[Footnotes are in ( ).
Footnote texts are omitted.]

The general words of the Constitution— famous phrases such as "due process," "freedom of speech," "interstate commerce," and "raise and support armies"— are not self-evident concepts. As Justice Frankfurter said, "The language of the [Constitution] is to be read not as barren words found in a dictionary but as symbols of historic experience illumined by the presuppositions of those who employed them. Not what words did Madison and Hamilton use, but what was it in their minds which they conveyed?(1) While the framers obviously could not have foreseen the discovery of electromagnetic radio waves or atomic energy, and had no "intent" concerning the regulation of television stations or uranium piles. they knew only too well the dangers of a professional army and the need for training and mobilizing the citizens for defense. They considered these problems in more detail than those of virtually any other governmental function, and thus the plans they made for our nation s military forces deserve detailed inquiry. Such a study reveals that the military structure presently existing in the United States, which depends primarily upon direct conscription of citizens into the federal army, fails to meet the standards established by the framers of the Constitution in 1787.

Arguments about conscription produce rather strange alliances. The left has traditionally opposed the draft on the grounds that it violates the conscientious beliefs of those opposed to war, compels participation in military adventures against reform movements throughout the world, and generally lays the heavy hand of government too forcefully on the shoulders of every citizen. The continuing viability of this tradition is exemplified by Senator Mark Hatfield's recent assertion that a volunteer army would preserve individual liberty and freedom as much as possible from unjustified security with the greatest efficiency and economy.(2) The far right also has frequently called for a volunteer army, but for markedly different reasons. Many conservatives and military men prefer a professional army since regulars are more easily trained and controlled, and a permanent corps is more efficient in the long run because of the lower turn-over in personnel. Such a professional force also fits traditional elitist ideas held by the right about the organization of society.

Others have argued that a federal draft is necessary not only to mobilize the nation's manpower most efficiently in an emergency, but also to serve as a check upon military adventures that offend the political conscience of the country. While a volunteer army would necessarily be "composed of the poor and the black,"(3) a conscripted army is made up of all classes. And, to the extent that the sons of the middle class are unwilling hostages of the military, their parents will want to know exactly where they will be sent and why. Opposition to the Vietnam War seems to be growing even among the traditionally conservative areas of the Midwest for precisely this reason. President Nixon, who reads the political pulse very clearly, has pressed for an end to the war and an end to the draft(4) because he is aware of these sentiments.

Thus, the basic organization of our military forces involves problems that are crucial to the democratic process. The worries and concerns that troubled the framers of the Constitution are still with us, and, as the debate on the draft continues, another look backward may be worthwhile.

The cases arose in the midst of World War 1 and were decided only eight months after passage of the 1917 draft law.(6) The Selective Draft Act had been signed into law on May 18, 1917, and June 5 was set as registration day for all young men of draft age. Two who refused to register were Joseph F. Arver and Otto H. Wangerin; they were indicted on June 8, 1917, tried the following month before a United States district court in Minnesota, found guilty, and sentenced to one year in prison. The Supreme Court granted a writ of error directly to the trial court,(7) and argument was presented on December 13 and 14, 1917, along with the cases of other draft resisters from New York. At the same time the Court heard the appeals of Alexander Berkman and Emma Goldman,(8) two noted anarchist leaders who had been found guilty of conspiring to counsel resistance to the draft law in New York, and the appeals of Charles E. Ruthenberg, Alfred Wagenknecht, and Charles Baker, prominent Ohio Socialists who were convicted of encouraging a young man not to register.(9)

