Argument for the United States. 245 U. S. Elliot's Debates, vol. 1, p. 336; vol. 3, p. 659; vol. 4, pp. 242, 244, 251, 252; and their rejection shows not only that the language employed was intended to include the power to draft but also that this was the contemporary interpretation. A prime object of the Constitution was to cure the impotence of the Continental Congress directly to require military service from the citizens of the States. Articles of Confederation, 7, 9 (1 Stat. 6, 7); Federalist, No. 22, p. 143, No. 23, pp. 152, 153; 7 Sparks, Writings of Washington, pp. 162, 167. Our national history demonstrates the existence of the power by its exercise. It was resorted to in the War of Independence and by both sides in the Civil War; near the conclusion of the War of 1812, James Monroe, then Secretary of War, submitted to Congress a draft bill with an unanswerable argument supporting the power. See Niles' Weekly Register, vol. 7, p. 137. [The Government also referred to state statutes requiring compulsory militia service in force before and after the adoption of the Constitution; Rev. Stats., § 1998, amended in 1912, 37 Stat. 356; and the following acts of Congress providing for drafting the militia: Feb. 28, 1795, 1 Stat. 424, amended April 18, 1814, 3 Stat. 134; July 17, 1862, 12 Stat. 597.] Court decisions uniformly have recognized the power. Tarble's Case, 13 Wall. 397, 408; Grimley's Case, 137 U. S. 147, 153. See also Presser v. Illinois, 116 U. S. 252, 265; Robertson v. Baldwin, 165 U. S. 275, 282; Jacobson v. Massachusetts, 197 U. S. 11, 29; Butler v. Perry, 240 U. S. 328, 332, 333. In Kneedler v. Lane, supra, the Conscription Act of 1863, was sustained under the power to raise armies; and in United States v. Scott, 3 Wall. 642, and United States v. Murphy, 3 Wall. 649, that act was construed, no question of its constitutionality being raised. Under the similar clause in the Constitution of the Confederacy, draft acts were sustained in the confederate 366. Argument for the United States. courts. Compulsory militia service has also been enforced by the courts. Houston v. Moore, 5 Wheat. 1; Martin v. Mott, 12 Wheat. 19. The Act of 1862, supra, requiring performance of militia duty, was sustained in McCall's Case, 15 Fed. Cas. No. 8669, p. 1225; In re Griner, 16 Wisconsin, 423; Druecker v. Salomon, 21 Wisconsin, 621; In re Spangler, 11 Michigan, 298; Allen v. Colby, 47 N. H. 544. As to the power of the State to draft, see Lanahan v. Birge, 30 Connecticut, 438, 443; People ex rel. German Ins. Co. v. Williams, 145 Illinois, 573, 583; In re Dassler, 35 Kansas, 678, 684; State v. Wheeler, 141 N. Car. 773, 777. The present act has been sustained in every case which has come before the federal courts. There is not, as asserted, any common-law right of a soldier not to be sent out of the country. The status of a citizen properly drafted and that of one who has voluntarily enlisted are the same. Our armies have served in all parts of the world, and such service has never been regarded as illegal. Fleming v. Page, 9 How. 603, 615. Numerous statutes of the original States provided that the militia might be sent into neighboring States. Compulsory military service is not contrary to the spirit of democratic institutions, for the Constitution implies equitable distribution of the burdens no less than the privileges of citizenship. Whatever the limitations sought to be set upon the Crown, there can be no doubt that power to impress for foreign service resided in Parliament, and was actually exerted. [The discussion of this subject is supported by many references to history.] The act infringes no provision of the Constitution concerning the militia. The fact that a citizen is a militiaman does not exempt him from service in the National Army. The militia and the National Army are separate institutions, created for separate purposes; and the power of Congress over the former (Art. I, § 8, cl. 15, 16) is not Argument for the United States. 245 U.S. in limitation but in extension of the power to raise armies (cl. 12). The law infringes no reserved right of the States over the militia. If there be a conflict between the state and federal powers in this respect, the latter must prevail. Ex parte Coupland, 26 Texas, 386, 396, 402; Burroughs v. Peyton, 16 Gratt. 