IN 1864, a clerk in the Confederate war department raged in his diary that conscription has exempted "40,000 landowners, and the owners of slaves, [who] are at their comfortable homes, or in comfortable offices, while the poor and ignorant are relied upon to achieve independence."

The Confederacy never got a chance to write a fairer draft law. If it had, it might have found itself in the position of the 96th Congress.

No slave owners sit in the 96th Congress, nor many owners of agricultural factories. Styles change. During the war in Vietnam, privilege accrued to people who went to college. Of the 103 men in the 96th Congress who were subject to the Vietnam-era draft, 94 hold at least a bachelor's degree. Four of the 103 served in Vietnam.

Now that President Carter has asked Congress to reinstitute registration for the draft, the Vietnam generation in Congress at last directly confronts the inequities of a system they themselves, in some cases, successfully manipulated.

Sen. Wiliam S. Cohen (R-Maine) is a member of the Senate Armed Services Committee. In the '60s, he says, "I was exempt [from the draft] -- college deferments and so forth, all the way through." He adds, "I don't think we will have that again, or should have that again."

Rep. Bob Carr (D-Mich.) is a member of the House Armed Services Committee. In the '60s, he says, "I was in the last year of graduate deferments. I didn't turn 26 [the draft cutoof age] in my last year in law school, but my law school training taught me the ins and outs of the Selective Service administrative procedure, and through appealed delays, I did turn 26."

Cohen and Carr are not isolated cases. In their book, "Chance and Circumstance," Lawrence M. Baskir and William A. Strauss reported that the Vietnam generation contains 26.8 million males born between June 30, 1939, and June 30, 1954. Some 10.9 million, or 40.8 percent, performed military service either on active duty or in reserve units. Among Vietnam-era members of Congress, 37, or 35.9 percent, served in a branch of the military.

It wasn't always that way. There are 89 male senators born before June 30, 1939. Because of World War II, Korea and the peacetime draft of the '50s, 62 of the 89, or 69.7 percent, have seen active duty. Two of the 10 Vietnam-era senators have been on active duty.

In spite of the generational disparity, Vietnam-era members of Congress have so far failed significantly to distinguish themselves from their older colleagues on draft-related votes.

Twice in 1979, the question of draft registration came before the House of Representatives. On June 19, the House adopted the rule for a defense procurement bill to which a draft registration provision had been attached. The rule passed 219 to 158 (50.5 percent of all 434 representatives voting aye.) The 93 Vietnam-era congressmen split 44 to 33 (47.3 percent to all 93 voting aye.)

Then, after the antidraft groups mounted a grassroots campaign during the August recess, the House on Sept. 12 stripped the registration provision from the procurement bill by a vote of 259 to 155 (59.7 percent of all representatives voting aye). The Vietnam generation in the House split 59 to 32 (63.4 percent voting aye.)

That record suggests the Vietnam generation in Congress will go along with whatever the majority in Congress decides to do about the draft. Or perhaps it means that no issue has arisen sufficiently clearcut to reveal differences between the Vietnam generation in Congress and their older colleagues.

Cranking up the draft would seem to be such an issue. Last summer I talked to a number of Vietnam-era members of Congress. They all agreed that because of the inequities of the Vietnam draft, they bear a special responsibility to see that any new draft is as fair as possible.

They all predicted that future inductions, if and when they occur, will be governed by lottery. A few of them, on both the left and the right, said they were intrigued by the possibility of an all-inclusive fairness in a scheme of universal, mandatory service.

Still, not all forms of services are equal. Even under a lottery, the better educated and the more highly skilled would be able to volunteer for less onerous duty than carrying a rifle.

Speaking to that -- the understandable tendency of the privileged to duck their share of dirty jobs -- Rep. Paul Trible (R-Va.), who sits on the House Armed Services Committee, conceded that "it would be mind-boggling to organize and administer a program" that distributed risk equitably.

Yet that may be precisely what's required if the Vietnam generation in Congress is to help reinstate the draft. At the point of stepping forward and swearing an oath of allegiance to the Constitution, the draft exploits a willingness to serve.

Rep. Don BAILEY (D-Pa.) received a Silver Star and two Bronze Stars for valor in the course of demonstrating his willingness to serve in Vietnam -- he volunteered for infantry officer's candidate school because "I thought the most valuable thing to learn was leadership, and artillery doesn't have that" -- nowadays "probably indicts my judgment."

Baily wouldn't hesitate to vote for a draft, however, if he thought it necessary. He knows something about leadership that David Halberstam described in his novel, "One Very Hot Day":

"There has been an ambush, a brief and bitter one, and Thuong at first had been paralyzed like everyone else, sure that he was going to die there; but he had in those first minutes seen something he would never forgive and never forget . . . Dang taking off his officer's pips. If you are going to wear the pips in the great halls of Saigon, he thought, you must wear then in the U Minh forest."

A punctured eardrum kept Rep. Thomas J. Downey (D-N.Y.) out of the Army, but not out of the streets. The activists of the '60s, he told his colleagues in the House last September, knew very well who served in Vietnam: " . . . the people who died in that war, who fought and who were injured in that war, tended to be black and poor. That is a reality."

The Vietnam generation in Congress tends to be white, well-off and mostly male. As the draft prepares another ambush, it's their turn to wear the pips.