IS THE DRAFT LAW CONSTITUTIONAL?
Taylor, Hannis
Is The Draft Law Constitutional? Use of National Guard on Foreign Soil Raises the Issue BY HANNIS TAYLOR (In an Address to the Congress of the United States) {.Mr. Hannis Taylor, the author of...
...If either the President or Congress, one or both, should attempt to ignore such constitutional exemption, any member of the militia threatened with transportation abroad could be immediately discharged from such service by any judge on habeas corpus...
...The incontestable facts staring us in the face are these: first, that only the "Regular Army" can be sent abroad...
...The county military system, known as the militia, survived the Norman Conquest unimpaired...
...Article II of the Amendments provides: "A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed...
...U. S. v. Wong Kim Ark, 169 U. S. 279...
...Presser v. Illinois, 116 U. S. 252...
...Exemption of National Militia from Service Abroad Absolute and Incontestable FROM what has now been said it clearly appears that the reserved force of the United States, four times described in the Constitution as the "Militia," can be called forth and organized by Congress either upon the volunteer plan or by forcible conscription...
...The definition of the National Militia given in Presser v. Illinois is closely followed in the National •Defense Act of June 3, 1916, whose Sec...
...1; Dynes v. Hoover, 20 How...
...57 reads as follows:" Composition of thE Militia.—The militia of the United States shall consist of all able-bodied male citizens of the United States and all other able-bodied males who have or shall have declared their intention to become citizens of the United States, who shall be more than eighteen years of age and, except as hereinafter provided, not more than forty-five years of age, and said militia shall be divided into three classes, the Rational Guard, the Xaval Militia, and the Unorganized Militia...
...Shall our Handful in France from the "Regular Army" be Abandoned or Strengthened...
...its mandate...
...second, that the ranks of the "Regular Army" can only be swelled "by voluntary enlistment...
...Houston v. Moore, 5 Wheat...
...It is scarcely conceivable that the term was not employed by the framers of our Constitution in the sense which had been affixed to it by those from whom wc borrowed it...
...and, in view of this prerogative of the General Government, as well as of its general powers, the States can not, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resources for maintaining the public security, and disable the people from performing their duty to the General Government...
...But it is equally clear that when so called forth and organized, the militia can only be used for one of the three purposes rigidly denned by the Constitution, to wit: "to execute the taws of the Union, suppress insurrections and repel invasions.'' Its application to any other purpose—notably service abroad—would be too obviously unconstitutional to justify discussion...
...The National Militia as Defined by Congress and the Supreme Court of the United States IT IS simply impossible to confuse "the Regular Army" of the United States with that force called by the Supreme Court "the reserved military force or reserve militia of the United States" Presser v. Illinois, 116 U. S. 252...
...The Power of Conpress to Draft or Conscript the National Militia for National Defense WHEN in the great case of Martin v. Mott, 12 Wheat...
...Stubbs, Select Charters, pp...
...Income Tax Cases, 157 U. S. 429...
...By the great statute of I Edw., Edw...
...It is hardly necessary to add here that the fact that the Omnipotent Parliament of Great Britain, which changes her constitution every time it passes an act, can take away such an exemption from the militia in that country, has no relevancy whatever to conditions in our own...
...Thus it has been settled by the Supreme Court that under the clause in question, the "General Government" of the United States, possesses, entirely apart from the States, "the reserved military force or reserve militia of the United States," consisting of "all citizens capable of bearing arms," whose right to bear arms can not be impaired by any law of any State...
...To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions...
...Regular or Standing Armies in England and America ENGLAND never had a military force that could be sent abroad until William the Conqueror brought such a force with him in the feudal host of professional soldiers who accompanied him...
...The editor of this Magazine differs with the writers views as to the necessity of the war, but he regards his able discussion of the constitutionality of the Draft for the conduct of a foreign war, of very great importance...
...Ill, Sec 3, he said: "But the term is not for the first time applied to treason by the Constitution of the United States...
...In that sense the term militia, four times repeated, was embodied in our Federal Constitution...
...The Constitution declares that Congress shall have power 'to provide for calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions...
...After giving in that way all possible emphasis to the fact that the National militia can never be used except for the specific purposes stated in the Constitution, the Court said that "the power to provide for repelling invasions includes the power to provide against the attempt and danger of invasion, as the necessary and proper means to effectuate that object...
...To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress...
...And in order to put it forever beyond the power of Congress to impair the ancient constitutional exemption from service abroad, the Convention, employing the masterful pen of Gouverneur Morris, provided that the new government, with strictly limited powers could only organize the National militia for three purposes: "to execute the laws of the Union, suppress insurrections and repel invasions...