In asserting the invalidity of the draft, the defendants pressed two primary arguments: that the thirteenth amendment's prohibition of involuntary servitude deprived Congress of any power to conscript; and that the draft conflicted with the militia clauses of the Constitution since the federal government had effectively destroyed the state forces by drawing all the members of the state militia into federal service and shipping them overseas. In the course of their argument, the defendants traced the history of English military organization, emphasizing that no general conscription law had been passed in England prior to the twentieth century. They also claimed that the acts and regulations of the draft unlawfully delegated legislative authority to the President. The Government's case was argued by John W. Davis, then Solicitor General, later Democratic presidential candidate, and one of the greatest advocates ever to practice before the Supreme Court. Davis submitted a joint brief for all of the cases, and Chief Justice Edward White carefully followed it in his opinion upholding the law Davis characterized the power to conscript as an essential attribute of sovereignty. He cited the large number of nations enforcing compulsory military service in 1917, concluding: "It would be a contradiction in terms to declare the Government of the United States a sovereign, endowed with all the powers necessary for its existence, yet lacking in the most essential of all the power or self-defense."(10) The Government also cited the many colonial and state laws in force before 1787— almost 200 were listed— calling for compulsory militia service by all male citizens. Davis argued that the fact that a federal draft was proposed (although not passed) in 1814 and the fact that a conscription law was enacted during the Civil War showed the practical exercise of the power and was therefore a recognition of it.

Nor were the militia clauses of the Constitution(11) relevant, he claimed, since men were taken directly into a federal army by the l917 law rather than as members of a federalized state militia. Finally, the Government dismissed the thirteenth amendment argument by pointing out that the sole purpose of the amendment was to abolish chattel slavery, not to eliminate compulsory governmental service.

Surprisingly, none of the parties in the Selective Draft Law Case relied to any extent on precedent or history. There had been a few remarks about conscription in earlier federal cases,(12) and a Pennsylvania Supreme Court case, Kneedler v. Lane,(13) had upheld the Civil War draft. But no Supreme Court decision that was on point had ever been handed down. Even though the government's brief was 137 pages long, only three pages were devoted to the Constitutional Convention of 1787 and to the various state ratifying conventions while an additional three pages contained citations from The Federalist Papers. Yet these sources are traditionally the most important aid to constitutional interpretation. Moreover, the petitioners briefs in Arver discussed the same subject matter in only one paragraph. Thus, the Court was deprived of the most crucial materials on which to base its decision.

The Supreme Court's unanimous opinion upholding the conscription law followed the government's presentation closely. In essence, Chief Justice White found that the constitutional provisions granting Congress power "to declare war"(14) and "to raise and support armies,"(15) combined with the necessary and proper clause, permitted the Government to draft citizens directly into a federal army.(16)

The Chief Justice's opinion placed principal reliance on five points. (1) The constitutional language allowing Congress to raise armies permitted a compulsory draft, since Congress must have the power to procure men by any means for those armies. (2) All nations as attributes of sovereignty have the right to conscript. (3) The English had compelled military service throughout their history. (4) The colonies had also used conscription into the militia. (5) The Continental Congress' lack of power to raise and control its own army was one of the reasons for the formation of the new Constitution. The Court then went beyond the Federalist period and noted that in l814 Secretary of War James Monroe had proposed a plan for conscription, and that a conscription law had been passed during the Civil War. An analysis of each constituent part of the Court's opinion shows how the political pressures of World War I produced a chain of errors in this most crucial case concerning the federal government's relationship to its citizens.

Chief Justice White began his opinion by quoting the various military clauses in the Constitution. He then wrote:

As the mind cannot conceive an army without the men to compose it, on the race of the Constitution the objection that it does not give power to provide for such men would seem to be too frivolous for further notice...[I]t is said, the right to provide is not denied by calling for volunteer enlistments, but it does not and cannot include the power to exact enforced military duty by the citizen. This however but challenges the existence of all power, for a governmental power which has no sanction to it and which therefore can only be exercised provided the citizen consents to its exertions is in no substantial sense a power.(17)

To show that compulsory service was required by the Constitution, the Court noted that in 1918 most of the nations of the world had compulsory military service.(19) However, the fact that every other nation in the world may have enforced conscription during World War I is irrelevant if the framers of the Constitution did not grant Congress that power. The United States may be the only nation with an electoral college system of choosing its chief executive or with a federal system with prohibitions on local interference with interstate commerce. The fact that virtually every other jurisdiction in the world permits the use of illegally seized evidence in criminal trials is of no relevance when an interpretation of our Constitution is at issue.

