John Remington Graham
Counselor at Law
[Editor’s note: When Jack shared his letter to Amy Klobuchar, I knew it was perfect for this blog and that many will find it of extreme interest, especially juxtaposing the letter with his Note to the file, which was not included in nor part of his previous correspondence with her. I am publishing this from his private records. But I must admit that, in my opinion, he has her pegged as nicely as could be.]
180 Haut de la Paroisse
Quebec G0S 1Z0 Canada
July 23, 2021
Hon. Amy Klobuchar
United States Senate
Washington D. C. 20520 U. S. A.
In re: S. 4049 (116th Congress) National Defense Appropriation Act for the Fiscal Year 2021
My dear Senator,
In order to avoid repetition, I enclose a copy of my letter of the 15th of February earlier this year, including a copy of my current résumé which I have used since my retirement after more than fifty years in the practice of law, including service as a public defender in state and federal courts, a law professor in an accredited institution, and a county attorney in Minnesota.
I write now about the recent vote in a senate subcommittee to register women for the draft from and after 2021. I do not mind that this amendment has been added, notwithstanding the silly ideological reasons advanced in support of it. The 19th Amendment prohibits denial of the right to vote on account of sex (which refers to reproductive organs, not gender which is a convention of grammar). In the wake of the adoption of the 19th Amendment, the United States Supreme Court expounded the revolutionary implications of the new article in Adkins v. Children’s Hospital, 261 U. S. 525 at 553 (1923), so as to eradicate the special protections of women as delicate creatures, and to make them full equals of men in the work place, as has been reaffirmed in the context of military training and service in United States v. Virginia, 518 U. S. 515 at 532-533 (1996). All legal distinctions between men and women are now presumed unconstitutional, and are perhaps allowable, if at all, only under very limited circumstances. The most satisfactory reason is that the right to vote was at common law the right of a freeholder who by definition was a freeman. Hence, prohibited denial of the right to vote is presumed also to prohibit denial of all other rights of freemen. Discrimination on account of sex is thus for all practical intents and purposes unlawful in the United States, and the impact has been good, because it has increased the intelligence of the work force, and made the work place more agreeable. It is, therefore, clear that Congress can register women for compulsory military service, and almost certainly cannot register one sex but not the other for such purposes.
My objection to the recent proposal for registering women for the draft is that the registration is preparatory for conscription to raise armies which is grossly unconstitutional, and hopelessly unworkable as we learned the hard way during the Vietnam War, at which time I defended hundreds of young men who refused to be drafted to fight in the armies of the United States in southeast Asia. I defended many of them on various technical grounds of administrative law, and all of them on constitutional grounds with which you are probably not familiar. Suffice it to say that, in light of the constitutional argument, the conservative Eighth Circuit conceded grave doubts that Congress has the constitutional prerogative to conscript armies, as appears in United States v. Crocker, 420 F. 2d 307 (8 Cir. 1970), which deprived prosecutions of draft resisters of moral authority. In the end all of my clients were acquitted or pardoned, and a few of them settled with their families in Canada. Not far from where I live in Quebec, there is a large community of American citizens, now Canadian citizens speaking French, who fled from the United States in order to avoid prosecution for draft evasion in the late 1960s and the early 1970s. Members of that community here in Quebec include former clients and old friends of mine. I came to understand at the time that the war was perpetrated by principals and accessories behind the murder of John F. Kennedy, including Lyndon B. Johnson who foolishly thought he could win the war and promote his “great society” at the same time. The war was never authorized by Congress in the Tonkin Gulf Resolution, and it was fed by an immoral system of conscription which I fought with all my heart not long after I graduated from the law school at the University of Minnesota, and was admitted to the bar in our State. The bitterness of that experience prepared my mind to accept realities as terrible as the rigging of the Presidential election of 2020, and the major media who speak for Wall Street and the Bilderberg Group which want one-world government, banking, and currency, and destruction of the United States. Yes, I believe in conspiracy theories, using reasoning proposed by Abraham Lincoln in his “House Divided” speech. The government of the United States is not trustworthy.
At the time of the First World War, the United States Supreme Court handed down a bigoted, warped, flawed decision in Selective Draft Law Cases, 245 U. S. 366 (1918), in which it was held that Congress has constitutional power to conscript armies for foreign wars. I have written a detailed critique of that decision in A Constitutional History of the Military Draft, Ross & Haines, Minneapolis, 1971, including vast historical research which I have subsequently expanded in further works. Permit me to sketch out my argument for you.
In the eighth section of the first article, the United States Constitution provides that Congress shall have power to raise armies, and to call forth the militia to execute laws of the Union, suppress insurrections, and repel invasions, while reserving certain important powers over the militia in the several States. I have done a lot of research over some years on the distinction between armies and militia, confirming the conclusion of the famous constitutional scholar Edward S. Corwin that the “only type of standing army known to the Framers was a mercenary, volunteer force, and the only compulsory type of military service known to them was service in the militia, which was confined to local and limited purposes, as it has been in medieval England.” — The Constitution and What It Means Today, Atheneum, 1965, p.71. The limitations on the use of militia go back to the Statute of 1 Edward III, Chapter 5 (1327). If you read these historical facts into the text of the United States Constitution, it is clear enough that Congress was authorized to enlist, but cannot conscript armies, and that Congress has power to impose compulsory military service only by organizing, arming, disciplining, and calling forth the militia.
The argument which I have just outlined was used by the Hartford Convention of 1814-1815, which threatened secession from the Union if the hawks in Congress drafted armies for an invasion of Canada. The formation of the convention induced President James Madison to call for repentance, fasting, and prayer, as appears in Presidential proclamations, and to sue for peace without satisfaction on impressment, which brought the War of 1812 to an end in the Treaty of Ghent: the facts are carefully recorded in Theodore Dwight’s History of the Hartford Convention, Russell, Odiorne & Co, Boston, 1833. The same argument induced a majority of the Pennsylvania Supreme Court to declare drafting armies unconstitutional at the time of the American Civil War in stunning, erudite opinions which are recorded in Kneedler v. Lane, 45 Pa. St. 238 at 240-272 (1863).
And so conscripting armies for the Vietnam War was unconstitutional. Draft resistance brought the war to an end as we witnessed in our time. Besides, if Congress could conscript armies, all the constitutional limitations on preparation and activation of the militia would be idle language, which would ignore rules on construction noted by Alexander Hamilton in his Opinion on the Bank, and recited in the first book of Blackstone.
Hence, Congress cannot conscript armies today, and cannot register men or women for such conscription. I urge you, therefore, to attempt striking all provisions for such registration in the pending bill for the Defense Appropriation Act for the Fiscal Year 2021. The government of the United States must have some purpose aside from causing mischief and oppression, although these days one wonders. I am
Yours very truly,
Note to the file: Amy Klobuchar was an unethical prosecutor, a bad lawyer, and a mediocre politician who advanced in life, not on her own merits, but because of the name of her father, a famous journalist. I can do nothing about this regrettable situation. She is the senior senator from Minnesota to whom I was obliged to petition under the circumstances, and I had to make a proper record of my protest. — J. R. G., July 24, 2021,