368 



ENROLMENT AND DRAFT. 



forces distinct. Under this law, the President may 

 even send them to the navy. 



I am in favor of granting the injunction in favor of 

 each of the defendants for nis own protection, but not 

 for the staying of all proceedings under the act. 



The dissenting opinion was delivered by 

 Justice Strong : 



The complainants rest wholly upon the assertion 

 that the act of Congress is unconstitutional, and, there- 

 fore, void. It is denied that there is any power in 

 the Federal Government to compel the military service 

 of a citizen by direct action upon him, and it is insist- 

 ed that Congress can constitutionally raise armies in 

 no other way than by voluntary enlistments. 



The necessity of vesting in the Federal Government 

 power to raise,"support, and employ a military force was 

 plain to the framers of the Constitution, as well as to 

 the people of the States by whom it was ratified. This 

 is manifested by many provisions of that instrument, 

 as well as by its general purpose, declared to be for the 

 " common defence." Indeed such a power is neces- 

 sary to preserve the existence of any independent gov- 

 ernment, and none has over existed without it. It 

 was, therefore, expressly ordaiued in the eighth article, 

 that the Congress of the United States should have 

 power to " provide for calling forth the militia to exe- 

 cute the laws of the Union, suppress insurrections, and 

 repel invasions." It was also ordained that, they should 

 have power to provide for organizing, arming, and dis- 

 ciplining the militia, and for governing suchpartof 

 them as may be employed in the service of the United 

 States, reserving to the States respectively the appoint- 

 ment of the officers and the authority of training the 

 militia according to the discipline prescribed by Con- 

 gress. Nor is this all. It is obvious that if the grant of 

 power to have a military force had stopped here, it 

 would not have answered all the purposes for which the 

 Government was formed. It was intended to frame a 

 Government that should make a new member in the 

 family of nations. To this end, within a limited sphere, 

 every attribute of sovereignty was given. This un- 

 restricted power of making treaties involved the pos- 

 sibility of offensive and defensive alliances. Under 

 such treaties the new Government might be required 

 to send armies beyond the limits of its territorial juris- 

 diction. And, in fact, at the time when the Constitu- 

 tion was formed, a treaty of alliance, offensive and de- 

 fensive, was in existence between the old Confederacy 

 and the Government of France. Yet more. Apart from 

 the obligations assumed by treaty, it was well known 

 that there are many cases where the rights of a nation 

 and its citizens cannot be protected or vindicated with- 

 in its own boundaries. But the power conferred upon 

 Congress over the militia is insufficient to enable the 

 fulfilment of the demands of such treaties, or to pro- 

 tect the rights of the Government or its citizens in 

 those cases in which protection must be sought be- 

 yond the territorial limits of the country. The power 

 to call the militia into the service of the Federal Gov- 

 ernment is limited by express terms. It reaches only 

 three cases. The call may be made " to execute the 

 laws of the Union, to suppress insurrections, and to 

 repel invasions," and for no other uses. By the same 

 section of the eighth article of the Constitution, it was 

 ordained, in words of the largest meaning, that Con- 

 gress should have power to " raise and support ar- 

 mies," a power not to be confounded with that given 

 over the militia of the country. Unlike that it was 

 unrestricted, unless it be considered a restriction that 

 appropriations of money to the use of raising and sup- 

 porting armies were forbidden for a longer term than 

 two years. In one sense this was a practical restric- 

 tion. If there be any restriction upon the mode of ex- 

 ercising the power, it must be found elsewhere than in 

 the clause of the Constitution that conferred it. And, 

 if a restricted mode of exercise was intended, it is re- 

 markable that it was not expressed. Of course there 

 can be no presumption in favor of the existence of a 

 power sought to be exercised by Congress. It must 

 be found in the Constitution. But this principle is 



misapplied when it is used, as is sometimes the case, to 

 restrict the right to exercise a power expressly given. 



The powers of the Federal Government are limited 

 in number, not in their nature. A power vested in 

 Congress is as ample as it would be if possessed by 

 any other legislature, none the less because held by 

 the Federal Government. It is not enlarged or di- 

 minished by the character of its possessor. Congress 

 has power to borrow money. Is it any less than the 

 power of a State to borrow money ? Because the Fed- 

 eral Government has not all the powers which a State 

 Government has, will it be contended that it cannot 

 borrow money, or regulate commerce, or fix a stand- 

 ard of weights and measures, in the same way, by the 

 same means, and to the same extent, as any State 

 might have done, had no Federal Constitution ever 

 been formed ? If not, and surely this will not be con- 

 tended, why is not the Federal power to raise armies 

 as large, and as unfettered in the mode in which it 

 may be exercised, as was the power to raise armies 

 possessed by the States before -1787, and possessed by 

 them now in time of war ? If they were not restricted 

 to voluntary enlistments in procuring a military force, 

 upon what principle can Congress be ? 



It is not difficult to ascertain what must have been 

 intended by the founders of the Government when 

 they conferred upon Congress the power to " raise ar- 

 mies." At the time when the Constitution was form- 

 ed, and when it was submitted to the people for adop- 

 tion, the mode of raising armies by coercion, by enrol- 

 ment, classification, ana draft, as well as by voluntary 

 enlistment, was well known, practised in other coun- 

 tries, and familiar to the people of the different States. 

 Yet in full view of such enactments, they conferred 

 upon Congress an unqualified power to raise armies. 

 And, still more than this, coercion into military ser- 

 vice by classification and draft from the able-bodied 

 men of the country was to them a well-known mode of 

 raising armies in the different States which confeder- 

 ated to carry on the Revolutionary war. 



It is an historical fact that during the later stages 

 of the war, the armies of the country were raised, 

 not alone by voluntary enlistment, but also by coer- 

 cion, and that the liberties and independence sought 

 to be secured by the Constitution, were gained by sol- 

 diers made such, not by their own voluntary choice, 

 but by compulsory draff. 



Thus it is manifest that when the members of the 

 Convention proposed to confer upon Congress the 

 power to raise armies, in unqualified terms, and 

 when the people of the United States adopted the Con- 

 stitution, they had in full view compulsory drafts from 

 the population of the country, as a known and author- 

 ized mode of raising them. The memory of the Re- 

 volution was then recent. It was universally known 

 that it had been found impossible to raise sufficient ar- 

 mies by voluntary enlistment, and that compulsory 

 draft had been resorted to. If, then, in construing the 

 Constitution, we are to seek for and be guided by the 

 intentions of its authors, there is no room for doubt. 

 Had any limitation upon the mode of raising armies 

 been intended, it must have been expressed. It could 

 not have been left to be gathered from doubtful con- 

 jecture. It is incredible that when the power was 

 given in words of the largest signification, it was 

 meant to restrict its exercise to a solitary mode that 

 of voluntary enlistment when it was known that en- 

 listments had been tried and found ineffective, and 

 that coercion had been found necessary. 



I agree that Congress is not at liberty to employ 

 means for the execution of any powers delegated to it, 

 that are prohibited by the spirit of the Constitution, or 

 that are inconsistent with the reserved rights of the 

 States, or the inalienable rights of a citizen. The 

 means used must be lawful means. But I have 

 not been shown, and I am unable to perceive that 

 compelling military service in the armies of the 

 United States, not by arbitrary conscription, but, as 

 this act of Congress directs, by enrolment of all the 

 able-bodied male citizens of the United States, and 

 persons of foreign birth, who have declared their inten- 