...Crandall v. Nevada, 6 Wall...
...To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions," certain ill-informed and ill-disposed persons are circulating the report that the National Militia when so organized for national defense is to be sent out of the country for service abroad, in defiance to the express mandate of the Constitution to the contrary...
...realm" lor service in a foreign country...
...The Law of the Constitution, pp...
...and also 'to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States.' In pursuance of this authority, the Act of 1795 has provided 'that whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the State or States most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to Issue his order for that purpose to such officer or officers of the militia as he shall think proper.' And like provisions are made for the other cases stated in the Constitution...
...Quotas from the several States, Territories, and the District of Colombia, or subdivsisons thereof, shall be determined in proportion to the population thereof, and credit shall be given to any State, Territory, District, or subdivision thereof, for the number of men who were in the military service of the United States as members of the National Guard on April first, nineteen hundred and seventeen, or who have since said date entered the military service of the United States from any such State, Territory, District, or subdivision, either as members of the Regular Army or the National Guard...
...But as that regular term of service only lasted for forty days, it led to the device of shield-money which produced a fund with which the crown could employ mercenary and professional soldiers who could be kept abroad so long as needed...
...Out of that purely voluntary system of paid military service was evolved the standing army of England as it existed at the date of the American Revolution...
...2 the foregoing definition of the National Militia in this form: "Such draft as herein provided shall be based upon liability to military service of all male citizens or male persons not alien enemies who have declared their intention to become citizens, between the ages of twenty-one and thirty years, both inclusive, and shall take place and be maintained under such regulations as the President may prescribe not inconsistent with the terms of this Act...
...See Dwight's History of the Hartford Convention, p 359...
...Dicey, one of the most eminent of modern English commentators, says: "The militia is the constitutional force existing under the law of the land for the defense of the country . . . Embodiment indeed converts the militia for the time being into a regular army, though an army, which can not be required to serve abroad...
...The moment the exemption of the militia from service abroad was thus embodied in the Constitution, Congress was forever deprived of all power over the subject...
...Hannis Taylor, the author of the ad-dress that follows, was formerly U. S. minister to Spain and served as counsel of U. S. government before Spanish Treaty Claims Commission and before Alaskan Boundary Commission...
...It is a technical term...
...It is used in a very old statute of that country whose language is our language, and whose laws form the substratum of our laws...
...If, a unanimous court, speaking through Mr...
...Despite the fact that that act—whose avowed purpose is "To draft into the military service of the United States, organize, and officer" the Unorganized Militia" of the United States—was passed under that provision of Sec 8, Art...
...He is a recognized authority on international questions...
...As I have devoted the best years of my life to the study of such questions, I deem it my duty to restate, in a narrow compass and in an humle spirit, the basic constitutional principles underlying our system of military organization, as those principles have been settled for at least ninety years...
...In order to enable this Republic to maintain a standing army and navy like that of England the Convention of 1787, after giving to Congress the power "to declare war," provided that "The Congress shall have power...
...And more, any executive magistrate who might dare to ignore the constitutional exemption in question would be quickly admonished by the House of Representatives that it is ready witli that "two-handed engine at the door that smites once and smites no more...
...95, concerning the militia, in which it was specially provided that "neither the whole or any part, shall be ordered out of Great Britain...
...1534...
...When near the close of the War of 1S12 the Secretary of War proposed to compel the service of the National Militia by conscription, there was a strong protest from certain quarfers upon the ground that such a procedure would be unconstitutional...
...These three closely inter-linked clauses, all relating to a single subject matter, have been luminously expounded by the Supreme Court in U. S. v. Bevans, 3 Wheat...
...To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years...
...One of the best means to repel invasion is to provide the requisite force for action before the invader himself has reached the soil...
...Ill c. 107, Sec...
...Justice Story, was called upon to construe the act of 1795, which first organized the National militia for National defense, it was said...
...It was the duty of that host, which simply supplemented the ancient constitutional force known as the militia, "to attend the King in war, within and without the realm, mounted and armed, during the regular term of service...
...The ohly possible chance of obtaining additional soldiers for service abroad under the draft Act of May 18, 1917, is through that part of it which provides that "The President is further authorized to raise and maintain by voluntary enlistment, to organize, and equip, not to exceed four infantry divisions, the officers of which shall be selected in the manner provided by paragraph three of section one of this act: Provided, That the organization of said force shall be the same as that of the corresponding organization of the Regular Army...
...287-8...
...The exemption of the Rational militia to be drafted under the Act in question from service abroad is self-evident and un-debatable...
