As noted above, widespread revulsion existed in the American colonies against a standing professional army. Almost all of the colonial statesmen were familiar with John Trenchard s essays, in which he repeatedly sought to demonstrate that "unhappy Nations have lost that precious Jewel Liberty . . . [when] their Necessities or Indiscretion have permitted a Standing Army to be kept amongst them."(60) The behavior of British troops in America during the ten years before the Revolution confirmed their worst fears of this danger. When British troops landed in Boston in 1768 Andrew Eliot, a leading statesman, wrote: "To have a standing army! Good God! What can be worse to a people who have tasted the sweets of liberty!"(61) The Boston Massacre of 1770 and passage of the Quartering Act in 1774, which permitted the seizure of all buildings for the use of British troops, showed the colonists how accurate Trenchard had been. Indeed, one of the principal complaints expressed in the Declaration of Independence was that George III "Has kept among us, in times of peace, standing armies without the consent of our legislature," and "has effected to render the military independent of and superior to the civil power."

As a result of the popular apprehensions about the military, the Continental Congress imposed strict control over the army that it organized to fight the Revolutionary War. Marcus Cunliffe, the distinguished English historian, has recently concluded that: "[T]he Continental Congress and the majority of Americans were sometimes more concerned with the danger of military overlordship than the danger of military inefficiency. From a combination of doctrine and habit they were reluctant to create their own version of a standing army."(62) Examples of the distrust are plentiful; for instance, the Continental Congress insisted on regular reports from its commanding officer, George Washington, appointed his staff officers, and obliged him to consult with his generals in council before any major military decision was made.(63) Even in the midst of the war, Connecticut proposed that no peacetime army should be allowed.(64)

Furthermore, throughout the Revolution, Congress was never given any power to conscript soldiers directly into the Continental ranks. It had to rely primarily on the militia forces of the various states for the bulk of its fighting men. These forces were occasionally supplemented by enlistments; in June 1775, Congress permitted the enlistment of ten companies into the Continental Army to help New England militia forces around Boston. Although Congress later authorized increased musters, the enlistments, which ran generally for one year, always fell far below expectations. Short-term enlistments seemed an unnecessary leniency in the face of the national emergency, but as Professor Weigley has observed, "the basic cause of that policy was not Congressional folly but the caution necessary in creating a professional army among a people who had fled Europe partly to escape such armies."(65)

When the states were called upon for levies or quotas of troops to meet specific campaign needs, the Continental Congress could not even compel them to deliver the number of troops requisitioned; as might be expected, some were notoriously slow in providing manpower. George Washington suggested a direct draft system in 1777, 1778, and 1780, but "Congress did not dare invoke that instrument in any year of the war."(66) The most that the Continental Congress was prepared to do was to urge the states to deliver their quotas "by draughts, or in any other manner they shall think proper."(67)

However, the states were reluctant to rely upon conscription as a means of satisfying their congressional quotas. In part, this hesitancy may have resulted from the feeling that the state militia systems contained safeguards for the individual which would be vitiated when state forces were put under the control of the central government. While the militia laws had a compulsory element in that all the male citizens had to enroll, train, and muster, the militiamen were usually enrolled with their friends under officers whom they had known most of their lives. As noted above, generous provisions existed for paid substitutes to take the place of those unwilling to serve, and the laws generally provided that the troops could not be sent outside their immediate borders without the consent of the legislature or the governor, The government leaders who controlled the militia were also subject to close electoral check. But none of these safeguards was present when a distant central authority in which the state had only one of thirteen voices decided whom or where the men had to fight. Thomas Jefferson expressed the prevailing sentiment in the states in a letter to John Adams, dated May 16, 1777:

Our battalions for the Continental service was sometime ago so far filled as rendered the recommendation of a draught from the militia hardly requisite. And the more so as in this country it ever was the most unpopular and impracticable thing that could be attempted. Our people under the monarchical government have learnt to consider it as the last of all oppressions.(68)

The Continental Congress not only had to rely on the states for quotas of troops for each campaign; it also had to come hat-in-hand to them for money to pay for the troops it enlisted and the supplies it required, since Congress had no power to tax.(69) Each state was obliged to pay a proportion of the general expenses, based on its population. The states moved as slowly to supply money as they did to furnish men for the Continental cause; by 1780, fifty million dollars in quotas remained unpaid, and Congress was powerless to demand compliance.(70)

There was another reason why the states were not prepared to surrender control of their individual militias to the central authorities: they wished to insure that they would have sufficient manpower to protect their own borders. The generous bounties offered by the states often meant that their ranks were adequate at the same time that the Continental army was experiencing the greatest difficulties recruiting troops. The state bounties "almost put a stop to enlistments in the Continental Army, for few engaged to serve three years . . . when by volunteering to serve in the militia for a few months they received a bigger bounty and higher pay."(71) When the states did supply troops to the central government, they wanted to retain direct control over their own forces even in the field. Early in the war, for example, Samuel Adams of Massachusetts wrote to Elbridge Gerry that "the Militia of each colony should be and remain under the sole Direction of its own Legislative which is and ought to be the sovereign and uncontrollable power within its own limits or Territory."(72) Gerry agreed with Adams, and responded: "We already see the growing thirst for lower in some of the inferior departments of the army, which ought to be regulated so far as to keep the military entirely subservient to the civil in every part of the United Colonies."(73) This combination of Congress' dependence on the states for men and money and the states' constant attempts to interfere with the military authorities nearly drove George Washington to distraction. In 1780 he wrote, "I most firmly believe that the Independence of the United States never will be established until there is an Army on foot for the War; that (if we are to rely on occasional or annual levies we must sink under the expense; and ruin must follow."(74)

Thus, the American leaders emerged from the Revolution with four separate and conflicting ideas alone organizing the military power of the United States:

(l) Washington and other military leaders claimed that a federal, professional army, financed by the central government, had to be maintained.(75)

(2) The political leaders continued to reflect the long-established popular fear of a standing army. Samuel Adams indicated the prevalence of this view even after the war when he wrote that a "standing army, however necessary it may be at some times, is always dangerous to the liberties of the people. Soldiers are apt to consider themselves as a body distinct from the rest of the citizens."(76)

(3 ) The states continued to see the importance of maintaining as much control over their own militia as they possibly could.

(4) The idea of a direct draft by a central government acting upon every citizen without the intervening authority of the state governments was firmly and totally rejected even at the darkest moments of the Revolution.

