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Constitutional Topic: The Draft


The Constitutional Topics pages at the 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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