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.

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.

In recent years, the question, “Why do only men have to register for the
draft?” has arisen. The answer is basically historical, where men fought the
wars while women stayed home to tend to the nation’s domestic needs. The
acceptance of women into the military in the late 20th century had largely
dispelled any myth that women cannot serve as effective combat troops, though
women are still restricted from holding some positions in the military. In
addition, other militaries, such as that of Israel, where women serve in all
roles, further dispel this myth. The change to add women to the draft will,
however, only come about with a sea change in American perception and law.

The restriction of the draft to just men was challenged in the Supreme Court
in Rostker v Goldberg (453 U.S. 57 [1981]). In this case, men brought
suit against the SSS, because women were not included in the draft. The
Supreme Court ruled against the men, stating that the sole purpose of draft
registration is the accumulation of a pool of names of eligible men to serve in
combat. Because women were excluded from combat by the armed services, the
draft registration as it stood met the need. The Court also said that since
the Congress is given exclusive constitutional authority to raise armies, it
was disinclined to overrule Congress on this point. The last time the SSS
notes that the issue was taken up was in 1994. It concluded that though women,
at that time, made up 16 percent of the armed force personnel, and the combat
roles for women were expanding, the need to register women for the draft was
still not sufficient. It noted that such expansion might be prudent in the
future.

Another popular question is, “What if I’m religiously opposed to military
service? Doesn’t the 1st Amendment protect me?”
In a way, the 1st Amendment does protect you from the draft. However, it would
not protect you from service. In the event of a draft, you must appear before a
draft board when called. At that point, a person can declare that military
service is counter to his religious or moral beliefs. He can also declare that
combat service is counter to his religious or moral beliefs. In the former
case, the draft board can defer the person to serve in a non-military role. The
person will likely still be drafted, but may serve in a domestic service unit.
In the latter case, the person can be deferred to a non-combat role in the
military, such as a cook or secretary. This form of objection to service is
called conscientious objection. People with a conscientious objection to
service must be able to show the local draft board that the objection is
long-lasting and sincere. Witnesses may have to be called to prove the impetus
for the objection is not simply fear of serving in combat.

There has also been some question raised about the draft in regards to the
13th Amendment. Surely the draft, for at least
some, constitutes involuntary servitude, prohibited by the 13th. The only
exception the 13th contemplates for slavery or involuntary servitude is as a
punishment for a duly convicted crime. However, the courts have ruled that the
intent of the 13th was never to abolish the draft, and that serving in the
military, even against your will, is not involuntary servitude. These “duties
owed to the government” are exempted from 13th Amendment protection. In
Butler v Perry (240 US 328 [1916]), the Supreme Court wrote:

[The 13th Amendment] introduced no novel doctrine with respect of
services always treated as exceptional, and certainly was not intended to
interdict enforcement of those duties which individuals owe to the state, such
as services in the army, militia, on the jury, etc. The great purpose in view
was liberty under the protection of effective government, not the destruction of
the latter by depriving it of essential powers.

Butler did not directly concern the draft. It addressed laws that
required able-bodied men to work on state roads for their maintenance when
called by the state. However, its implications for the draft are clear and a
case decided just two years later (Arver v US [245 US 366 {1918}])
set it in stone:

[A]s we are unable to conceive upon what theory the exaction by
government from the citizen of the performance of his supreme and noble duty of
contributing to the defense of the rights and honor of the nation as the result
of a war declared by the great representative body of the people can be said to
be the imposition of involuntary servitude in violation of the prohibitions of
the Thirteenth Amendment, we are constrained to the conclusion that the
contention to that effect is refuted by its mere statement.

The modern draft has its origins in the Civil War, when both the United
States and the Confederate States instituted a draft. Prior to that time, the
primary source of military might in the United States was the militia, which
was maintained by the states. The colonies raised a small paid force to fight
the Revolutionary War, but could not muster up enough troops to last the entire
war. In the end, the colonies relied heavily on the state militias to
prosecute the war. Efforts by President Washington and his successors to have
Congress authorize a draft went unheeded, as there was a general fear of a
standing army of any size.

At the outbreak of the War of 1812, Congress tried to offer incentives to
men to join federal forces, but the enrollment was inadequate and again the
state militias were tapped. In the Mexican war, the United States had better
success recruiting troops, but General Winfield Scott’s advance on Mexico City
was stalled as troops with a one-year enlistment period did not re-enlist. The
General had to wait for fresh troops to arrive.

At the outbreak of the Civil War, each side started by offering enlistment
incentives, but because of large peaks in enlistment, and subsequent expiration
of the enlistment periods, both sides suffered from loss of men when
re-enlistment attempts failed. Desperate for men, the Confederacy started a
draft in April 1862. Three years of service were required of all white men
aged 18 to 35. The law had several exceptions written into it, including a
buy-out option which led to disgruntled soldiers angry at richer people able to
buy their way out. Later the enlistment age was expanded to 17 to 50, and even
slaves were conscripted by the last year of the war.

In the North, where the supply of men was greater, the draft was delayed a
little longer, but by March 1863, it was necessary. The Northern system was as
maligned as that of the South as substitutes could be “hired” for $300 and
exemptions to selection could also be bought. The ages of conscriptees was set
at 20 to 45. In New York, the governor, Horatio Seymour, unilaterally declared
the draft unconstitutional. Opposition led to draft riots in New York City,
and New York regiments had to be recalled from the field to quell the unrest.
The Governor, seeing the result of his opposition, finally urged New Yorkers to
participate in the draft.

For World War I, Congress first created the Selective Service Act, which
established the system of local draft boards. All men aged 21 to 30 were
eligible for the draft. A similar system was created in 1940 for all men aged
21 to 35. All were required to register for the draft, and draftees are sent
to induction centers. All of this was prior to the attack on Pearl Harbor, and
amounted to the United States’ first peacetime draft. Another draft for the
Korean War called up men aged 18 1/2 to 35, but exempted World War II veterans.
Though widely protested and unpopular, the Vietnam War prompted the last draft
in American history, beginning in 1969. This draft ended in 1973. Since then,
all personnel entering the military have done so voluntarily.

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