States vs. Feds: The 10th Amendment Battle Over Conscription in the War of 1812

“The last of all oppressions”

That’s how Thomas Jefferson described the military draft. Because of widespread opposition to it, the federal government didn’t actively draft men into the military until the Civil War. But, during the War of 1812, it tried – and would have likely moved forward with the plan were it not for intense opposition from New England states.

BACKGROUND

The War of 1812 brought the issue of war powers into the spotlight, specifically federal control over militias. 

Federalists, particularly in the New England states, generally opposed “Mr. Madison’s war,” and they were less than enthusiastic about supplying troops for the cause. They argued that the federal government had no authority to demand militias deploy outside the borders of their states, particularly in offensive operations outside the borders of the United States. 

In response, several New England governors refused to supply troops.  

They justified their resistance on Tenth Amendment grounds, arguing that the federal government only has the authority to call forth the militia in specific cases outlined in Article I, Section 8 of the Constitution, and other power over the militia generally remains with the states.

By 1814, the war was not going well for the United States. The British invaded North America, and in August of that year, burned Washington D.C. Meanwhile, the U.S. faced a significant manpower shortage due to the refusal of states to send militia units. The growing unpopularity of the war also caused the pool of volunteer recruits to dry up. 

Congress had authorized the War Department to recruit 50,000 one-year volunteers. It only managed to sign up 10,000 men. The Army never reached half of its authorized strength.

THE ARMSTRONG PLAN

In late 1813, hoping to address the growing manpower shortage, Secretary of War John Armstrong proposed a plan to classify militia members by age, and enforce mandatory conscription from these groups in order of age from youngest to oldest. 

In a Dec. 5, 1813  letter to James Madison, Armstrong started by bemoaning the manpower shortages and urging him to embrace a conscription plan. He noted that the current recruitment process “failed & left us miserably short of the legal provision. To rely on it therefore will not be wise. ”

Armstrong continued, with an outline of his plan.

“As a substitute for it, or auxiliary to it, I would propose adopting the mode which was resorted to during the War of the revolution. Classing the militia of the U.S. & drawing from each class of 20 men, one man for the War. …. The public mind is I think prepared for vigorous measures & this should be made the foundation stone.”

Secretary of State James Monroe mentioned the plan in unflattering terms in a Dec. 27, 1813, letter to Madison, writing he had been informed “that Genl. Armstrong had adopted the idea of a conscription, and was engaged in communications with members of Congress, in which he endeavourd to reconcile them to the measure, stating that the militia could not be relied on, & that regular troops could not be enlisted.”

Monroe opposed the plan. His objections appear to have had more to do with political considerations than a principled objection to conscription under the Constitution. Monroe told Madison that the Secretary of the Navy “was fearful, should such an idea get into circulation, that it would go far to ruin the admn.”

Monroe reiterated this concern later in the letter, writing, “It is painful to me to make this communication to you, nor should I do it, if I did not most conscienciously believe, that this man if continued in office, will ruin not you and the admn. only, but the whole republican party and cause. He has already gone far to do it, and it is my opinion that if he is not promptly removed he will soon accomplish it.” 

Monroe continued, “The mere project of a conscription, adopted & acted on without your approbation or knowledge, is a sufficient reason” for removing Armstrong from his position.

While Madison didn’t take Monroe up on that recommendation at the time, in September 1814, he removed Armstrong as Secretary of War due to his mishandling of the defense of Washington D.C., and the fact that he had downplayed the threat of a British attack on the capital. He appointed Monroe in his place, who served as both Secretary of War and Secretary of State for the balance of the war.

However, this change in leadership did nothing to alleviate the Army’s manpower shortage, and it became Monroe’s problem.

THE MONROE PLAN

Senate Military Affairs Committee chair William Giles sent a letter to Monroe, asking for suggestions on improving the state of the army.

Monroe’s response dated Oct. 16 asserted that to bring the war to a successful conclusion, “We must not be contented with defending ourselves,” but must push the war into Canada.

“It follows from this view of the subject that it will be necessary to bring into the field next campaign not less than 100,000 regular troops.”

Despite his opposition to Gen. Armstrong’s draft scheme, Monroe went on to outline a conscription plan for raising the requisite manpower.

“Let the free male population of the United States between 18 & 45 years be formed into classes of 100 men each, and let each class furnish four men for the war, within thirty days after the classification, and replace them in the event of casualty. … If any class fails to provide the men required of it within the time specified, they shall be raised by draft on the whole class, any person thus drafted being allowed to furnish a substitute.”

Monroe insisted that “this plan will be efficient cannot be doubted. It is evident that the men contemplated, may soon be raised by it.”

Monroe anticipated constitutional objections from New England governors and federalists in Congress but insisted conscription was within the bounds of the Constitution.

“Congress have a right by the Constitution to raise regular armies, and no restraint is imposed on the exercise of it, except in the provisions which are intended, to guard generally against the abuse of power, with none of which does this plan interfere.”

Monroe said that it “would be absurd to suppose that Congress could not carry this power into effect, otherwise than by accepting the voluntary service of individuals.”

He was advancing a “necessary and proper” argument for conscription.

