in the organization of the volunteer militia of this Commonwealth, on account of color or race."
On this proposition Mr. Sumner spoke as follows.
I HAVE a suggestion for my friend opposite [Mr. Wilson], in regard to the form of his proposition, which, if he accepts it, will, as it seems to me, absolutely remove his proposition from the criticism of my most eloquent friend before me [Mr. Choate], and from the criticism of other gentlemen who have addressed the Convention. I suggest to strike out the word "militia," and substitute the words "military companies," so that his proposition will read, "that in the organization of the volunteer military companies of the Commonwealth there shall be no distinction of color or race."
Mr. Wilson. I accept the suggestion, and will amend my proposition accordingly.
Mr. Sumner. Now the proposition, as amended, I assert, is absolutely consistent with the Constitution of the United States, and, I believe, in conformity with the public sentiment of Massachusetts.
A brief inquiry will show that it is consistent with the Constitution of the United States, and in no respect interferes with the organization of the National Militia. That Constitution provides for organizing, arming, and disciplining the militia, and gives Congress full power over the subject,—in which particular, be it observed, it is clearly distinguishable from that of fugitive slaves, over whom no such power is given. To be more explicit, I will read the clause. It is found in the long list of enumerated powers of Congress, and is as follows: "The Congress shall have power 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 United 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." And then, at the close of the section, it is further declared, that Congress shall have power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers."
In pursuance of this power, Congress has proceeded, by various laws, "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 United States." The earliest of these laws, still in force, is entitled "An act more effectually to provide for the national defence, by establishing an uniform militia throughout the United States."[3] This was followed by several acts in addition. Congress, then, has undertaken to exercise the power of "organizing" the militia under the Constitution.
Here the question arises, to what extent, if any, this power, when already exercised by Congress, is exclusive in character. Among the powers delegated to Congress there may be some not for the time being exercised. For instance, there is the power "to fix the standard of weights and measures." Practically, this has never been exercised by Congress; but it is left to each State within its own jurisdiction. On the other hand, there is a power, belonging to the same group, "to establish uniform laws on the subject of bankruptcies throughout the United States," which, when exercised by Congress, has been held so far exclusive as to avoid at once all the bankrupt and insolvent laws of the several States.
I might go over all the powers of Congress, and find constant illustration of the subject. For instance, there is the power "to establish an uniform rule of naturalization," on which Chief Justice Marshall once remarked, "That the power of naturalization is exclusively in Congress does not seem to be, and certainly ought not to be, controverted."[4] There is the power "to regulate commerce with foreign nations and among the several States," which was early declared by the Supreme Court to be exclusive, so as to prevent the exercise of any part of it by the States.[5] There is the power over patents and copyrights, which is also regarded as exclusive. So also is the power "to define and punish piracies and felonies committed on the high seas, and offences against the Law of Nations." So also is that other power, "to establish post-offices and post-roads." All these powers, as in the case of the power over the National Militia, have been exercised by Congress, and even if not absolutely exclusive in original character, have become so by exercise.