Compulsory military service was not enacted in any modem nation until more than ten years after the ratification of the Constitution. A leading authority on conscription has described it as "something characteristically modern [which] occurred for the first time in France [in] 1798."(20) Moreover, to argue that the Constitution does not permit a draft does not deny the "obligation of the citizen to render military service in case of need and the right to compel it." The framers knew that the nation's manpower might have to lie marshaled in an emergency; but, as shown below, the system they selected was one requiring mobilization through the state militia system, not direct conscription into a federal army. Finally, at present, a much smaller group of nations enforces direct conscription than did in 1918; for example, Great Britain, Canada, India, and Pakistan do not have a direct draft today.(21) But clearly the Constitution does not change as a larger or smaller number of foreign states pass laws on military service, and thus the Arver Court's reliance on the universality of conscription is at best marginally relevant.

The next argument advanced in the Selective Draft Law Cases was drawn from the military history of Great Britain. In one rather terse paragraph, the Court concluded:

In England it is certain that before the Norman Conquest the duty of the great militant body of the citizens was recognized and enforceable . . . . It is unnecessary to follow the long controversy between Crown and Parliament as to the branch of the government in which the power resided, since there never was any doubt that it somewhere resided. So also it is wholly unnecessary to explore the situation for the purpose of fixing the sources whence in England it came to be understood that the citizen or the force organized from the militia as such could not without their consent be compelled to render service in a foreign country, since there is no room to contend that such principle ever rested upon any challenge of the right of Parliament to impose compulsory duty upon the citizen to Perform military duty wherever the public exigency exacted, whether at home or abroad. This is exemplified by tile present English Service Act.(22)

To cite the English experience before the Norman Conquest as a precedent for the American Constitution is far fetched at the very least. Similarly, the fact that the English Service Act of 1916 may have compelled service abroad has little relevance to the intention of the framers in 1787. But, ignoring these difficulties, the Court leaped over a thousand years of English history in a few brief sentences and disregarded the crucial period preceding the Revolutionary War. The latter omission is particularly unfortunate, for an examination of the relevant historical period clearly demonstrates that during colonial times the regular army forces in England were always composed of volunteers.

In Cromwell's time, the Levellers and other republican supporters had demanded specific protection against conscription as part of the basic freedoms of all Englishmen. The original "Agreement of the People" presented to the Council of the Army in 1647 contained a section which proclaimed that "constraining any of us to serve in the wars is against our freedom; and therefore we do not allow it in our Representatives."(23

The Agreement of the People which was finally passed by the House of Commons in 1648 specifically provided:

We do not empower [Parliament] to impress or constrain any person to serve in foreign war, either by sea or land, nor fur any military service within the kingdom; save that they may take order for the forming, training and exercising of the people in a military way, to be in readiness for resisting of foreign invasions, suppressing of sudden insurrections, or for assisting in execution of the laws; and may take order for the employing and conducting of them for those ends; provided, that even in such cases, none be compellable to go out of the county he lives in, if he procure another to serve in his room.(24)

a true and lively Example of a Government with an Army; an Army that was raised in the Cause, and for the sake of Liberty; composed for the most part of Men of Religion and Sobriety. If this Army could commit such violences upon a Parliament always successful, that had acquired so much Reputation both at home and abroad, at a time when the whole People were trained in Arms, and the Pulse of the Nation beat high for Liberty; what are we to expect... in a future Age.(25)

Charles' successor, James II, continued the effort to maintain his own armed forces. When the Duke of Monmouth attempted to overthrow him in 1685, James increased the army to 15,000 men and later 30,000. To strengthen his position against Parliament, he sought allies among the Protestant dissenters and filled the army with Irish Catholics until they constituted about one third of his total forces. According to Trenchard, James "violated the Rights of the People, fell out with the Church of England, made uncertain Friends of the Dissenters and disobliged his own Army; by which means they all united against him."(28) William of Orange and Mary ascended to the English throne in 1689, and shortly thereafter Parliament passed a Declaration of Rights, the basic Bill of Rights in the English Constitution. The sixth article of the Declaration stated: "That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law."(29) Trenchard's view, however, even William went too far in organizing his army. War in Ireland led Parliament to grant the king 50,000 men and Trenchard wrote: "I will venture to say, that if this Army does not make us Slaves, we are the only People upon Earth in such Circumstances that ever escaped it, with the 4th part of their number."(30)

