note from an old college text book

     During the Civil War the United States witnessed the greatest growth in federal power since the founding of the Republic.  The single largest area involved the raising of an army, first through volunteers and then by conscription.  The Constitution (Article I, Section 8) gives Congress the power to "raise and support Armies" and to call out and direct state militias.  But did this allow for forced service, and did it allow the President to assign quotas to the states for their militias?  The 1863 Draft Law applied to all male citizens between twenty and forty-five, as well as to immigrants who had declared their intention to become citizens. While necessary, it aroused fierce resentment, which occasionally turned into mob violence.  No test case of the draft's constitutionality ever reached the Supreme Court, but New York governor Horatio Seymour urged Lincoln to suspend the draft because of its alleged unconstitutionality.  Lincoln's defense of the draft, in this memorandum later found in his papers, indicates his understanding of the "adequacy-of-the-Constitution" argument...

The Constitutionality Of The Draft

by Abraham Lincoln



     It is at all times proper that misunderstanding between the public and the public servant should be avoided; and this far more important now, than in times of peace and tranquility.  I therefore address you without searching for a precedent upon which to do so.  Some of you are sincerely devoted to the republican institutions, and territorial integrity of our country, and yet are opposed to what is called the draft, or conscription.

     At the beginning of the war, and ever since, a variety of motives pressing, some in one direction and some in the other, would be presented to the mind of each man physically fit for a soldier, upon the combined effect of which motives, he would, or would not, voluntarily enter the service.  Among these motives would be patriotism, political bias, ambiton, personal courage, love of adventure, want of employment, and convenience, or the opposites of some of these.  We already have, and have had in the service, as appears, substantially all that can be obtained upon this voluntary weighing of motives.  And yet we must some how obtain more, or relinquish the original object of the contest, together with all the blood and treasure already expended in the effort to secure it.  To meet this necessity the law for the draft has been enacted.  You who do not wish to be soldiers, do not like this law.  This is natural; nor does it imply want of patriotism.  Nothing can be so just, and necessary, as to make us like it, if it is disagreeable to us.  We are prone, too, to find false arguments with which to excuse ourselves for opposing such disagreeable things.  In this case those who desire the rebellion to succeed, and others who seek reward in a different way, are very active in accomodating us with this class of arguments.  They tell us the law is unconstitutional.  It is the first instance, I believe, in which the power of congress to do a thing has ever been questioned, in a case when the power is given by the constitution in express terms.  Whether a power can be implied, when it is not expressed, has often been the subject of controversy; but this is the first case in which the degree of effrontery has been ventured upon, of denying a power which is plainly and distinctly written down in the constitution.  The constitution declares that "The congress shall have the power... To raise and support armies; but no appropriation of money to that use shall be for a longer term than two years."  The whole scope of the conscription act is "to raise and support armies."  There is nothing else in it.  It makes no appropriation of money; and hence the money clause just quoted, is not touched by it.  The case simply is the constitution provides that the congress shall have power to raise and support armies; and, by this act, the congress has exercised the power to raise and support armies.  This is the whole of it.  It is a law made in literal pursuance of this part of the United States Constitution; and another part of the same constitution declares that "This constitution, and the laws made in pursuance thereof... shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the constituion or laws of any state to the contrary notwithstanding."

     Do you admit that the power is given to raise and support armies, and yet insist that by this act congress has not exercised the power in a constitutional mode? ~ has not done the thing, in the right way?  Who is to judge of this?  The constitution gives congress the power, but it does not prescribe the mode, or expressly declare who shall prescribe it.  In such case congress must prescribe the mode, or relinquish the power.  There is no alternative.  Congress could not exercise the power to do the thing, if it had not the power of providing a way to do it, when no way is provided by the constitution for doing it.  In fact congress would not have the power to raise and support armies, if even by the constitution, it were left to the option of any other, or others, to give or withhold the only mode of doing it.  If the constitution had prescribed a mode, congress could and must follow that mode; but as it is, the mode necessarily goes to congress, with the power expressly given.  The power is given fully, completely, unconditionally.  It is not a power to raise armies if State authorities consent; nor if the men to compose the armies are entirely willing; but it is a power to raise and support armies given to congress by the constitution, without an if.

