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Wednesday, February 22, 2023

Is a National Military Draft Constitutional Under Original Public Meaning?

We know that national conscription is constitutional. Why? Because it was done during the Civil War, World War I, World War II, Korea, and Vietnam. But would the Founding generation have thought a national draft was within Congress's enumerated powers? That's a much harder question. It seems pretty clear that in 1787-1788 people thought that states could draft men into the militia. Whether that extended to the national government is not clear at all. (Here I am drawing on some work that Akhil Amar did more than thirty years ago.)

This issue was discussed in Congress during the War of 1812, when a national draft was considered but not adopted. It was also addressed during the Civil War when a draft (or a high tax for not being drafted) was adopted. I'll go through all of that in some other posts.

The most relevant textual provision is that Congress has the power "[t]o raise and support Armies." The question is whether "armies" meant something different from "militias" in 1787-1788. One thought is that militias were the only entities that involved conscription; a reading that finds some support from the Second Amendment. Armies, on this view, refer instead to only volunteers and/or mercenaries.  Thus, Congress lacked the power to conscript. President Lincoln (in a private letter) rejected this distinction and said that conscription was a valid means to raise an army. He also had a necessity argument on his side--no small thing. Anyway, more on this another time.  

Posted by Gerard Magliocca on February 22, 2023 at 09:49 PM | Permalink


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