We take for granted the availability of a professional, full-time military under the nation’s constitutional structure, but that outcome was not inevitable at the founding.

The Battle of Kip’s Bay was a British amphibious assault that occurred on September 15, 1776 as part of the campaign for New York. It led to a retreat of the American militia forces, exposing the limitations of militia-based defense and helping shape the framers’ decision to empower Congress to raise a standing army.

The Battle

At the time, Continental forces consisted largely of local part-time militiamen, with rudimentary training and loyalty to individual states, or untrained independent volunteers. The division of Continental forces left 800 inexperienced militiamen to defend Kip’s Bay, an area of Manhattan along the East River, roughly between present-day East Thirty-Second and Thirty-Eighth Streets.

On September 15, 1776, about 4,000 British and German Hessians in 84 flatboats descended on Kip’s Bay. The militiamen broke under the onslaught, causing panic. As the militiamen fled, entire regiments abandoned their weapons and gear in retreat.^[1]

Washington’s Reaction

General Washington, four miles away, heard the shooting and immediately rode to Kip’s Bay. Upon arrival, Washington witnessed the militia flight, which he later described in a letter to the Continental Congress: “to my great surprize and Mortification I found the Troops that had been posted in the Lines retreating.”^[2]

Ten days after the battle, Washington again wrote to the Continental Congress to convey his concern about the continued dependence on a militia, analogizing it to “resting upon a broken staff.”^[3]

Reorganizing the Continental Army

Following these events, the Continental Congress formed the Committee to Inquire into the State of the Army and tasked it with determining how to effectively compete against the British. After meeting with Washington, the committee recommended enlarging the Continental Army to 60,000 troops with a majority committed for the duration of the war.

Implementation, however, proved difficult, as Congress lacked the authority to enforce the reorganization against the states and requisition troops. The war effort thus remained largely dependent on militia service.

Articles & Evolution

The lessons of Kip’s Bay extended beyond the battlefield, helping nudge the framers toward accepting a professional standing army as a permissible feature of the nation’s structure. Prior to the war, the notion of a standing army was widely viewed as contrary to republican values and the liberty of a free people. The Declaration of Independence lists among its grievances the British maintaining “in times of peace, Standing Armies without the Consent of our legislatures.”

Following Kip’s Bay and similar militia dysfunction at the battles of Long Island and White Plains, that view softened. The Articles of Confederation, adopted in 1781, still mandated that each state maintain a well-regulated, disciplined, and armed militia, but also provided for the Confederation Congress to “agree upon the number of land forces” and request specific quotas of troops from each state based on population. It did not, however, expressly permit Congress to maintain a federal standing army during peacetime. The system proved onerous, as states frequently ignored or delayed responding to congressional requests.

Constitution & Compromise

Given these challenges, the Constitutional Convention of 1787 considered whether militias or a standing army would be more appropriate. The Federalists, echoing Washington’s concerns, argued that a permanent military was necessary to compete with other professional armies.^[4] Opponents, however, worried about the size and funding of a standing army—especially one which would be controlled by the Executive as Commander-in-Chief.

As a compromise, the Constitution included in Congress’ powers the authority to raise and support an army, provide and maintain a navy, and create rules for their regulation.^[5] These clauses allowed Congress to raise and maintain an army even during times of peace, but with appropriations limited to two years to ensure democratic accountability.

The Battle of Kip’s Bay, and similar militia failures, demonstrated that the new nation could not rely on militias as its sole means of defense due to their inexperience and unreliability. As a result, viewpoints shifted to supporting a standing army for the nation’s protection, with appropriate checks and balances in place. Kip’s Bay should not be forgotten—as both a steppingstone to the nation’s ultimate adoption of a standing army (with limits), and an example of how real-world experience shapes enduring legal structures.

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Editor’s note: Adam K. Magid is a member of the Board of Editors of the Federal Bar Council Quarterly. McKenna Hunter is a law clerk at Cadwalader, Wickersham & Taft LLP. 

[1] Maj. Ronald T. P. Alcala, Revolutionary Summer: The Birth of American Independence, 217 Mil. L. Rev. 234, 237 (2013) (book review).

[2] Letter from George Washington to John Hancock, President, Continental Congress (Sept. 16, 1776), https://founders.archives.gov/documents/Washington/03-06-02-0251.

[3] Letter from George Washington to John Hancock, President, Continental Congress (Sept. 25, 1776), https://founders.archives.gov/documents/Washington/03-06-02-0305.

[4] The Federalist No. 25 (Alexander Hamilton) (McLean ed., 1788), https://avalon.law.yale.edu/18th_century/fed25.asp.

[5] U.S. Const. art. I, § 8, cls. 12-14.