The 1863 Enrollment Act established a federal draft of men into the Union Army. Since the ratification of the Constitution it had been held that citizens could summoned to serve in the militia, and the militia could be federalized to suppress rebellion, but the federal Army was supposed to be volunteer only. And AFAIK, it wasn’t until 1918 that the Supreme Court ruled in the Selective Draft Law Cases that it was constitutional for citizens to be drafted directly into the federal Army. So what was the legal basis for the Enrollment Act?
Funny what a war does to legal proceedings, isn’t it? Say something is required to save the country, and, before the currant partisan politics, it got enacted.
Shoot first, get legal decision later; better wrong than dead, etc.
If you want to get bent out of shape by questionable legal tactics by the Lincoln administration, look up Habeas Corpses and its suspension.
I think the historic policy of the army being manned by volunteers was more a matter of practice than legal principle. With no draft ever being enacted, why would here be precedents on what was a theoretical issue?
Once the draft was enacted during the war, it served more as a means of inducing men to volunteer or find substitutes than an actual direct source of manpower. Only around two percent of the men who served in the United States Army during the war were draftees.
Off the cuff, I’m going to say that conscription was allowed at English common law and since not prohibited by the Constitution was an implied power of any sovereign government. Can’t be a 10th amendment argument since the states are forbidden to keep armies, so that implied power by default would go to the feds.
At least that would be a summary of a Scalia opinion. 
In the 18th century at least, conscription was loathed by English-speaking peoples on both sides of the Atlantic. Even when the British pressed sailors into naval service, they didn’t conscript soldiers. The writers of the Federalist and Anti-Federalist papers considered conscripted troops to essentially be slaves of the state, and thuggish slaves at that. I find it hard to believe that at the time conscription was considered a “time-honored” practice.
I guess what I’m asking is if there was any fig leaf at all by which the Enrollment Act was considered “enrolling the Militia”, rather than a naked draft directly into the Federal Army.
By hating the practice in a time of peace wouldn’t necessarily mean that they didn’t think it was acceptable in times of rebellion.
Plus, Congress has the express power to “raise and support armies.” Since conscription was a historical tool to man an army, nobody saw an issue with using it.
Haven’t you heard? There’s a war going on.
War is its own legality. Courts either back the government up or wait until the war is over to negate a law. Most of us have never lived through a total war, which I’d define as the Civil War, WWI, and WWII. The President can do damn near anything that will obviously benefit the war effort and the public not only supports that but normally is demanding that he go a whole lot further. Legally be damned.
Technically, though, nothing is illegal until a court makes it so. Congress passed a law in proper fashion; the President signed it. They weren’t overturning any previous laws about a draft. I’m not aware of previous Supreme Court decisions making a draft unconstitutional. There is no affirmative statement in the Constitution banning a draft. It may have been something new and against an agreed tradition, but what would have made it nonlegal to do at the time? Controversial, maybe, but every new thing is controversial.
The Enrollment Act was actually challenged in court as to its constitutionality. I haven’t found a US Supreme Court ruling, but there was a ruling by the US District Court in Pennsylvania, parts of which can be found in this NY Times article (the NY Times erroneously says that Judge Cadwaller is with the Penn. Supreme Court)
Once upon a time, SCOTUS said something like, “the constitution is not a suicide pact”. You don’t have to be Scalia to accept that.
I suppose you could argue that the constitutional permission to suspend habeas corpus is relevant. Whether this can justify a peace time draft is another question, but the law seems settled.
It is true that the Constitution gives the power to suspend Habeas Corpus to Congress, and in that sense Lincoln acted extra-constitutionally. But Congress was less frequently in session in the 19th century, and wasn’t around when the need arose. Recalling Congress for emergency session was not really an option in pre-airplane days. So Lincoln acted. Crucially, he did ask Congress for its retroactive blessing, which it gave.
Also recall that this was in the middle of the Civil War–itself the biggest constitutional crisis in US history. Arguably Lincoln found himself in a situation where his oath to “preserve, protect and defend the Constitution of the United States” conflicted with part of the Constitution, and he made a tough choice in a tough time. Despite what some seem to think, the founders were not gods and the Constitution is not a perfect document.
As for partisan politics, the remaining Democrats in the Senate did all they could to hold up that retroactive (and prospective) approval. Political inanity did not cease during the Civil War.
That’s what the Supreme Court said in 1918, not 1863.
