Jefferson Davis, The Rise and Fall of the Confederate Government

[438] the nature of things that armies raised by the Confederacy can “be composed of the whole militia of all the States.” The militia may be called forth in whole or in part into the Confederate service, but do not thereby become part of the “armies raised” by Congress. 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. At the present moment, when our very existence is threatened by armies vastly superior in numbers to ours, the necessity for defense has induced a call, not for “the whole militia of all the States,” not for any militia, but for men to compose armies for the Confederate States.

Surely there is no mystery in this subject. During our whole past history, as well as during our recent one year's experience as a new Confederacy, the militia “have been called forth to repel invasion” in numerous instances, and they never came otherwise than as bodies organized by the States with their company, field, and general officers; and, when the emergency had passed, they went home again. I can not perceive how any one can interpret the conscription law as taking away from the States the power to appoint officers to their militia. You observe on this point in your letter that, unless your construction is adopted, “the very object of the States in reserving the power of appointing the officers is defeated, and that portion of the Constitution is not only a nullity, but the whole military power of the States, and the entire control of the militia, with the appointment of the officers, is vested in the Confederate government, whenever it chooses to call its own action ‘raising an army,’ and not ‘calling forth the militia.’ ”

I can only say, in reply to this, that the power of Congress depends on the real nature of the act it proposes to perform, not on the name given to it; and I have endeavored to show that its action is really that of “raising an army,” and bears no semblance to “calling forth the militia.” I think I may safely venture the assertion that there is not one man out of a thousand of those who will do service under the conscription act that will describe himself while in the Confederate service as being a militiaman; and, if I am right in this assumption, the popular understanding concurs entirely with my own deductions from the Constitution as to the meaning of the word “militia.”