470, 475, 483-485; Jeffers v. Fair, 33 Georgia, 347, 351, 353; Ex parte Tate, 39 Alabama, 254, 268; Ex parte Bolling, id., 609; Barber v. Irwin, 34 Georgia, 27, 37; Simmons v. Miller, 40 Mississippi, 19, 26; Kneedler v. Lane, supra. Otherwise, the power of Congress to raise armies must be nullified. But there is no conflict in fact. The National Government has never impaired the right of the States to keep up the militia. The present law draws into the National Army but a small portion of the militia as a whole, and the withdrawal from possible call for local service is only temporary. Act of June 15, 1917, § 4, 40 Stat. 217. The right of the States to organize and train the militia remaining has been recognized and safeguarded. Act of June 14, 1917, 40 Stat. 181; National Defense Act of June 3, 1916, § 61, 39 Stat. 198. The restrictions of the militia clause are inapplicable. The draft is not based on liability to perform militia duty, but on liability of citizens to render national military service. When Congress has made provision for calling the militia in the past, the words have been addressed to the militia expressly. [Citing numerous federal acts.] The opposing briefs are in conflict as to whether this act calls the militia. The National Defense Act of 1916, in designating all able-bodied male citizens between the ages of 18 and 45 as militiamen, does not call them to militia service, and clearly does not intend to relinquish the power to call citizens into the National Army. The Draft Act does not call the National Guard in its organized form, but operates upon the individuals, for reorganization in national units. Thus to select the trained members of the 366. Argument for the United States. National Guard from the body of citizenship is not arbitrary, but reasonable and prudent. However, even if plaintiffs in error were called as militiamen, they would not be entitled to relief in the courts. Martin v. Mott, supra; Luther v. Borden, 7 How. 1, 44. It is true that the President may not call out the militia for foreign service in time of peace, but in this instance it could not even be said that an emergency had not arisen, or that the President had not wisely exercised his discretion, to repel invasion. 29 Op. Atty. Gen. 322; Martin v. Mott, 12 Wheat. 29. The law imposes neither slavery nor involuntary servitude. The Thirteenth Amendment was intended to abolish only the well-known forms of slavery and involuntary servitude akin thereto, and not to destroy the power of the Government to compel a citizen to render public service. Butler v. Perry, 240 U. S. 328, 332; Robertson v. Baldwin, 165 U. S. 275, 282; Clyatt v. United States, 197 U. S. 207, 216; Edwards v. United States, 103 U. S. 471; People ex rel. German Ins. Co. v. Williams, 145 Illinois, 573; Wilson v. New, 243 U. S. 332, 351; In re Dassler, 35 Kansas, 678; and other cases. The legislation affecting the Northwest Territory (the language of the Amendment is used in the Ordinance of 1787) shows that compulsory military service was not regarded as involuntary servitude. See Chase, Statutes of Ohio, vol. 1, pp. 92, 102, 113, 211, 245. The law is not unconstitutional on the ground that state officials aid in its enforcement. The contention that it denies to the States a republican form of government is without merit and a question which the courts will not consider. Luther v. Borden, supra; Pacific Telephone Co. v. Oregon, 223 U. S. 118. As to the objection that it imposes duties on state officials, it is sufficient to say that plaintiffs in error, not being state officials, may not raise the objection. In executing the federal Argument for the United States. 245 U.S. law state officials are pro hac vice federal officials. In the absence of contrary statutory or constitutional provisions of the State, power may be conferred upon state officials as such to execute duties under an act of Congress, as was done during the Civil War in calling out militia. The law does not delegate legislative authority. It is as specific as is reasonably practicable. Throughout our history the common method of providing for increase in the land forces has been simply to vest authority in the President to raise the necessary troops. [Citing many statutes.] The act does not infringe the constitutional provisions concerning the judicial power. Art. I, § 8, cl. 9; Art. III, §§ 1, 2. The duties of the boards of exemption are administrative; they determine questions of fact necessary to be ascertained by the Executive in enforcing the law. The act does not violate the due process clause. It is said that it confers upon the President discretionary and arbitrary powers in the selection of citizens for the draft army and that citizens may be selected upon the whim of a state official. But the act does not require an arbitrary selection. No complaint has been made that it has been arbitrarily or unfairly administered. On the contrary, it provides a fair and orderly method of selection. The individual citizen may incidentally or temporarily be restrained of his liberties in order to protect the liberties of the people as a whole. Jacobson v. Massachusetts, 197 U. S. 11, 29. The law neither establishes a religion nor prohibits its free exercise. Section 4 contains nothing respecting the establishment of religion; on the contrary, it goes so far as to aid in the free exercise of those religions which forbid participation in war. The law does not deprive of the equal protection of the laws. The Fourteenth Amendment is addressed to |