Constitutionality of the Draft

Paper Summary:

Conscription is often believed in principle to be either wrong, unnecessary, or both, or necessary under certain circumstances and therefore morally permissible due to them. There has also been extensive argument over the question of how exactly the clauses of the Constitution that relate to military powers and their foundations in the branches of government should be interpreted. The paper shows that this question logically leads to the examination and assessment of the intentions of those men who actually conceived of and wrote these clauses. At first, one might assume that the Framers never considered the prospect of a military draft in the United States, since its first instance in this country occurred over 70 years after the ratification of the Constitution. The paper argues that although we will never know for sure the true original meaning of the Constitution's language, there is an abundance of evidence that strongly suggests that the Framers never intended to institute a general conscription of ordinary citizens, and even that they were expressly opposed to and made efforts to guard against the implementation of conscription. The paper further argues that by using the evidence we possess of the Framers' intentions to interpret the Constitution's clauses concerning the military, as well as supporting background evidence from the time period, only one conclusion can be reasonably drawn: By applying a standard which focuses on the original meaning of the Constitution as the Framers intended it, the United States military draft cannot be considered constitutional.

From the Paper:

"It appears, then, that Holzer would also likely agree that underlying the formation of American political thought in the independence and post-independence era is the philosophy of John Locke and his social contract. This contract is made possible by citizens who voluntarily give up some of their natural rights in order to enjoy an even better set of rights in a political community. These concepts are themes that we see in both the Declaration of Independence and our Constitution, which provide for the government protection of life, liberty and property that Locke advocated. This fact becomes important to the question of the constitutionality of conscription when we consider that the draft "contradicts this element of liberal democracy by demanding the possible sacrifice of one's life for one's country.""

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