They
remain militia, and go home when the emergency which provoked
their call has ceased. Armies raised by Congress are of course
raised out of the _same population_ as the militia organized by
the States, and to deny to Congress the power to draft a citizen
into the army, or to receive his voluntary offer of services,
because he is a member of the State militia, is to deny the
power to raise an army at all; for, practically, all men fit for
service in the army may be embraced in the militia organization
of the several States. You seem, however, to suggest, rather
than directly to assert, that the conscript law may be
unconstitutional, because it comprehends all arms-bearing men
between eighteen and thirty-five years; at least, this is an
inference which I draw from your expression, 'armies composed of
the _whole_ militia of _all_ the States.' But it is obvious
that, if Congress have power to draft into the armies raised by
it any citizens at all (without regard to the fact whether they
are, or not, members of militia organizations), the power must
be coextensive with the exigencies of the occasion, or it
becomes illusory; and the extent of the exigency must be
determined by Congress; for the Constitution has left the power
without any other check or restriction than the Executive veto.
Under ordinary circumstances, the power thus delegated to
Congress is scarcely felt by the States.
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