John Trenchard and his later collaborator Thomas Gordon were significant transmitters of English liberal thought to the colonies. Historian Bernard Bailyn wrote of the English "coffeehouse radicals":

More than any other single group of writers they shaped the mind of the American Revolutionary generation. To the colonists the most important of these publicists and intellectual middlemen were those spokesmen for extreme libertarianism, John Trenchard... and Thomas Gordon.(31)

Proposals to conscript for the regular Army were advanced in Parliament in 1704 and 1707, but were rejected.(34) Moreover, under the military laws passed in 1756, (35) 1757,(36) 1778,(37) and 1779,(38) only idle and disorderly persons were pressed into service, and then only as punishment. This too was strongly condemned. It is true that compulsory service for the British militia system was theoretically established during this period; the act of 1757 provided an elaborate structure for choosing the militia on a territorial basis.(39) However, an extensive system of exemptions or substitutes made it extremely unlikely that a nonvolunteer would be taken. Professor J. R. Western, the leading expert on the English militia system, has noted:

The development of the law on the raising of militiamen can be summed up by saying that the principle of obligatory personal service receded farther and farther into the background. Every facility and encouragement was given for the discharge of the obligation by some means of voluntary enlistment, and few balloted men seemed to have had to serve in person save by their own free will.(40)

Professor Western also points out that a great many Englishmen found compulsory military service so "profoundly distasteful" that there were numerous riots against service in the militia after passage of the act of 1757, but that popular unrest abated when it became understood that the law could be avoided and "real conscription was not to be introduced."(41) This strong popular opposition to conscription occurred despite the fact that the English militia acts specifically provided that no militiamen would be forced to serve abroad and that only a limited amount of service was required at home.(42) Nonetheless popular hostility to military service was widespread and the people's aversion to forced military service, even in the militia, continued for many years.

The American colonial leaders were steeped in this anti-military tradition; the available evidence indicates that they were extremely sensitive to the dangers of a professional army and that they saw clearly the distinction between regular forces and the armed citizenry composing the militia. They were also conscious of the fact that no general compulsory conscription law for the regular army was in force in England during the eighteenth century.

After discussing the English experience, the Supreme Court in the Selective Draft Law Case cited the colonial militia system as a precedent for conscription:

In the Colonies before the separation from England, there cannot be the slightest doubt that the right to enforce military service was unquestioned and that practical effect was given to the power in many cases. Indeed the brief of the Government contains a list of Colonial acts manifesting the power and its enforcement in more than two hundred cases. . . . [I]t is indisputable that the States in response to the calls made upon them [by the Continental Congress] met the situation when they deemed it necessary by directing enforced military service on the part of the citizens. In fact the duty of the citizen to render military service and the power to compel him against his consent to do so was expressly sanctioned by the constitutions of at least nine of the States.(43)

However, the colonial militia system has only the most tenuous connection to any modern conscription program. In the first place, the militia was thought of as the armed citizenry as a whole; that is, every able-bodied man was expected to own a weapon and to use it for the protection of his colony. Second, the primary duty expected of each militiaman was merely that he enroll, arm, muster, and attend periodic general training sessions.(44) This system hardly qualifies as a precedent for forced conscription of a citizen for an uninterrupted period in a regular army.

As Professor Russell F. Weigley points out, a distinction soon developed between the "Common Militia"— the entire population of able-bodied men— and the "Volunteer Militia" which in fact performed the functions required of an armed force:

When troops were needed for a campaign, the legislatures assigned quotas to the local militia districts. The local officials then called for volunteers and could impress or draft men when sufficient numbers did not come forward. Usually, compulsory service was limited to expeditions within the colony...