The experience of the new nation immediately after the Revolutionary War confirmed each of these notions. The deplorable state of the nation's finances made the members of the army uneasy about the bounties and pay allowances which had been promised them. In 1783, a group of officers in New Jersey drew up a list of complaints and hinted at mutiny if they were not fulfilled; later the same year eighty Pennsylvania soldiers marched from Lancaster to Philadelphia and barricaded the Continental Congress in the State House while demanding redress of their grievances.(77) The apprehension that these actions caused led Congress to reduce the federal army to fewer than one hundred men. However, because of the need to defend the large Northwest section of the country and to garrison the various forts in Indian territory, the army was increased to approximately seven hundred men in 1785. When Shays' Rebellion broke out in 1786 in western Massachuset— near the Springfield arsenal where the bulk of the Continental military stores were located— the army was increased to two thousand men. But the Massachusetts militia, and not the federal army, finally dispersed the rebels. To George Washington, Secretary of War Henry Knox, and others, the uprising demonstrated that the Confederation had become so feeble that it was unable to defend even its forts and arsenals.(78)

The danger of popular uprisings such as Shays' Rebellion was one of the contributing factors leading to the call for the Constitutional Convention in the spring of 1787. But, while the weakness of the federal authorities during the Revolution and Shays' Rebellion disturbed many of the political leaders, the did not lose their well-established distrust of centralized government in general and of standing armies in particular.(79) The attempt by king and parliament to rule from across the seas through a professional army was not to be duplicated in the United States. Again and again during this period the people expressed their fear of too strong a central authority;(80) the constant refrain that "the purse and the sword" were not to be part in the same Hands meant that the power to tax and spend the public moneys and an unlimited power to control the military should not be combined. In general, it was felt that a new balance should be created, giving the federal authorities some power to raise money, to establish a uniform currency, and to exercise direct command over a small military force required for essential tasks. But under no circumstances did the people wish to invest a new centralized government, over which they had little control, with the power to build up a standing army like the one that had been the instrument of oppression before 1775.

The Philadelphia Convention commenced its proceedings on May 28, 1787. The presentation of credentials, election of a chairman and adoption of rules took place on the first and part of the second day; the main business of the Convention began on May 29th a speech by Edmund Randolph, Governor of Virginia and leader of the largest and most prestigious delegation. In his lengthy discourse, he enumerated the defects of the Articles of Confederating and commented upon the troubles then facing the separate states, including Shays' Rebellion in Massachusetts, the "havoc of paper money," violated treaties, and commercial discord. He then introduced a fifteen-point plan for a new federal government which could correct these shortcomings.(81) The Randolph or Virginia Plan became the basis for discussing changes in the Confederation and sacred as the skeleton of the new Constitution. Randolph must therefore be considered one of the chief architects of the Constitutional.

The very first defect of the government under the Articles of Confederation, according to Randolph, stemmed from its inability to defend itself against foreign invasion. As Madison reported his remarks, Randolph said the following:

He then proceeded to enumerate the defects: l. that the confederation procured no security against foreign invasion; congress not being permitted to prevent a war not to support it by their own authority— Of this he cited many examples; most of which tended to shew . . . that particular states might by their conduct provoke war without control; and that neither militia nor draughts being fit for defence on such occasions, enlistments only could be successfu1, and these could not be executed without money.(82)

What reason to expect that the treasury will be better filled in the future, or that money can be obtained under the present powers of Congress to support a war. Volunteers not to be included on for such a purpose. Militia difficult to be collected and almost impossible to be kept in the field. Draughts stretch the strings of government too violently to be adopted. Nothing short of a regular military force will answer the end of war, and this only to be created and supported by money.(84)

The debates in the Convention, and those that took place afterwards in the states, centered on the desirability of his fourth alternative, on "enlistments" which alone "could be successful."(85) The question to which the political leaders addressed themselves was whether federal officials should have the funds and authority to pay for a professional volunteer army and had the right to control such a force.

Since the states had made every effort to retain command over their militia even when the troops were fighting under the Continental aegis, it was important to Randolf and other federalists that direct control of a central army be in the hands of the new government. And, because the states had proved so reluctant to meet their quotas during the Revolution, it was important that the central authorities be free to enlist their forces directly from the people rather than being required to act through the states. But the delegates realized that they tread on dangerous ground by suggesting the formation of such a force in peacetime. What could be "worse to a people who have tasted the sweets of liberty" than a standing army? However, the idea of a direct draft of citizens into the national military was rejected on the very first day of the Convention as a matter too impossible to consider. No one— not the staunchest Federalist in the hall— was prepared to go that far.

Following discussion of the various elements of the Randolph Plan, which contained no specific military clause, attention focused on the alternative scheme introduced by William Paterson of New Jersey. It proposed that the executive "direct all military operations; provided that none of the persons composing the federal Executive shall on any occasion take command of any troops, so as personally to conduct any enterprise as General or in any other capacity."(86) The Committee of Detail, assigned to prepare the actual words of the new Constitution, in its fourth working draft of late July, suggested that the new government be empowered to "make war," "raise armies," and "equip Fleets."(87) For unknown reasons, the seventh draft recommended that "the Legislature of U.S. shall have the exclusive power— of raising a military land force— of equipping a Navy";(88) but the ninth draft returned to the original phraseology, "to make war; to raise armies, to build and equip Fleets." Shortly thereafter the Convention accepted a motion to change "raise armies" to "raise and support armies" and "build and equip" a navy to "provide and maintain."(89)

At this point the Convention encountered its first real difficulties with the Government's power to raise and support armies; the key issue was again the historic fear of standing armies. Madison had already warned:

A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defense agst. Foreign danger, have been always the instruments of tyranny at Home . . . . Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people. It is perhaps questionable, whether the best concerted system of absolute power in Europe cd. maintain itself, in a situation, where no alarms of external danger cd. tame the people to the domestic yoke.(90)

The Convention hedged even the limited power that it granted to buy an army through enlistments by insisting that "no appropriation of money to that use shall be for a longer term than two years."(94) By making the army return to the people— the legislative branch— for funds every two years, the delegates sought to minimize the dangers of tyranny. They considered this method of control more appropriate than a restriction on the number of troops or a ban on any peacetime establishments.(95) Later, George Mason introduced a resolution to preface the militia sections of the Constitution with a clause stating "that the liberties of the people may be better secured against the danger of standing armies in time of peace."(96) The motion was seconded by Randolph, and James Madison spoke in favor of it: "It did not restrain Congress from establishing a military force in time of peace if found necessary; and as armies in time of peace are allowed on all hands to be an evil, it is well to discountenance them by the Constitution, as far as will consist with the essential power of the Govt. on that head."(97) The motion, however, did not pass.