“An unqualified grant of power gives the means necessary to carry it into effect. This is an universal maxim, which admits of no exception. Equally true is it that the conservation of the state is a duty paramount to all others. The commonwealth has a right to the service of all its Citizens, or rather the Citizens composing the commonwealth, have a right collectively and individually to the service of each other, to repel any danger which may be menaced. The manner in which the service is to be apportioned among the Citizens, and rendered by them, are objects of legislation. All that is to be dreaded in such case, is, the abuse of power, and happily our Constitution has provided ample security against that evil.”

While Monroe appeared to favor this complex classification plan, he also proposed three other optional plans for consideration.

• A classification of the militia and an extension of their terms of service to two years.
• Exempt every five men from militia service, who shall find one to serve for the war.
• Adhere to the present recruiting system with an augmentation of the monetary bounty in land grants.

THE DRAFT BILLS

Monroe wasn’t the only person pushing for a draft. Former congressman and Virginia politician John Nicholas Jr. sent Madison a letter urging him to consider a conscription plan, writing, “The getting of soldiers is a work of great difficulty – it seems as if we were brought to the choice between short enlistments and drafting.”

“If the drafting could be general enough to take in all who were able to hire a substitute as well as those who are capable of doing personal service, I believe it would be approved by the people.”

On Nov. 5, 1814, Giles introduced a bill in the Senate that incorporated many aspects of Monroe’s first plan, but significantly, it also proposed creating classifications within the existing militia structure per Monroe’s second plan instead of classifying the entire male population. In effect, it would have made the militia system part of the federal Army – raising the very constitutional objections Federalists had voiced when Madison had called the militias into federal service in the first place.

On the House side, a separate proposal known as the Troup Bill was introduced. It was a modified version of the classification system in Monroe’s first plan, but it didn’t authorize a draft. Instead, any of the 25 classes that failed to supply a quota of volunteers would be taxed, proportional to wealth. The tax would be sufficiently high to pay for volunteers. 

As historian Jeffery Hummel explained it, “The Troup Bill would have established a kind of primitive decentralized income tax to finance a volunteer army. It was an alternative to conscription that the militias of some states had tried during the Revolution.”

The Senate approved the Giles bill on Nov. 22. The House abandoned the Troup Bill and took up Giles’ legislation where it ran into intense opposition by New England Federalists led by Daniel Webster. They deemed it an “abominable doctrine” with “no foundation in the Constitution.”

Federalists insisted that the federal government only had the authority to raise an army through voluntary enlistment, and they argued that supporters of the draft plan who pointed to conscription of militia during the War for Independence were misguided since it wasn’t a draft imposed by Congress; it was a draft by various states. 

WEBSTER’S SPEECH

In an impassioned speech on the House floor, Daniel Webster argued that even if Congress had the power to enact a draft, it lacked any constitutional authority to enforce such a law.

“A military force cannot be raised in this manner but by the means of military force. If [the] administration has found that it cannot form an army without conscription, it will find, if it ventures on these experiments, that it cannot enforce conscription without an army. The government was not constituted for such purposes. Framed in the spirit of liberty and in the love of peace, it has no powers which render it able to enforce such laws. The attempt, if we rashly make it, will fail; and having already thrown away our peace, we may thereby throw away our government.”

Webster set it up as a rhetorical question.

“Is this, sir, consistent with the character of a free government? Is this civil liberty? Is this the real character of our Constitution? No sir, indeed it is not. The Constitution is libelled, foully libelled. The people of this country have not established for themselves such a fabric of despotism.”

He went on to assert, “The operation of measures thus unconstitutional and illegal ought to be prevented by a resort to other measures which are both constitutional and legal.”

And he insisted that should the federal government attempt to impose a military draft, the states should interpose to stop it.

“It will be the solemn duty of the State governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power. These are among the objects for which the State governments exist.”

STATE OPPOSITION

New England state governments who had previously resisted federalization of their militias also vocally opposed the measure.

The Connecticut legislature formally voiced their objection to the draft legislation, passing a resolution condemning the bill, calling it “not only intolerably burdensome and oppressive, but utterly subversive of the rights and liberties of the people of this state, and the freedom, sovereignty, and independence of the same, and inconsistent with the principles of the constitution of the United States.”

The resolution went on to assert that it was “the imperious duty of the legislature of this state to exert themselves to ward off a blow so fatal to the liberties of a free people.”

It then authorized the governor to immediately call the legislature into session if the “bill aforesaid, or any other bill on that subject, containing the principles aforesaid, shall be adopted, and assume the form of an act of Congress.”

CONFLICT RESOLVED?

Despite the opposition in Congress by Webster and his Federalist Party allies, the House also passed the Giles measure with some added amendments. While the lower chamber passed the conscription bill, those amendments may have played a part in the bill never being enacted.

Differences in the length of service became a significant sticking point between the House and Senate. The Senate wanted a 2-year term of service whereas the House version only mandated one year. 

The bill went to a conference committee on Dec. 22, and the issue was put on hold until after the Christmas recess. By then, the war was over.

The U.S. and Great Britain finalized a peace treaty on Dec. 24, rendering the conscription bill unnecessary.

While the 1814 conscription bill wasn’t enacted, the debate was never fully resolved, and while the Federalist constitutional arguments were compelling, they weren’t widely embraced.

The U.S. would turn to conscription during the Civil War.

Tags: conscription, Daniel Webster, Interposition, James Madison, military-draft, War of 1812

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