...Those three provisions, grouped together as a connected whole, relate solely and exclusively to one subject matter—the creation, maintenance and government of the regular Army and Navy of the United States, which has always been maintained "by voluntary enlistment...
...He is the author of works on the "Origin and Growth of the English and American Constitutions" and of a number of works on Jurisprudence...
...For the more clear and exact consideration of the subject, it may be necessary to refer to the Constitution of the United States, and some of the provisions of the Act of 1795...
...But when during the Civil War such a measure was again proposed it was acted on and the result accepted, without protest, as constitutional, as it undoubtedly was...
...English Military System Reproduced by the Federal Convention of 1787 THAT CONVENTION did all in its power to incorporate into our Federal Constitution the English military system which, in 1787, consisted, first, of a regular or "non-constitutional force" made up of a standing army and navy...
...With all possible respect I earnestly contend that the Congress should not commit that grave subject to the Executive...
...Aud provided further, That there shall be no enlistments in said force of men under twenty-five years of age at the time of enlisting And provided further, That no such volunteer force shall be accepted in any unit smaller than a division...
...In 1786, J£e year before the Federal Convention met, was passed the statute of 26 Geo...
...Luther v. Borden, 7 How...
...It is the constitutional function of Congress not only "to declare war" but to direct and control all of its graver operations...
...second, that the "Regular Army" can be augmented only "by voluntary enlistment...
...In such a contingency the whole or any part of the militia is liable, by proclamation of the sovereign, to be embodied, that is to say placed in active service within the confines of the United Kingdom...
...In order to enable Congress to create such a force for National purposes it was provided that "The Congress shall have power...
...that they are in the strictest sense of the term Rational militia raised in an emergency for Rational defense...
...That report, to which the term* of the act in question give neither color nor countenance, is creating an alarm that will surely reduce the registration unless the erroneous impression is corrected in advance of It, On the other hand such false impression is doing a great injustice to our allies who are looking for military aid to a source from wheh it can not possibly come under our Constitution as it now stands, Certainly every citizen of this country should know, first, that under our Constitution no American soldiers can be sent abroad even by the authority of Congress, except those composing the "Regular Army...
...To provide and maintain a navy...
...The term "militia," a technical term, a term of art with a history is used four times in the Constitution and always in the same sense...
...Ill, c. 5, it was provided that the militia should only be used at home for national defense," as has been used in times past for the defense of the realm...
...See to the same effect Rhode Island v. Mass., 12 Pet...
...To make rules for the government and regulation of the land and naval forces...
...The Congress should assume the entire responsibility and determine whether the handful of regular troops now on the way to France should be augmented or practically abandoned...
...We lave no right to mislead either our allies or ourselves...
...THIS IS NOT the time for self-deception...
...Therefore, when the framers took from the English Constitution the technical term, the term of art—militia—they took it with its thousand years of history behind it, attesting the fact that it is a force for Rational defense that can never be "taken out of the...
...1; Martin v. Mott, 12 Wheat...
...The act of May is, 1917, takes all possible pains to proclaim, first, that all soldiers drafted and organized under it are absolutely separate and distinct from "the Regular Army" of the United States...
...It involves no less than moral dignity, the good faith of this Nation...
...The act of May 18, 1917, which is simply a supplement or extension of the Act of June 3, 1916, amplifies in its Sec...
...and upon the same general basis rested the standing and professional naval force of England at that time...
...In the words of the Encyclopedia Brittanica, (9 ed): "The Militia of the United Kingdom consists of a number of officers and men maintained for the purpose of augmenting the military strength of the country in case of imminent national danger or great emergency...
...I of the Constitution which declares that "The Congress shall have power...
...By those limitations an other uses were expressly excluded with' all the force that language can impart...
...Texas v. White, 7 Wall...
...No part even of the "Regular Army" should ever be sent abroad except by...
...That is the question of questions that should not be delayed for a moment longer...
...Gentlemen: AT THIS critical juncture it is the patriotic duty of every American citizen to do all in his power to promote the success of the registration to take place on June 5, 1917, under the provisions of the wise and constitutional act approved May 18, 1917, entitled "An Act to Authorize the President to Increase Temporarily the Military Establishment of the United States...
...When in the trial of Burr it became necessary for Chief Justice Marshall to define the meaning of the term "levying war" as used in Art...
...In Presser v. Illinois, 116 U. S. 252, the Court went to the heart of the whole matter when, in defining "the reserved military force or reserve militia of the United States," it said: "It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States...
...second, of an emergency or "constitutional force" called the militia, a force for national defense that had existed for a thousand years...
Vol. 9 • June 1917 • No. 6
