Conscription and the Constitution: The Original Understanding

Authors

Leon Friedman, Hofstra University School of Law

Abstract

The general words of the Constitution-famous phrases such as "due process," "freedom of speech," "interstate commerce," and "raise and support armies"-are not self-evident concepts. As Justice Frankfurter said, "The language of the [Constitution] is to be read not as barren words found in a dictionary but as symbols of historic experience illumined by the presuppositions of those who employed them. Not what words did Madison and Hamilton use, but what was it in their minds which they conveyed?" While the framers obviously could not have foreseen the discovery of electromagnetic radio waves or atomic energy, and had no "intent" concerning the regulation of television stations or uranium piles, they knew only too well the dangers of a professional army and the need for training and mobilizing the citizens for defense. They considered these problems in more detail than those of virtually any other governmental function, and thus the plans they made for our nation's military forces deserve detailed inquiry. Such a study reveals that the military structure presently existing in the United States, which depends primarily upon direct conscription of citizens into the federal army, fails to meet the standards established by the framers of the Constitution in 1787.

Recommended Citation

Leon Friedman, Conscription and the Constitution: The Original Understanding, 67 Mich. L. Rev. 1493 (1969).
Available at: https://repository.law.umich.edu/mlr/vol67/iss8/3