In summary, article I, clause 12 gave Congress a power it lacked articles the Confederation— the unlimited authority to use federal funds to enlist an army. The power was granted because, as Randolph had observed, the militias were "difficult to be collected and . . . kept in the field" and because no other alternative seemed feasible. But the historic fears of a standing army led the delegates to limit the power at what they considered its source— by restricting the funds available to maintain an army. Clause 12 answered the concern of those who wished the new government to have some authority to keep up some kind of independent military force which would be used for specific national purposes. But it was hardly a blank check for the government to use all authority to raise any forces it desired in any manner it chose. Certainly it did not grant the power to draft; even the Federalists delivered that such authority would "stretch the strings of government too violently to be adopted." The manner in which the militias were organized confirms the idea that the body of state militias consisting of the citizens at large, and not a national professional standing army, was intended to be the main military force of the United States. When Randolph introduced the original Virginia Plan, he suggested that "the national legislature" should have authority "to call forth the force of the Union agst. any member of the Union failing to fulfill its duty under the articles thereof:"(98) The issue was proposed three times with one change: "the federal executive," said the advocates of this modification, "shall be authorized to call forth ye power of the Confederated States, or so much thereof as may be necessary to enforce and compel an obedience to such Acts, or an observance of such Treaties" that were passed by Congress.(99)

The Convention was caught between two conflicting imperatives. On the one hand, they did not want the national authorities to coerce citizens with a standing army; on the other hand, if the only alternative power, the militia, were used as the primary arm of the United States, would it not then become a mere tool of the federal government? Hamilton, indeed, had thought it desirable for "the Militia of all the States to be under the sole and exclusive direction of the United States."(100) But this idea, never formally submitted, was hardly acceptable. The states would not give up complete control over their own forces. The solution came in one of the many compromises made during the Convention. The Committee of Detail in reporting the third draft of the Constitution provided that no state shall keep a naval or land force, "Militia excepted to be disciplined, etc. according; to the Regulations of the U.S."(101) This language was elaborated by James Wilson, who proposed a clause stating that the Legislature of the United States "shall possess the exclusive right of stabilizing the Government and Discipline of the Militia— and of ordering the Militia of any State to any Place within U.S."(102) By the time that the ninth draft was completed, the clause provided that Congress would have the power "to [make Laws for] call[ing] forth the Aid of the Militia, in order to execute the Laws of the Union, [to] enforce Treaties, [to] suppress Insurrections, and repel invasions."(103) With the deletion of the reference to treaties,(104) this became clause 15 article I, section 8 of the Constitution.

In the debate on the militia power, the delegates were quite concerned that there should be national uniformity in the regulation of the militia.(105) The matter was debated on August 18, 1787, with Oliver Ellsworth insisting that the whole authority of the militia should not be taken away from the states. Roger Sherman, John Dickinson, and George Mason attempted to work out a compromise allowing the government to exercise control over a certain portion of the Militia, one fourth to one tenth. Madison advocated national control, arguing: "If the States would trust the Genl. Govt. with a power over the public treasure, they would from the same consideration of necessity grant it the direction of the public force."106) Moreover, Madison asserted, only the federal government had a full view of the general situation and could mobilize and marshal the necessary forces to meet any contingency General C. C. Pinckney, on the basis of his military experience, had very "scanty faith in Militia. There must be also a real military force...The United States had been making an experiment without it, and we see the consequence in their rapid approaches toward anarchy," a reference to Shay's Rebellion in Massachusetts the prior year.(107) Roger Sherman, however, insisted that the states would need their own militia for defense against invasion and insurrection and for enforcing obedience to their own laws. The matter was referred to a select committee at that point>

The debate on the matter was resumed on August 23, 1787. The select committee had proposed that Congress be given the power "to make laws for organizing, arming, disciplining the Militia, and for governing such parts of them as may be employed in the service of the US reserving to the States respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed."(108) Once Again Elbridge Gerry attached the whole notion of giving the central government power over the militia.(109) while Madison insisted that uniformity was necessary because the states neglected their militia. "The Discipline of the Militia is evidently a National concern," Madison said, "and ought to be provided for in the National Constitution."(110) The convention passed the proposal by a vote of nine to two, agreeing to a provision which allowed Congress "[t]o make laws for organizing arming & disciplining the Militia, and for government such part of them as may be employed in the service of the US."(111) During the debate on the question whether the states should be free to appoint officers of the militia, Madison observed:

As the greatest danger is that of disunion of the States, it is necessary to guard agst. It by sufficient powers to the Common Govt. And as the greatest danger to liberty is from large standing armies, it is best to prevent them by an effectual provision for a good Militia.(112)

The debate over the organization of the militia again points out how unthinkable it was to the framers that the central government could have any direct power to draft individual citizens into the general army. Only with the greatest reluctance did the delegates allow the central government to call the militia into service for specific purposes. The reason was obvious— a tyrannical central government with a large army would be able to destroy the hard-won liberties of the people. On the other hand, some central control was necessary to mobilize the militia for defense purposes and to compel obedience to the laws. But all the restrictions which the Convention imposed on this power, the fact that the states would be able to appoint the officers and train the militia, and the fact that the general government could control the militia only for the purpose of executing the laws of the Union, suppressing insurrections, and repelling invasions indicate that the framers were quite concerned about the danger of the central government using its military forces to suppress the freedoms of the people.

After circumscribing the central government's power to draw the militia into federal service with such careful restrictions, the delegates could not possible have allowed the federal government to exercise direct control over the citizens by permitting a draft into the regular army. The matter was so impossible to imagine, given the circumstances and ideological climate of the times, that no voice was raised against it. The only mention of the draft at the Convention was Edmund Randolph, a leading Federalist figure and proponent of the Constitution, who denied that the new government should have that power. It is inconceivable that staunch Antifederalists like Elbridge Gerry, who strongly opposed the creating of an standing army, would not have raised the loudest protest about any general power to draft by the federal government if they had thought that it was contained within the general rant of authority "to raise and support armies." All that was given by the grant, therefore, was the power to organized and enlist a federal, professional army which— the delegates thought— would consist of a limited number of garrison troops. That power was given grudgingly, only in the light of the severe hardship Congress had experienced through the Revolution in depending solely on the states for manpower and military supplies. But the door was opened for that limited purpose only.

Differences in the language of the Constitution support this interpretation. When the word "armies" is used in article I, section 8, it does not encompass any organized body of the military; rather, it refers to an "army" in eighteenth century usage, a force far different from the "militia." The former existed as a highly specialized instrument of the central government, a body of trained and disciplined troops whose purpose was to protect the central government and execute its policies. The militia, on the other hand, was a quite different sort of military establishment, comprehending the whole mass of citizen-soldiers. Its principal function was to safeguard free men against foreign and domestic enemies— not the least of which was government itself. The idea that citizens have an obligation to bear arms for a national authority, and work against their own most profound interests, never occurred to the framers; it would have been a contradiction to their entire political heritage, manifestly inconsistent with their sense of the delicate balance between liberty and power, between the appetite for oppression and the instinct for resistence. If the citizen had any military obligation, it was to his local militia, where he and his compatriots might have to meet the advance of standing armies in the employ of even their own government.