Out of these methods there naturally grew more or less permanent formations of those persons willing to volunteer for active duty. . .(45)

Initially, most of the colonial laws restricted militia service to duty within the colony except in emergency situations, when the governor could permit service outside the borders for limited purposes.(48) In later years the laws restricted to nonfreeholders compulsory service which would lead to expeditions outside the colony. A Virginia law passed in 1752 (49) gave the colony power to levy vagrants or nonvoters, but no person who had a right to vote could be forced, to serve outside Virginia. A later Virginia statute(50) also provided that only vagrants and the unemployed could be impressed for service beyond the borders of the colony. This restriction was congruent with the English practice, which made the militia strictly a county force except in time of invasion and excluded all peacetime service outside the immediate borders of the organizing province.

The Massachusetts laws were comparable. Special legislation was necessary to permit service outside the colony,(51) and service was required only against an "attempt or enterprize [at] the destruction or invasion, detriment or annoyance of our province."(52) Similarly, South Carolina passed a law in 1778 permitting "all idle, lewd, disorderly men," "sturdy beggars," and "vagrants" to go out of the state into the Continental Army ranks to fill the state's quotas.(53)

In many states personal service from each citizen was not required. Liberal laws existed which provided for either substitution or payment of a small fine in lieu of service. For example, in Massachusetts there were five laws passed between 1740 and 1781 allowing a man to arrange for a substitute to take his place in the militia.(54) Other states, including Connecticut, Virginia, and New York, passed legislation providing for a small fine which freed citizens from virtually all forms of militia service. This practice became increasingly frequent in later years of the colonial period.(55)

By the 1750 s and the 1760 s the need for even minimal universal training of all the males of the colonies had receded, and the trend was away from any kind of compulsion. No fewer than nine states abandoned compulsory military establishments in this period.(56) The fact that vagrants and the unemployed were swelling the ranks of the militia, as they had filled the ranks of the British standing army following the statute of 1756, made military service less and less desirable. A recent commentator has noted:

It is difficult to believe that the colonial volunteers of the eighteenth century had more in common with the pityable recruits of the contemporary European armies than with the militia levies of an earlier period; nevertheless, changes in the social composition of American forces between about 1650 and 1750 were in that direction...

Perhaps the vital change was in the tone of active service: with more social pariahs filling the ranks and military objectives less clearly connected to parochial interests, respectable men felt not so impelled by a sense of duty or guilt to take up arms. Only when a war approached totality (as in the Puritan crusade to Louisbourg in 1745, when an impressive percentage of Massachusetts manpower served in the land and sea forces) might the older attitude appear.(57)

Only during the emergency of the Revolution was this trend reversed and compulsory service reintroduced. But every effort was made to fill the Continental Army quotas with nonvoters and nonfreeholders.

Thus, the colonial experience showed only that (1) the primary compulsory aspect of the militia was the requirement to train; (2) the militia was fundamentally a defensive force; (3) continuous service was required solely during periods of emergency; (4) service outside the colony was for outcasts only; and (5) the trend was away from compulsion in the years preceding the Revolution. It is therefore not surprising that the Selective Service System was obliged to admit that the "evidence reveals no preconstitutional systems valuable as models" for a universal draft.(58)

Another proposition which the Supreme Court relied upon to uphold the constitutionality of the draft related to the creation of a new government in 1787. The Court noted:

When the Constitution came to be formed it may not be disputed that one of the recognized necessities for its adoption was the want of power in Congress to raise an army and the dependence upon the States for their quotas. In supplying the power it was manifestly intended to give it all and leave none to the States, since besides the delegation to Congress of authority to raise armies the Constitution prohibited the States, without the consent of Congress, from keeping troops in time of peace or engaging in war.(59)

This statement, however, completely jumbles a very complicated political process which began before the Revolution. The experience of the nation during the war and the dangers which the Constitution-makers were concerned about cannot be telescoped in the offhand way that the Court attempted in the Selective Draft Law Cases. A more detailed analysis of that period is necessary.