Courtroom Wars: Constitutional Battles over Conscription in the Civil War North

In February 1863, Congress considered a bill to create for the first-time conscription at the national level. Democratic politicians vigorously protested that the proposed act was unconstitutional and destroyed the state militias. When Congress passed the Enrollment Act, commonly known as the “Conscription Act,” on March 3, 1863, outcry from Democrats about the unconstitutionality of national conscription immediately followed. In New York and Pennsylvania, Democratic newspaper editors and politicians decreed the act the worst among the Lincoln war measures in threatening to subvert the constitutional republic and to transform the United States into a despotism under the control of an autocratic President. The act was “utterly repugnant” to the Constitution and the structure of federalism that left states to control their own militias. Quickly, these constitutional criticisms transformed into court challenges to the act. These challenges were usually based on drafted soldiers seeking writs of habeas corpus to be released from federal authority in the form of the provost marshal. New York state courts focused most often on the question of state jurisdiction, with New York’s judges divided on the meaning of the Supreme Court precedent of Ableman v. Booth and whether it precluded state court jurisdiction over questions concerning the constitutionality of Congressional acts by writ of habeas corpus. One judge, John McCunn of the City Court of New York and a well-known Democrat connected to Tammany Hall, issued an opinion in the midst of the New York City Draft Riots claiming that the act was unconstitutional, but New York’s higher courts never answered the question. In Pennsylvania, both federal and state courts decided on the constitutionality of conscription. Federal District Court Judge John Cadwalader upheld the power to conscript in two 1863 decisions, but frustrated the Lincoln administration both by maintaining a role for federal judges to review the decisions of the Boards of Enrollment and his issuing of writs of habeas corpus to release soldiers. The Pennsylvania Supreme Court issued the most important case on the subject in November 1863, Kneedler v. Lane, finding the Conscription Act constitutional. The constitutional conservative victory was short-lived, as the decision was overturned two months later. As the history of twentieth-century conscription cases evidences, it would be the last time the courts seriously considered the constitutional argument against conscription