These garrisons must either be furnished by occasional detachments from the militia, or by permanent corps in the pay of the government. The first is impracticable; and if practicable, would be pernicious. The militia would not long, if at all, submit to be dragged from their occupations and families to perform that most disagreeable duty in times of profound peace. And if they could be prevailed upon, or compelled o do it, the increased expense of a frequent rotation of service and loss of labor, and disconcertion of the industrious pursuits of individual, would form conclusive objections to the scheme. It would be as burthensome and injurious to the public, as ruinous to private citizens. The later resource of permanent corps in the pay of government amounts to a standing army in time of peace; a small one, indeed, but not the less real for being small.(116)

Thus Hamilton believed that the citizens at large would be enrolled in the militia while the regular army would consist of professional enlisted for long periods. His statement is incompatible with any notion that the citizens could be taken directly into the regular army by a draft, "dragged from their occupations and families" in a "frequent rotation of service" to perform "disagreeable duty" in Indian territory.

As the preceding quotation indicates, Hamilton distinguished often between the citizens at large and the regular army. He noted that the art of war had progressed to the point at which specialization was necessary,(117) and that the people no longer wished to devote themselves to the military arts:

The industrious habits of the people of the present day, absorbed in the pursuits of gain, and devoted to the improvements of agriculture and commerce are incompatible with the condition of a nation of soldiers, which was the true condition of the people of those [Greek] republics. The means of revenue, which have been so greatly multiplied by the encrease of gold and silver, an of the arts of industry, and the science of finance, which is the offspring of modern times, ...have produced an intire revolution in the system of war, and have rendered discipline armies, distinct from the body of the citizens, the inseparable companion of frequent hostility.(118)

Hamilton returned to this point in The Federalist No. 29, in which he again argued that a strong militia was the best protection against the dangers of a standing army.(120) Madison concurred in The Federalist No. 46:

Let a regular army, fully equal to the resources of the country be formed; and let it be entirely at the devotion of the Federal Government; still it would not be going too far to say, that the State Governments with the people on their side would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield in the United States an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possession their affections and confidence. It may well be doubted whether a militia thus circumstanced could every be conquered by such a proportion of regular troops.(121)

To both Hamilton and Madison, the problem of raising an army was simply a matter of raising the revenue to support the army, just as Randolph stated on the first day of the Philadelphia convention.(122) Since the Confederation lacked such a power, both men wanted to be sure that the new government would have independent means of securing funds for defense and would be given the authority to gather and support is own forces; but clearly nothing more was supposed to be granted by the Constitution. It is true that Hamilton was anxious to insure that the various limitations on the military power which existed under the Confederation or were suggested at the Convention would not be imposed, and at one point he used rather sweeping language to argue that position:

The authorities essential to the care of the common defence was these— to raise armies— to build and equip fleets— to prescribe rules for the government of both— to direct their operations— to provide for their support. These powers ought to exist without limitation: Because it is impossible to foresee or to define the extent and variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils, which are appointed to preside over the common defence.(123)

These remarks are often cited to show the broad reach of the war power, and to support the assertion that this power necessarily includes the ability to conscript. However, those who rely on this language seldom note that Hamilton explains his meaning in the same paper. Two paragraphs after the quoted passage he states that "unless it can be shewn, that the circumstances which may affect the public safety are reducible within certain determinate limits" there should be "no limitation of that authority, which is to provide for the defence and protection of the community, in any manner essential to its efficacy; that is in any matter essential to the formation, direction or support of the NATIONAL FORCES."(124) In other words, Hamilton is simply declaring that any traditional or accepted way of forming a professional army (in terms of the number or manner of enlisting men) or directing it (through any command structure decided by the authorities) or supporting it (by any system of pay scales deemed desirable) must be allowed. His statements can be understood only as a response to the various restrictions on a federal army, or a short-term period of enlistment of professional soldiers. These were the limitations that he wished to avoid and his expansive language was offered to country these attacks on the military power. Since even the most violent Antifederalist never claimed that the new government would have the power to conscript,(125) his statements were not directed to that problem in any way.

The interpretation is confirmed still later in The Federalist No. 23. In denigrating the old revolutionary military system. Hamilton argues:

We must discard the fallacious scheme of quotas and requisitions as ... impracticable and unjust. The results from all this is, that the Union ought to be invested with full power to levy troops; to build and equip fleets, and to raise the revenues, which will be required for the formation and support of an army and navy, in the customary and ordinary modes practiced in other governments.(126)

In summary, The Federalist Papers must be interpreted in terms of the Confederation's inability to control the military and the Antifederalist arguments which Hamilton and Madison sought to counter. The broad language in The Federalist Papers met both of these problems. They were answers to specific questions raised at the time about the proper organization of the armed forces. Bu both men make clear in their remarks about the function and composition of the professional army that it would no be composed of the citizens at large.

The argument in the various state ratifying conventions also reflect strong popular sentiment against a standing army of any kind. Not only those attacking the Constitution but also some of its most forceful defenders repeated the maxim that a standing army was a potential instrument of tyranny although it was necessary to defend the nation against hostile invaders.(128) The grudging support which the military clauses received from those who must be regarded as its principal defenders is a good indication that everyone expected the standing army to be a small professional volunteer army and as Hamilton indicated, a mere holding force until the militia could be mobilized. Further evidence that none of the founders thought power had been granted to conscript into a federal armies the fact that even the most vociferous Antifederalists never raised this spectre in attaching the new Constitution.(129) They objected to the federal government's power to enforce its laws directly on the citizens of the states, to levy taxes upon them, or to have federal courts exercise jurisdiction over them, and they undoubtedly would have made reference to the power to conscript if they had had any idea that such a grant of authority was written into the new instrument. The absence of any claims in this area is strong evidence that the power was not present, since the Antifederalists drew on every conceivable source, particularly when the military classes were in issue, to undermine ratification.

Indeed, many of the arguments which the Antifederalists asserted against the new Constitution, and many of the amendments which were recommended to correct alleged defects, were premised on the implicit assumption that the power to draft did not exist. For example, the delegates in a number of state conventions, proposed that the Constitution be amended to limit the term of enlistments for all members of the federal army.(130) If they thought that the federal government could conscript directly, they would surely have included a limit on the conscription term as well. In another state some delegates wished to include a conscientious objector clause in the Constitution. But they mentioned this problem not in connection with the power to raise a federal army but only in discussing the militia clauses (131)— a clear indication of the belief that compulsory service was possible only in the state militias. An examination of this pattern in the various state conventions confirms the universality of these sentiments.