Thanks for the link. I’m still parsing 19th century legalese, but it seems to be mainly about the Constitutionality of imprisonment for resisting the draft, not the draft itself; and the question of whether a person was immediately under military justice the moment their name was drawn as opposed to when they were actually inducted.
The suspension clause does not say who can suspend habeas corpus - is it Congress, or the President , or both? You can’t tell from the bare words of the suspension clause, and the issue hadn’t been settled by the courts at the time of the Civil War.
In theory, the federal government is one of enumerated, not implied, powers, and it is not empowered to do anything that the Constitution does not forbid. Today, of course, no such limits exist any longer, but courts back then may well have been a bit stricter about wanting to tie the draft to something actually stated in Article I. Presumably the argument would be that a draft is necessary and proper to carry out Congress’ express authority to raise armies.
As for courts obediently falling in line during wartime, I think that’s true in general, but potentially less reliable in a civil war. Imagine if the US district judges in the South had not resigned at the outset of hostilities but rather had insisted that they were still constitutionally empowered to hear cases.
Well, it is in Article One.
But the Supreme Court didn’t “not” say it in 1862. That’s the important part.
And to Mr. Tildrum, if you read my prior posts, I’m one of the few states’ rights guys on this board. But the federal government certainly has implied powers of a sovereign which hasn’t been granted to the states. The states cannot raise armies. The feds can. Conscription was part of the English common law to raise armies.
Does it follow that the 10th amendment grants/empowers/leaves nothing, and I mean nothing, except in the text of the Constitution to allow the enumerated powers to take effect?
For example: The constitution doesn’t say anything about punishment for not paying taxes, just the power to tax. Isn’t it implied that if the taxes aren’t paid, the government can pass laws imprisoning people who don’t pay taxes?
When? As I said upthread, with the notable exception of impressment of sailors, conscription would have been considered a violation of the rights of Englishmen, at least between the Glorious Revolution and World War One.
ETA: In particular, the 1863 Enrollment Act mandated that those enrolled were to serve for a three-year regular term of duty, not the nine months that was the traditional limit of militia service.
Yes, but in section 9, not in section 8. If it was meant to be a legislative power of Congress, wouldn’t it be in section 8?
Plus, at least two of the other limitations found in s. 9 likely apply to the Executive Branch: the appropriations clause (money cannot be withdrawn from the Treasury, except under the authority of an appropriations bill; that has some relevance to recent political issues :p), and the prohibitions on titles of nobility - in the British model, titles of nobility are an executive act, so by that precedent, that clause can be interpreted as a limitation on the powers of the President as well as Congress; neither can create titles of nobility.
So, if those two clauses are a limitation on the executive as well as Congress, then the habeas clause may equally be seen as a limitation on both branches, without answering which branch, if not both, has the power to suspend habeas in time of war.
Would it be accurate then to say that maybe the 1863 Enrollment Act was unconstitutional; but that given that habeas corpus was suspended, provost marshals rounded up people who resisted the draft, and the issue became legally moot with the end of the war, that the Lincoln administration simply got away with it due to the circumstance of civil war?
My understanding (IANAL) is that the law doesn’t work this way. If a law has not been declared unconstitutional, then it is presumed legal.
But we don’t even have to speculate about this one. Captain Amazing’s great cite shows us that a court found the law to be constitutional. Since no higher court ruled otherwise, that settles it legally.
If you want to have a philosophical argument that the court’s finding was in error, have at it. But if a court said it was constitutional, then the only accurate way to look at the law is that is was constitutional. I don’t think our legal system can proceed otherwise.
I don’t think I’m equipped to argue at that level, as IANACL. My understanding of Article 1 and the habeas corpus controversy come from my conversations with legal experts about the Bush/Cheney administration’s approach to the law, and those experts’ responses to the defense “Lincoln suspended habeas corpus, so [controversial policy] is okay.” The people I spoke to seemed to take it as given that suspending habeas corpus was reserved to Congress.
This may seem lame but I’d rather not give names as our discussions were for research only and I’m pretty certain they didn’t imagine I’d be citing (or possibly mis-citing) their words in the course of a discussion on the SDMB. Perhaps I can say that among the experts I spoke to, one is a frequently-quoted constitutional law professor at a well-regarded and accredited university in the DC area, and another is a journalist who writes frequently on the law and national security, and has published a book on the subject. This is the worst kind of argument by (anonymous) authority, but at least they weren’t from Hollywood Upstairs Law College… 
Anyway, I understand that people who study this more than I have may well disagree with the positions they take; I just found what I learned from them to be persuasive enough to repeat.