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I agree with the founders.
The Tenth Amendment clearly affirms that the federal government has only the powers granted to it, and neither the history of conscription nor a century's worth of Supreme Court waffling can change the fact that direct federal conscription is unconstitutional or, if you prefer, an extra-constitutional arrangement that may have been necessary during the world wars, but is not for that reason a valid precedent now.
I was surprised to read this as the resistance to the draft was exceptionally strong in my era, and I hadn't recalled any significant challenges to its constitutionality.
http://www.usconstitution.net/xconst_A1Sec8.html#C12U.S. Constitution Online
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Constitutional Topic: The Draft
The Constitutional Topics pages at the USConstitution.net site are presented to delve deeper into topics than can be provided on the Glossary Page or in the FAQ pages. This Topic Page concerns the draft. The draft is seen in the Constitution at Article 1, Section 8, Clause 12.
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The Constitution does not directly mention the word "draft" or even the older "conscription," but its authorization for the Congress to "raise and support Armies" is a clear indication of the same concept - to use the resources of the nation to create or man an army.
Today, the draft in the United States is administered by the Selective Service System. Although at the time of this writing the U.S. does not have an active draft, the SSS is in operation and actively campaigns to get young men to register so that should a draft ever be needed, it has ready lists of who is eligible. According to the SSS, registration for the draft is required of all men ages 18 through 25. Forms to register are available at all U.S. Post Offices, as well as online. Failure to register can result in a fine of up to $250,000 and disqualification from many federal programs, such as student aid. This system has been in place since 1980.
Several questions concerning the draft arise each time the United States is threatened with military action, or the United States threatens military action. The first, and most basic, is: "Is the draft constitutional?" The plain answer to this, noted in the introductory paragraph, is that it is. Conscription is clearly anticipated by the Constitution. The Constitution did impose one small but key restriction on a conscripted army - any allocation of funds to support the army can only have a life of two years. Any allocation thereafter must be reauthorized by Congress. Since the House of Representatives is elected every two years, this is a safeguard against runaway armies. If the people are not satisfied with the way a draft is being run, they can elect a House that will not authorize further funding
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U.S. Constitution - Article 1 Section 8
Article 1 - The Legislative Branch
Section 8 - Powers of Congress
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The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