Perhaps the most articulate attack upon the new Constitution was made by Luther Martin, one of Maryland's delegates to the Constitutional Convention. He delivered an address entitled "The Genuine Information" to the Maryland legislature on November 29, 1787, describing the proceedings in Philadelphia. His report, which ran for approximately forty printed pages in Elliot's Debates, was the most detailed Antifederalists challenge to the new Constitution. When he addressed himself to the section of the Constitution dealing with Congress' power to raise army, Martin had the following comments:

[T]he Congress have also a power given them to raise and support armies, without any limitation as to numbers and without any restrictions in time of peace. Thus, sir, this plan of government, instead of guarding against a standing army,— that engine of arbitrary power, which has so often and so successfully been used for subversion of freedom,— has, in its formation, given it an express and constitutional sanction, and hath provided for its introduction. Nor could this be prevented. I took the sense of the Convention on a proposition, by which the Congress should not have power, in time of peace, to keep imbodied more than a certain number of regular troops, that number to the ascertained by what should be considered a respectable peace establishment. This proposition was rejected by a majority, it being their determination that the power of Congress to keep up a standing army, even in peace, should only be restrained by their will and pleasure.(132)

A standing army in the hands of a government placed so independent of the people, may be made a fatal instrument to overturn the public liberties; it may be employed to enforce the collection of the most oppressive taxes, and to carry into execution the most arbitrary measures. An ambitions man who may have the army at his devotion, may step up into the throne, and seize upon absolute power.(135)

In the New York ratifying convention several amendments were proposed which indicate the kind of army that contemporary statesmen thought would be organized by the federal government. John Lansing recommended the adoption of a clause which provided "that no standing army, or regular troops, shall be raised, or kept up, in time of peace, without the consent of two thirds of the members of both houses present."(139) Alexander Hamilton also proposed an amendment that was substantially similar.(140) An amended version of Lansing's proposal was eventually adopted by the New York convetion,(141) and, in the preamble to the ratifying document, the delegates proclaimed:

[T]hat a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural and safe defence of a free trade.
...
That standing armies, in time of peace, are dangerous to liberty, and ought not to be kept up, except in case of necessity...(142)

As these comments demonstrate, the leaders who ratified the Constitution believed that the militia— the armed body of all the citizens— was the prime source of the nation's defense, and that only a small professional army with limited functions could be created by the federal government. This contrast between a standing army and "the people" was often quite explicit in the debates of the Virginia convention,(144) which were recorded more extensively than those of any other state. James Madison made a particularly forceful assertion of this distinction in defending he federal government's power to call out the militia:

If resistence should be made to the execution of the laws...it ought to be overcome. This could be done only in two ways— either by regular forces or by the people...If insurrections should arise, or invasion should take place, the people ought unquestionably to be employed, to suppress and repel them, rather than a standing army.(145)

Another indication that the Constitution did not purport to give the federal government the power of conscription can be found in the frequent comparisons made in state ratifying conventions between the new military system and the one established under the Articles of Confederation. In response to the Antifederalists' apprehension about standing armies, supporters of the Constitution argued that the military clauses were merely a recognition of the practices of the former government; thus, Chancellor Robert R. Livingston(147) of New York, James Wilson(148) and Thomas McKean(149) of Pennsylvania, and Alexander Hamilton(150) all asserted that the power to control the purse and the sword which was granted by the new instrument was essentially the same as that existing in the Confederation. That is, many defenders of the Constitution feel that the answer to the problem of national defense lay in the explicit grant of power to raise money for enlisting an army, and not in any system to radical as direct conscription into the federal force. This distinction is particularly clear in James Wilson's discussion of Shays' Rebellion:

It may be frequently necessary to keep up standing armies in time of peace. The present Congress have experienced the necessity, and seven hundred troops are just as much a standing army as seventy thousand...The may go further, and raise an army, without communicating to the public the purpose for which it si raised. On a particular occasion they did this. When the commotion existed in Massachusetts, they gave orders for enlisting an additional body of two thousand men.(151)

The possibility that citizens could be tried by courts-martial was of central concern to many statesmen of the time who thought that trial by jury was the individual's greatest safeguard against tyranny. Luther Martin, the Maryland Antifederalist, expressed considerable concern over this problem, but he mentioned it only with respect to the militia clause, and not in connection with the provision for the federal armies:

It was thought that not more than a certain part of the militia of any one state ought to be obliged to march out of the same...at any one time, without the consent of the legislature of such state. This amendment I endeavored to obtain; but...it was not adopted. As it now stands, the Congress will have the power, if they please, to march the whole militia of Maryland to the remotest part of the Union, and to keep them in service as long as they think proper, without being in any respect dependent upon the government of Maryland for this unlimitd exercise of power over its citizens— all of whom, from the lowest to the greatest, may, during such service, be subjected to military law, and tried up and whipped ...like the meanest of slaves.(155)

It is apparent that the members of the Maryland convention shared Martin's assumption, for they proposed an amendment providing "That the militia shall not be subjected to martial law, except in time of war, invasion or rebellion."(156) According to the Amending Committee:

This provision to restrain the powers of Congress over the militia, although by no means so ample as that provided by the Magna Carta and the other great fundamental and Constitutional laws of Great Britain...yet it may prove an inestimable check; for all provisions in favor of the rights of men would be vain and nugatory, if the power of subjecting all men, able to bear arms, to martial law at any moment should remain vested in Congress.(157)

In addition to the amendment concerning military jurisdiction, the Maryland convention proposed several other limitations on the military power. Two of these amendments provided that soldiers could continue in force longer than two years; a third stipulated that "no soldier be enlisted for a longer time than four years, except in time of war, and then only during the war."(159) Amendments which were virtually identical to the latter provision were also introduced in North Carolina(160) and Virginia.(161)

According to the proponents of the Maryland amendments, the three limitations on the federal government were necessary because "[t]hese were the only checks that could be obtained against the natural enemies of freedom."(162) But surely the amendment limiting terms of enlistment would be a failure in achieving this objective if the federal government had the power to conscript citizens for unlimited periods of time. Again, the conclusion seems inescapable that the delegates who proposed these limitations on the central government's military powers never imagined that the new Constitution granted Congress the greater power of direct conscription.

Since many Pennsylvania citizens were Quakers who opposed military service in any form, that state's convention was forced to deal with the problem of conscientious objection only in the context of the federal governments's control over the militia, and not in relation to Congress' power to raise and support armies.(163) The minority report issued by the Pennsylvania Antifederalists was also quite explicit in condemning the incursions on individual liberty that were possible under the militia clause:

The absolute unqualified command that Congress have over the militia may be made instrumental to the destruction of all liberty...

First, the personal liberty of every man, probably from sixteen to sixty years of age, may be destroyed by the power Congress have in organizing and governing of the militia.(164)

Secondly, the rights of conscience may be violated, as there is no exemption of those persons who are conscientiously scrupulous of bearing arms. These compose a respectable proportion of the community in the state...

