Conscription in the U.S
Conscription in the U.S., often referred to as the draft, involves the government mandating military service from its citizens, primarily during times of war. The constitutionality of conscription has been a subject of legal scrutiny, particularly during significant conflicts like World War I and the Vietnam War. The Supreme Court has historically upheld the government's authority to enforce conscription, beginning with the unanimous decision in *Arver et al. v. United States* (1918), which affirmed Congress's power to compel military service. Over time, the Court's approach evolved, especially concerning conscientious objectors during the Vietnam War, examining the intersection of military service, religious beliefs, and the broader political context.
In cases such as *Gillette v. United States* (1971), the Court maintained a distinction between general opposition to war and legitimate religious objections, ultimately siding with the constitutionality of the Selective Service Act's exemption for specific beliefs. After the draft ended in 1973, legal challenges shifted focus, as seen in *Rostker v. Goldberg* (1981), which addressed gender discrimination in conscription policies. The Court upheld the exclusion of women from the draft, reflecting the military's combat role policies at the time. Throughout its history, conscription in the U.S. has raised complex legal and ethical questions, reflecting the tensions between national security and individual rights.
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Conscription in the U.S.
Description: Compulsory induction of persons into military service by the government.
Significance: The Supreme Court, which traditionally gives deference to the executive and legislative branches in matters relating to war, never invalidated a conscription statute.
Legal challenges brought before the Supreme Court to conscription statutes tend to ebb and flow with U.S. military action. Each new war or conflict, particularly if it is unpopular, brings to the Court a new set of draft cases. The first major test of the constitutionality of conscription occurred in the context of World War I.
In Arver et al. v. United States (1918), the Court addressed the constitutionality of the Draft Act of 1917 and unanimously upheld the statute. The Court held that Congress’s power to “raise and support armies” included the power to compel military service. The opinion dismissed, as obviously unsound, the argument that the Draft Act violated both the establishment clause and the free exercise clause.
During the Vietnam War, the Court gave more considered treatment to the arguments of religious conscientious objectors, while refusing to be drawn into the national debate over the legitimacy of the war itself. In a series of cases, most notably Massachusetts v. Laird (1970), the Court refused to grant certiorari to determine the general legality of drafting persons into the Vietnam War. A majority of the justices, over the strenuous objections of Justice William O. Douglas, believed that the constitutionality of the war, and hence the legality of the draft, was a “political decision” and that the Court should not interfere in matters of foreign policy and national security.
Gillette v. United States (1971) considered the arguments of petitioners who claimed that the Selective Service Act of 1967 violated both of the First Amendment’s religion clauses. The act exempted people from military service who, on the basis of a religious belief, are opposed to participating in any war. Petitioners opposed only unjust wars, and they considered the Vietnam War to be unjust. Justice Thurgood Marshall, in an opinion joined by six other justices, rejected the petitioners’ First Amendment claims and upheld the constitutionality of the act’s exemption clause on the grounds that it promoted a secular purpose (military effectiveness) and did not discriminate on its face against any religion.
With the end of the draft in 1973, the focus of the conscription cases accepted by the Court changed. In Rostker v. Goldberg (1981), the Court considered a due process challenge by several men to the exclusion of women from compulsory registration for conscription. The plaintiffs argued that the exemption of women was unlawful gender-based discrimination. The Court upheld the constitutionality of the exemption based on the military policy, then in place, of excluding women from all combat roles. (Since 1993 all combat positions, other than ground combat, are open to women.)
Bibliography
Chambers, John Whiteclay, II. To Raise an Army: The Draft Comes to Modern America. New York: Free Press, 1987.
Kohn, Stephen M. Jailed for Peace: The History of American Draft Law Violators, 1658-1985. Westport, Conn.: Greenwood, 1986.