Conscription History

Our Constitution adopted in 1789 gave Congress the "power to raise and support armies", but did not mention or prohibit conscription. This paper reflects my exploration of the history of the draft, complete with court opinions and personal opinions.

During the American Revolution the new state governments assumed the colonies' authority to draft for their short term militias but denied General George Washington's request to provide the central government the power to conscript. As the initial volunteering for the Continental Army subsided most states boosted enlistment by the use of enlistment bounties and holding an occasional draft but this resulted in producing more hired substitutes than actual draftees. There were dissenters and this resulted in several states recognizing the status of a group called conscientious objectors such as the Quakers, who on the grounds of conscience resist the authority of the state to compel them into military service.

During the War of 1812, President James Madison's administration was unable to enact national conscription. Daniel Webster denounced conscription as an attempt at "Napoleonic despotism". During the Civil War, in April of 1862 the Confederacy adopted the draft but it violated individual liberty and states' rights by including class-bound occupational exemptions which resulted in much discontent and resistance. In March, 1863 Congress adopted the Union Conscription Act (factually known as the Enrollment Act) and thought to avoid unpopular occupational exemptions by authorizing draftees to escape service by hiring a substitute or by paying the government a commutation fee of three hundred dollars. Peace democrats claimed it was a "rich man's war but a poor man's fight". New York Governor Horatio Seymour denounced the Conscription Act as unconstitutional which incited the populace and resulted in the deadly draft riots in New York City . Governor Seymour requested a court test of the constitutionality of the act, but this did not come about until December 1917, ten months prior to the end of WWI.

The beginning of WWI found our military on a skeleton basis, which resulted in the Selective Service Act of May 18, 1917, c. 15, 40 Stat. 76. Although by June 5, 1917, over 9.5 million men signed up, there was considerable opposition and 300,000 men evaded the draft and 4,000 were classified as conscientious objectors. In response to the opposition, Woodrow Wilson aimed the following statement at dissenters who questioned his war decision and the draft: "Woe be to the man that seeks to stand in our way in this day of high resolution when every principle we hold dearest is to be vindicated and made secure." Furthermore, the Wilson administration sponsored the Espionage Act (1917) and the Sedition Act (1918). Over two thousand people were prosecuted under these acts. The Supreme Court upheld the Espionage Act in Schenck v. United States; Baer v. United States, 249 U.S. 47 (1919), expressing the Supreme Court's opinion that in time of war the First Amendment could be restricted. In his opinion, Justice Oliver Wendell Holmes noted: "Free speech would not protect a man falsely shouting fire in a theatre and causing panic." and [If words] "are of such a nature as to create a clear and present danger that they will bring about the substantial evils that Congress has a right to prevent." Another case involved the publication of two anti-war and anti-government leaflets, Abrams et al. v. The United States, 250 U.S. 616 (1919), in which the Supreme Court upheld the Sedition Act as constitutional.

The first and only direct challenge of the constitutionality of the draft came about in December of 1917 in Arver et al v. United States, 245 U.S. 366 (1918). In this landmark case popularly known as the Selective Draft Law Cases, six defendants challenged the Selective Draft Law by making a broad-based constitutional attack. The highlights of their arguments and the Supreme Court's answers, upholding the act as constitutional, follow:

o Congress had no power to force men to fight - The Court answered "The power to exact enforced military duty at home or abroad by citizens of the United States was conferred upon Congress by the provisions of U. S. Const. art. 1, 8, empowering Congress to declare war and to raise and support armies, and authorizing it to make all laws which shall be necessary and proper for carrying into execution the powers expressly given to Congress".

o Draft laws exemption for religious belief violated the Constitution's proscription against the "establishment of religion" - The Court answered "The exemptions from military service in the strict sense made by the selective draft provisions of the Act of May 18, 1917 (40 Stat. at L. 76, chap. 15, Comp. Stat. 2044a), in favor of the members of religious sects as enumerated, whose tenets exclude the moral right to engage in war, does not violate the prohibition of U. S. Const. 1st Amend., against the establishment of a religion or an interference with the free exercise thereof".

o Violates the Thirteenth Amendment's prohibition of slavery - The Court answered "The law imposes neither slavery nor involuntary servitude. The Thirteenth Amendment was intended to abolish only the well-known forms of slavery and involuntary servitude akin thereto, and not to destroy the power of the Government to compel a citizen to render public service."

o It is repugnant to a free government and in conflict with all the great guarantees of the Constitution as to individual liberty - The Court answered "is neither repugnant to a free government nor in conflict with the constitutional guaranties of individual liberty. Indeed, it may not be doubted that the very conception of a just government and its duty to the citizen includes the duty of the citizen to render military service in case of need and the right of the government to compel it.

The nation's first Pre-War conscription act, The Selective Training and Service Act, was enacted in 1940 and was specified to run through 1945. Due to intense opposition from pacifists and isolationists the draftees were obligated to serve only one year and service was restricted to the Western Hemisphere and U.S. territories. In August, 1941 Congress voted to keep the one-year draftees in service beyond their term and after the attack on Pearl Harbor on December 7, 1941, Congress removed all geographical restrictions and extended the draft from men aged 21-35 to men aged 18-38.

The Selective Service Act continued to be renewed and discontent continued through the fifties and sixties via the United State's involvement (aka police actions) in the North Korean