     It is clear that a constitutional law may not be expedient or proper.  Such would be a law to raise armies when no armies were needed.  But this is not such.  The republican institutions, and territorial integrity of our country can not be maintained without the further raising and supporting of armies.  There can be no army without men.  Men can be had only voluntarily, or involuntarily.  We have ceased to obtain them voluntarily; and to obtain them involuntarily, is the draft ~ the conscription.  If you dispute the fact, and declare that men can still be had voluntarily in sufficient numbers prove the assertion by yourselves volunteering in such numbers, and I shall gladly give up the draft.  Or if not a sufficient number, but any one of you will volunteer, he for his single self, will escape all the horrors of the draft; and will thereby do only what each one of at least a million of his manly brethren have already done.  Their toil and blood have been given as much for you as for themselves.  Shall it all be lost rather than you too, will bear your part?

     I do not say that all who would avoid serving in the war, are unpatriotic; but I do think every patriot should willingly take his chance under a law made with great care in order to secure entire fairness.  This law was considered, discussed, modified, and amended, by congress, at great length, and with much labor; and was finally passed, by both branches, with a near approach to unanimity.  At last, it may not be exactly such as any one man out of congress, or even in congress, would have made it.  It has been said, and I believe truly, that the constitution itself is not altogether such as any one of its framers would have preferred.  It was the joint work of all; and certainly the better that it was so...

     The principle of the draft, which simply is involuntary, or enforced service, is not new.  It has been practiced in all ages of the world.  It was well known to the framers of our constitution as one of the modes of raising armies, at the time they placed in that instrument the provision that "the congress shall have power to raise and support armies."  It has been used, just before, in establishing our independence; and it was also used under the constitution in 1812.  Wherein is the peculiar hardship now?  Shall we shrink from the necessary means to maintain our free government, which our grand-fathers employed to establish it, and our own fathers have already employed once to maintain it?  Are we degenerate?  Has the manhood of our race run out?

     Again, a law may be both constitutional and expedient, and yet may be administered in an unjust and unfair way.  This law belongs to a class, which class is composed of those laws whose object is to distribute burdens or benefits on the principle of equality.  No one of these laws can ever be practically administered with that exactness which can be conceived of in the mind.  A tax law, the principle of which is that each owner shall pay in proportion to the value of his property, will be a dead letter, if no one can be compelled to pay until it can be shown that every other one will pay in precisely the same proportion according to value; nay even, it  will be a dead letter, if no one can be compelled to pay until it is certain that every other one will pay at all ~ even in unequal proportion.  Again the United States House of representatives is constituted on the principle that each member is sent by the same number of people that each other one is sent by; and yet in practice no two of the whole number, much less the whole number, are ever sent by precisely the same number of constituents.  The Districts can not be made precisely equal in population at first, and if they could, they would become unequal in a single day, and much more so in the ten years, which the Districts, once made, are to continue.  They can not be re-modelled every day; nor, without too much expence and labor, even every year.

     This sort of difficulty applies in full force, to the practical administration of the draft law.  In fact the difficulty is greater in the case of the draft law.  First, it starts with all the inequality of the congressional Districts; but these are based on entire population, while the draft is based upon those only who are fit for soldiers, and such may not bear the same proportion to the whole in one District, that they do in another.  Again, the facts must be ascertained, and credit given, for the unequal numbers of soldiers which have already gone from the several Districts.  In all these points errors will occur in spite of the utmost fidelity.  The government is bound to administer the law with such an approach to exactness as is usual in analogous cases, and as entire  good faith and fidelity will reach.  If so great departures as to be inconsistent with such good faith and fidelity, or great departures occurring in any way be pointed out, they shall be corrected; and any agent shown to have caused such departures intentionally, shall be dismissed.

     With these views, and on these principles, I feel bound to tell you it is my purpose to see the draft law faithfully executed.


source: an old college text book




 Civil War draft riots, NY City, around 1863...




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