[During the Revolution] the framers of our State Constitution made the most express and decided declaration and stipulations in favor of the rights of conscience; but now, when no necessity exists, those dearest rights of men are left insecure.(165)

The contemporary identification of the "power of the purse and the power of the sword" served to focus the attention of many state delegates upon the government's financial ability to support an army, and those who believe in the need for a strong system of national defense often asserted that Congress should be able to raise substantial sums of money quickly in the event of invasion or other emergency.(166) As a corollary to this proposition, however, proponents of a strong central government believed that Congress would need financial power in order to buy an army through enlistments. Thus, James Wilson of Pennsylvania asked rhetorically:

Have not the frees of governments those powers [of the sword and the purse]? And are they not in the fullest exercise of them?...Can we create a government without the power to act? How can it act without the assistance of men? And how are men to be procured without being paid for their services?(167)

Some delegates also were apprehensive about the impact that compulsory militia service would have upon the civilian economy. Since the vast majority of citizens were farmers by occupation, a call of the militia during the planting or harvesting season could cause great hardship. Thus, Edmund Randolph, (170) Henry Lee,(171) and Francis Corbin supported a professional army that would promote a more appropriate division of labor. Corbin argued to the Virginia convention:

If some of the community are exclusively inured to its defence, and the rest attend to agriculture, the consequence will be, that the arts of war and defence, and of cultivating the soil, will be understood....If, on the contrary, our defence be solely intrusted to militia, ignorance of arms and negligence of farming will ensue....If we are called in the time of sowing seed, or of harvest, the means of subsistence might be lost; and the loss of one year's crop might have been prevented by a trivial expense, if appropriated to the purpose of supporting a part of the community, exclusively occupied in the defence of the whole.(172)

The actions of the first Congresses elected under the Constitution, which included many of the delegates to the Philadelphia Convention, support the view that conscription was not authroized by the Constitution. One of the most important items of business confronting the first Congress was, of course, the promulgation of the Bill of Rights, and, in June in 1789, James Madison introduced a serious of proposed amendments to the Constitution. One of these, which eventually became the second amendment, stated:

The right of the people to keep and bear arms shall not be infringed; a well-regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.(175)

Opponents of Madison's conscientious-objector clause argued that the problem was too difficult and uncertain to be dealt with by an inflexible constitutional provision,(176) and the clause was finally eliminated in September 1789 by the Senate.(177) However, the second amendment that was finally adopted emphasized once again the sharp distinction that was made between the militia and the regular army at the time the Constitution was adopted. The amendment's assertions that the militia was "necessary to the security of a free state" and that "the right of the people to keep and bear arms shall not be infringed" can be traced to the Virginia ratifying convention. There, George Mason had argued that the federal government might "neglect" or "harass and abuse" the militia "in order to have the pretense of establishing a standing army."(178) Patrick Henry had agreed; in his opinion, the "militia ...is our ultimate safety. We can have no security without it."(179) Thus, the people organized in the state militias were regarded as a counterforce against the threat that the regular army could be used as an instrument of oppression,(180) and service in the militia was a right of the citizen that could not be transgressed by the federal government.(181) Clearly, this balance of power could be upset, and the citizens's right to bear arms in the militia undermined, if the federal government had the power to compel large numbers of citizens to serve in the regular army.

Congress moved quickly to implement the military sections of the Constitution. At the instigation of Secretary of War Knox, a statute was passed in September of 1789 legalizing the existence of the 840-man army inherited from the Confederation;(182) about six months later the authorized force was increased to over a thousand men.(183) The statutes clearly relate only with enlisted forces, but in spite of this fact, there was substantial opposition in congress to the creation of a standing army.(184)

The size of the regular army was increased twice more during the next two years,(185) and in May of 1792 Congress passed a uniform militia law.(186) The latter provision had developed from a plan proposed by Secretary of War Knox in 1790 which would have obliged every male citizen to enroll and train for specific periods in a federally organized militia system. A select part of the militia— the "advanced corps" of younger men— would be extensively trained and ready for service on short notice. Congressional opposition to the proposal proved insurmountable,(187) and, after two years of consideration, Congress passed a law which required enrollment but did not specify any particular duration or type of training for the militia; these matters were left entirely to the states. Perhaps the most significant aspect of the episode is the fact that Knox, the foremost advocate of the strong military system, sought to establish compulsory universal military training not under the Constitutional grant of power to raise and support armies, but under the militia clause.

The early debates on the military also reflect a perception by many congressmen that their control over the militia was secondary to the states' regulatory power. This, one representative asserted that "the States alone are to say of what description of persons the militia shall consist, and who shall be exempt from militia duty; Congress have only power to organize them, when thus designated."(188)

Questions about the proper size and composition of the military establishment were before Congress frequently during the early years of the republic particularly with regard to the kind of force that should be used to fight the Indians. Those who advocated the use of regular troops emphasized the adverse impact on agriculture that would result from use of the militia,(189) or the unreliability of poorly trained militiamen;(190) others contended that the regular troops were "trash" who "enlist for three dollars a month; which, in a country like the United States, is a sufficient description of their bodies as well as their minds."(191) When the Whiskey Rebellion erupted in 1794, it was the militia that was summoned to suppress it; Washington called out 12,000 militiamen from four states, and maintained a peacekeeping force of 2,500 in the area after order was restored.(192) Early Congresses also depended heavily on militia groups entering the federal service of their own choice. These volunteer units had a long tradition dating from the colonial period; frequently they furnished their own arms and elaborated uniforms, and were composed of social elites.(193) In 1794(194) and 1798,(195) Congress authorized the President to accept volunteer militia units, but the statues maintained a distinction between these groups and the troops obtained by regular enlistments.

Thus, in the first ten years of the nation Congress evidenced its understanding of the military powers granted in the Constitution by: (1) debating a constitutional amendment on conscientious objection which focused on the militia as the only compulsory military force; (2) passing the second amendment, which was totally incompatible with any notion of federal conscription; (3) grudgingly increasing the size of its regular, enlisted army; (4) passing a tepid militia law because it did not wish to compel the citizens to train in the militia; and (5) distinguishing between the "trash" of the regular army and the industrious yeoman of the militia. At no time during this period— not even during the quasi-war with France in 1797-1800— was there the slightest hint that Congress might have the power to enforce direct conscription.

In the Selective Draft law Cases, the Supreme Court places considerable reliance on the relationship between the militia and the regular forces. The Court opened this phase of its argument by citing the portion of article I, section 10 which prohibits the states from keeping "Troops, or ships of War in time of Peace" without the consent of congress. This provision, together with the difficulties experienced by the Continental Congress in trying to get the states to meet their troop quotas and the grant of power to raise armies, led the Court to infer that the framers had intended to vest all the military powers in Congress.(196) Therefore, Chief Justice White concluded, "[t]here was left...under the sway of the States undelegated the control of the militia to extend that such control was not taken away by the exercise by Congress of its power to raise armies."(197)

It is undoubtedly true that the military clauses of the Constitution were designed in part to remedy the central government's lack of power under the Articles of Confederation; Alexander Hamilton's belief that a permanent military corps was needed to perform duties for which the militia was inappropriate(198) and his argument that sole reliance on the states for national defense could lead to unequal burdens or disastrous rivalries(199) clearly weighed heavily with those who assisted in drafting the Constitution. But these acknowledged facts hardly support the conclusion that Congress' power to raise and support armies extended to all attributes of state militia power, including the authority to conscript. Rather, the available historical evidence indicates that the Supreme Court in Arver did not pursue the distinction between the militia power and the army power far enough, and that the framers did not view the state militias and the federal army as simply complementary manifestations of the same power.

