Freedom Under Siege by Ron Paul

Author:Ron Paul [Paul, Ron]
Language: eng
Format: epub, azw
ISBN: 978-1-6101-6079-7
Publisher: The Foundation for Rational Economics and Education, Inc
Published: 2011-11-06T16:00:00+00:00

The Civil War Challenge

During the Civil War, with Lincoln’s assumption of war power, the issue of the draft never made it to the U.S. Supreme Court. Although, in a practical sense, the draft was a total failure for the Union, the fact that there was never a Supreme Court ruling against the draft meant the legal stage was set for the acceptance by the courts in 1918.

By then the growth of the collective mentality of the twentieth century permitted the general acceptance of compulsory military service. The cause of declining personal and economic freedoms since 1914 parallels the rise in popular support for compulsory military service-not surprisingly since they are one and the same.

There was one case of great importance in 1863, Kneedler vs. Lane, heard before the Pennsylvania Supreme Court, where the issue of conscription was considered in detail. The draft was ruled unconstitutional, only to be reversed by a new majority on the court two months later. The complainants based their case on the claim that the federal government had no power to compel military service, even in fight of “insurrection,” for the Constitution says that “repelling insurrection and repelling invasion will be a responsibility of the state militia,” not the federal government.

In the majority opinion given at Pittsburgh, Pennsylvania, on November 9, 1863, which ruled the draft unconstitutional, the following comments were made by Chief justice Lowrie:

If Congress may institute (a draft law) as a necessary and proper mode of exercising its power ‘to raise and support armies’ then it … may compel people to lend it their money (or) take their houses … I am quite unable now to suppose that so great a power could have been intended to be granted, and yet be left so loosely guarded.

Two other Justices, Woodward and Thompson, agreed with Chief Justice Lowrie by adding:

… assuredly the framers of our Constitution did not intend to subject the people of the states to a system of conscription which has applied in the mother country only to paupers and vagabonds … Times of rebellion, above all others, are the times when we should stick to our fundamental law, lest we drift into anarchy on one hand, or into despotism on the other. The great sin of the (present) rebellion consists in violating the Constitution, whereby every man’s civil rights are exposed to sacrifice … the argument is that the exigencies of the times justify the substitution of martial law for the constitution.

And Justice Thompson further added:

We cannot suppose that at the moment the country had achieved its liberty … that such a despotism over the lives and liberties of men, would be incorporated into the Constitution as conscription. As if by the agency of the pressgang … the Constitution was adopted in ignorance, certainly, of any such power, if it does exist, it has required the lapse of three-quarters of a century to develop its latent evils. The moral evidences are all against the idea (of the draft).

Two months later Chief Justice

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