[templar]

The Federal Constitution should be amended, by the same process as used to prohibit alcohol or establish an income tax, to establish Federal authority for the draft.

Why? The authority is already, de facto, in place through the constitutional right to raise armies (it doesn't say hire armies or ask for armies), the right to call the militia into service (all able bodied men) and the supreme court agreeing with congress that this is constitutional. If anything, an ammendment would be required to forbid the draft. Perhaps you should try that route if you oppose the draft that strongly since, as it stands now, the draft can be instituted by congress at will.

[Wallace T.]

Your position does not comport with Federal military policy in the first 72 years of the republic. When President Washington called upon the militia to suppress the Whiskey Rebellion, he did not call for a general levy of untrained men, but asked the states for the active militia. The War of 1812, the only war in our history, other than the War for Independence, where foreign troops invaded and occupied American soil, was not fought with a conscripted Federal army but with an all volunteer U.S. Army, supplemented by state militias. The same situation was true in the Mexican War. Considering that both the War of 1812 and the Mexican War were not spot conflicts, but long campaigns, the Federal government certainly had the time to establish a draft and utilize these men to supplement the ranks of the Regular Army. That they did not, even though (in the case of the War of 1812) the national capital was burned to the ground indicates that the Federal authorities did not believe they had Constitutional grounds for a draft.

The Constitution gives the President the authority to call the militia into service. However, the examples of the three Federal military actions I cited indicate that the intention was to call the organized militia, trained, part-time soldiers. That the training and discipline of the militia, including the appointment of officers, was to be a matter for the states to handle indicates that the original intent of the Framers was for the organizing of the militia to be a state matter. In other words, the states had the common law authority to conscript men. This power was not passed on to the Feds in the original language of the Constitution. Further, given the language of the Ninth and Tenth Amendments restricting Federal authority to what was delineated in the Constitution, this power could not be imputed,

Raising an army clearly implied creation of a professional military, such as the European states had. A professional military is one that is a voluntary service, a contractual agreement between the officer or soldier and his government. In the 18th Century, all the European nations, with the possible exception of Prussia, had such armies. That is the context in which the Framers wrote the clause "to raise armies."

That the Federal government utilized the draft in the Civil War, the World Wars, and the Cold War era does not indicate that the politicians were conforming to the original intent of the Constitution. Rather, the approach has been the same "living document" and "implied powers" balderdash that has transformed our form of government from a limited Federal government with most powers resting with the states and people to an almost unlimited central one with the states and people subject to the whims of Washington bureaucrats. If we conservatives decry the abuse of the "implied powers" and "living document" legal theories to establish minimum wages, environmental regulations, affirmative action, etc., we need to be consistent, even when the cause is good, e.g., the raising of armies for the protection of the nation.