It is clear that the framers imposed no specific limitations on how the federal government could use its regular forces; in the opinion of some early statesmen, they could even be sent abroad to fight in foreign wars.(200) At the same time, the militia could be used only for the limited purposes enumerated in the Constitution, and the states could not maintain regular forces on duty. This differential treatment of the uses to which the army and the militia could be put provides a marked contrast to the prevailing understanding of how the manpower could be raised for each force. The fact that the states could compel militia service did not mean that Congress would have equivalent power with respect to the army. As the preceding discussion of the Philadelphia Convention, Federalist Papers, and the state ratifying convention indicates, the contemporary understanding was that the regular army would be composed of volunteers who could not legitimately object if they were exposed to the dangers of questionable domestic conflicts or foreign entanglements. Indeed, the fact that various restrictions were imposed upon the use of the militia reflects the framers' belief that the citizens should not be taken into the army against their wills and employed in any military venture that the federal government might undertake. Thus, if the Court in the Selective Draft Law Cases had been more sensitive to the historical context in drawing inferences from the constitutional distinction between the militia and the regular army, it would not have concluded every attribute of one force necessarily attached to the other. Instead, history points to the conclusion that the framers gave the federal government wide powers to use its army but not to gather it, while the militia's functions were specified but its manpower source was unlimited.

The British Government, before the Revolution did attempt to exercise in this country the supposed right of impressment for the Navy, which it never did for the Army...Yet the Government, in their instructions to our Envoys for treating of peace with Great Britain, say "impressment is not an American practice but it is utterly repugnant to our constitution and laws." The honorable Secretary [Monroe] when he drafted those instructions, knew not how soon he should be directed to contend for the contrary doctrine.(207)

Webster then turned his attention to the source of the power to conscript "which now for the first time comes forth...to trample down and destroy the dearest rights of personal liberty..."(211 The Government's claim of constitutional power was summarily dismissed: "I almost disdain to go to quotations and references to prove that such an abominable doctrine has no foundation in the Constitution of the country. It is enough to know that the instrument was intended as the basis of a free government, and that the power contended for is incompatible with any notion of personal liberty."(212) Nor, argued Webster, could the Secretary of War justify his plan by saying that Congress could raise armies by any means not prohibited by the Constitution, and that "the power to raise would be granted in vain" if there were insufficient enlistments. "If this reasoning could prove anything," Webster retorted, "it would equally show, that whenever the legitimate power of the Constitution should be so badly administered as to cease to answer th great ends intended by them, such new powers may be assumed or usurped, as any existing administration may deem expedient."(213)

This strong opposition made passage of the Monroe Plan a practical impossibility. John C. Calhoun, then a young representative from South Carolina, summarized the alternatives that were available to the federal government: "[T]he military force by which we can operate consists of ...the regular force, whose general character is mercenary, the soldiers enlisting for the sake of bounty and subsistence; draughted militia called into the field by patriotic motives only."(214) Congress eventually settled upon a plan under which volunteer militia units could enlist for specific short periods; if they engaged to serve for more than nine months, the volunteers could receive acreage from the public lands instead of monthly pay.(215) The threat of a system of federal conscription, however, had repercussions even outside the Congress, In January of 1815, representatives of various New England states that were opposed to the war met at the Hartford Convention. One of the resolutions which they passed recommended that the states "adopt all such measures as maybe necessary effectually to protect the citizens of said states" against acts of congress "which shall contain provision, subjecting the militia or other citizens to forcible drafts, conscriptions, or impressments, not authorized by the 'constitution of the United States.'"(216) Thus, a substantial group of influential political leaders, withing three decades after the Constitution was ratified, vigorously asserted that the federal government did not have the power of direct conscription; yet the Arver Court, in a single sentence, dismissed their arguments as irrelevant.

A final major point relied upon the Supreme Court in the Selective Draft Law Cases was the use of direct conscription during the Civil War. Chief Justice White noted that early in the war the Union government relied upon militia and volunteers' when more men were required, however, a draft law was proposed and passed.(217) There is some doubt as to whether the true purpose of the Civil War Enrollment Act was to procure men through the conscription; it seems equally possible that, as one historian has asserted, the measure was designed merely to stimulate enlistment in the regular army.(218) In any event, it is clear that even during the exigencies of the Civil War, a large segment of the populace actively opposed the draft.

The act was quite lenient by today's standards; for example, a drafted man could hire a substituted to perform his service for him, or could purchase outright commutation from the draft.(219) Nevertheless, popular sentiment against conscription was so strong that protest riots occurred in many cities throughout the country. The largest disturbance, which took place in New York City, resulted in an estimated 1,200 deaths and millions of dollars in property damage. Fifteen regiments of regular troops were eventually required before the pillaging mobs could be subdued. A recent commentator has suggested several reasons for this violent reaction to the draft:

There was something deeply disturbing about a national military draft at best. It was not unheard of for states to raise their army quotas by various forms of compulsion, true. But a state government in the 1860s exerted a neighborly, close-to-home sort of authority. Or at least it seemed so to most people. Washington was different— distant and unfeeling, somehow alien. And for the average citizen, this new Act was the first effort the Federal government had ever made to reach out its long arm and lay its heavy hand directly on his— his!— shoulders.(220)

Fraudulent exemptions were another popular means of evasion, and approximately 316,000 exemptions were made under the conscription law. When firemen became exempt, some towns enrolled all of their able-bodied men into the fire brigade; in 1864 Congress had to pass special legislation to meet such wholesale attempts to avoid service.(222) Malingering of practically every variety occurred, even to the point that some men maimed themselves in order to fail the physical requirement for the army. The combination of evasion, exemptions, commutations, and armed resistance showed that a substantial portion of the nation was not prepared to accept conscription as a part of the citizen's obligation to the state. As the end of the war approached, Congress began to respond to this general opposition; in March of 1865, a law providing for more liberal substitution was passed, (223) and the following month the draft law was allowed to expire.

This history of inefficiency and evasion seems to cast doubt on the Arver Court's assertion that "[i]t would be childish to deny the value of the added strength which was ... afforded"(224) by the Civil War draft. The court based this conclusion on the "the official report of the Provost Marshall General," which claimed that "it was the efficient aid resulting from the forces creatd by the draft ... which obviated a disaster ... and carried that struggle to a complete and successful conclusion."(225) The available statistics, however, cast considerable doubt on this assertion:

Altogether, only six per cent of the 2,666,999 men who served in the Union Army during the Civil War were secured directly through conscription. Of 249,259 persons "held to service" under the Enrollment Act of 1863, 86,724 escaped by payment of commutation, leaving 168,649 "men raised." But of the latter, 116,188 were substitutes, and only 46,347 were "held to personal service."(226)

The militia is therefore to be composed of Citizens of the States, who retain all their rights and privileges as citizens who when called into service by the United States are not to be "fused into one body"— nor confounded with the Army of the United States, but are to be called out as the militia of the several states ... and consequently commanded by the officers appointed by the State. It is only in that form or organization that they are recognized in the Constitution as a military force.(228)

There is no longer any militia— it is absorbed in the Army. Every able bodied Citizen...belongs to the national forces— that is to the Army of the United States....

The Generals, Colonels and other Officers appointed by the State according to the provisions of the Constitution are reduced to the ranks, and compelled to march as private soldiers...and they and every other able bodied citizens except those who it has been the pleasure of Congress to exempt, are compelled against their will to subject themselves to military law... and to be treated as deserters if they refused to surrender their civil rights.(230)

Chief Justice Taney also relied upon history to support his construction of the military clauses. "During the period when the United States were English Colonies," he observed, "the Army of England— the standing army— was always raised by voluntary enlistments— and the right to coerce all the able bodied subjects of the Crown into the ranks of the Army...was not claimed or exercised by the English government."(233) Against this historical background, Taney concluded, the words granting Congerss the power to raise armies "necessarily implied that they were to be raised in the usual manner," Indeed, he added. "The general goverment has always heretofore so understood [the words] and has uniformly...recruited the ranks of its 'land forces' by volunteer enlistments for a special period."(234)

Chief Justice Taney never had the opportunity to perfect or deliver his opinion because the Government never brought a draft case to the Supreme Court. However, the constitutionality of the Civil War draft was questioned in the courts of Pennsylvania and ultimately was upheld in Kneedler v. Lane.(235) The Kneedler case on which the Arver case relied,(236) was decided under rather unusual circumstances. It arose when three young men sued the local enrolling board to enjoin the board members from enforcing the law; the United Stated did not defend these actions, and on November 9, 1863, the Pennsylvania Supreme Court announced in a three- to-two decision that the law was unconstitutional.

The first opinion for the majority was written by Chief Justice Walter Lowrie. He found that the Constitution recognized two distinct kinds of land forces, the militia and the army. The militia could be drawn into federal service only in the manner provided by the Constituion; if these forces were subject to paramount federal call, they could be effectively wiped out. Moreover, Lowrie said, the Constitution provides that taxes and duties just be raised according to a rule of "uniformity, equality, or proportion," but no such requirement is imposed by the army clause. If the army "may be recruited by force," he asserted, "we find no regulation or limitation of the exercise of the power, so as to prevent it from being arbitrary and partial, and hence we infer that such a mode of raising armies was not thought of, and was not granted." Lowrie dwelt at length on the dangers of implying such a broad power:

If congress may institute the plan now under consideration, as a necessary and proper mode of exercising its power "to raise and support armies." then it seems to me to follow with more force that it may take a similar mode in the exercise of other powers, and may compel people to lend it their money; take their houses for offices and courts;...their mechanics and workshops for the different branches of business that are needed for army supplies; their physicians, ministers, and women for army surgeons, chaplains, nurses, and cooks...I am quite unable now to suppose that so great a power could have been intended to be granted, and yet to be left so loosely guarded.(237)

The injunctions prayed for were issued on November 9, 1863. However, Chief Justice Lowrie's term expired on December 12, and he was replaced by Daniel Agnew, who was known to favor the draft. The Government then moved to vacate the injunctions. On January 16, 1864, the court vacated the initial orders over a bitter dissent by Judge Woodward, who had just been elevated to the position of chief Justice. The government, he pointed out, had failed to appear in the first hearing even though every opportunity had been given them to present their views; nor had they made any effort to seek reargument while Chief Justice Lowrie was still on the bench. Moreover, he said, the decision granting the injunction was a final judgement which could have been appealed to the United States Supreme Court; in any event, the dissenting judges should have been bound by the initial decision since no new facts had been presented.(240) On this divisive note, the Government obtained a victory in the first case to pass upon the constitutionality of conscription; but the narrow margin of this victory is emphasized by he fact that three of the six Pennsylvania judges who considered the matter held that Congress lacked power to enforce direct conscription.

After the expiration of the Civil War draft, the Government did not attempt to use conscription again until the outbreak of World War I. On April 5, 1917— the day before the Congress declared war on Germany— the Wilson administration introduced its Army Bill, which provide for compulsory military service. Opposition arose immediately, with Speaker of the House Champ Clark insisting on a volunteer system. "I protest with all my heart and mind and soul," he proclaimed, "against having the slur of being a conscript place upon the men of Missouri. In the estimation of Missourians there is precious little difference between a conscript and a convict."(241) The Senate opposition was lead by Robert M. LaFollette. "[The] power once granted," he said, "will attach to the office [of the President], and will be exercised so long as the Nation shall last, by every successive incumbent, no matter how ambitions or bloody-minded he may be."(242) Nevertheless, on May 18, 1917, the Selective Service Act was passed by large majorities in both Houses. June 5, 1917, was set as registration day, and most Americans responded to the call.

The hysteria of World War I created what was probably the most serious erosion of political and civil liberty in our history. Zechariah Chafee, in his famed analysis of Free Speech in the United States, recounts numerous instances of official disregard for first amendment rights. (243) Under the Espionage Act, (244) any statement which tended to obstruct the draft became criminal, (245) and the courts enforced this provision vigorously. J. P. Doe, son of the great Chief Justice of New Hampshire, was convicted for writing a chain letter arguing that Germany had not broken its promise to the United States on submarine warfare. The produced of a film entitled "The Spirit of '76," which contained footage on Patrick Henry's speech, the Declaration of Independence, and scenes of British outrages committed during the Revolution, was also found guilty under the Espionage Act, since Britain was then our ally. Abraham Sugarman, Minnesota state secretary of the Socialist Party, told an open meeting: "This is supposed to be a free country. Like Hell it is." He then stated that the Selective Draft Act was unconstitutional and that no one had to obey it. He, too, was convicted, and a federal judge sentenced him to three years at Leavenworth.(246) Ministers who preached that it was against Christian principles to fight were prosecuted, as were vigorous political opponents of congressmen who had voted for conscription.(247) Twenty-seven farmers from south Dakota claimed that their county's draft quota was too high and argued against the war generally; they received one-year sentences. Socialist, I.W.W. members, and labor leaders opposed to the war were systematically rounded up, tried in the most perfunctory manner before judges who openly called them traitors, and given maximum sentences. Newspapers and magazines that editorialized against the war were denied mailing privileges; insufficiently patriotic teachers were removed from their posts.(248)

In this atmosphere the Supreme Court's decision in the Selective Draft Law Cases was almost inevitable. Suggestions by critics of the war that the draft was unconstitutional had led to indictments under the Espionage Act, and the overwhelming sentiment in the country was in favor of maximum mobilization to fight the hated Germans. The briefs in the Arver case never even touched on the early history of the military clauses; instead, they focused primarily on the thirteenth amendment's prohibition of involuntary servitude. It is most unfortunate that such in important question was resolved in such an unsatisfactory decision; yet, despite its manifest deficiencies and questionable arguments, the Arver opinion has survived unchallenged as part of our constitutional doctrine.