Primary Source: The Evolution of the Draft
The latest incarnation includes women.
On February 22, 2019, the Federal District Court in the Southern District of Texas ruled that requiring only men to register for the Selective Service was unconstitutional, and that women must now also register. This is only the latest iteration in the long history of military conscription in the United States.
It’s true that no draft has been held in the U.S. since 1972, but the Selective Service is still intact in case the draft should ever need to be reinstated. In our selection of historical primary sources relating to conscription, we will start with the Constitution and finish with this year’s ruling.
How should the military be populated? Who should be required to register for the Selective Service? To what extent do American ideals support the notion of a draft?
The Constitution allows the formation of a military.
During the Revolutionary War, the Continental Congress found it difficult to recruit and retain troops in the Continental Army. Six years after the end of the conflict, the framers drafted important powers into the Constitution.
Article 1, Section 8: The Congress shall have Power . . .
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
Daniel Webster opposes conscription in 1814.
Each colony had used conscription to fill the ranks of the Continental Army during the Revolutionary War, with varying levels of success. The War of 1812, however, gave the federal government its first chance at raising a military itself. But when President James Madison and his Secretary of War James Monroe attempted to create a national draft in order to invade Canada, they came under harsh criticism from a young Congressman from New Hampshire, Daniel Webster, who spoke out against it on the House floor.
Is this, Sir, consistent with the character of a free Government? Is this civil liberty? Is this the real character of our Constitution? No Sir, indeed it is not. The Constitution is libeled, foully libeled. The people of this country have not established for themselves such a fabric of despotism. They have not purchased at a vast expense of their own treasure and their own blood a Magna Carta to be slaves.
Where is it written in the Constitution, in what article or section is it contained, that you may take children from their parents, & parents from their children, & compel them to fight the battles of any war, in which the folly or the wickedness of Government may engage it? Under what concealment has this power lain hidden, which now for the first time comes forth, with a tremendous & baleful aspect, to trample down & destroy the dearest rights of personal liberty? Who will show me any constitutional injunction, which makes it the duty of the American people to surrender everything valuable in life, & even life itself, not when the safety of their country & its liberties may demand the sacrifice, but whenever the purposes of an ambitious & mischievous Government may require it?
Sir, I almost disdain to go to quotations & references to prove that such an abominable doctrine has no foundation in the Constitution of the country. It is enough to know that that instrument was intended as the basis of a free Government, & that the power contended for is incompatible with any notion of personal liberty. An attempt to maintain this doctrine upon the provisions of the Constitution is an exercise of perverse ingenuity to extract slavery from the substance of a free Government. It is an attempt to show, by proof & argument, that we ourselves are subjects of despotism, & that we have a right to chains & bondage, firmly secured to us & our children, by the provisions of our Government.
President Lincoln attempts a draft in New York City.
In 1863, three years into the Civil War, the Union was on its heels. After a string of victories, the Confederates moved through Maryland and into Pennsylvania, dangerously close to Washington D.C. In desperate need of men, President Lincoln called for a draft.
New Yorkers respond with a vengeance.
New York was a destination for immigrants, especially Germans and Irish, who learned they were being asked to fight for their new country. This angered White draftees who were afraid that Blacks—who were excluded from the draft as they weren’t considered citizens — would take their jobs. On July 13, angry men threw stones, set buildings on fire, and attacked Black residents. The riot lasted four days, with an estimated 119 deaths.
Congress fulfills President Wilson’s needs.
When the U.S. was pulled into World War I in 1917, President Woodrow Wilson had hoped to raise a volunteer military of 1 million men. When he only got 73,000, Congress passed the Selective Service Act. By the end of 2018, 24 million men were registered.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in view of the existing emergency, which demands the raising of troops in addition to those now available, the President be, and he is hereby, authorized —
First. Immediately to raise, organize, officer, and equip all or such number of increments of the Regular Army provided by the national defense Act approved June third, nineteen hundred and sixteen, or such parts thereof as he may deem necessary; to raise all organizations of the Regular Army, including those added by such increments, to the maximum enlisted strength authorized by law. . . .
Third. To raise by draft as herein provided, organize and equip an additional force of five hundred thousand enlisted men, or such part or parts thereof as he may at any time deem necessary. . . .
SEC. 5. . . . and any person who shall willfully fail or refuse to present himself for registration or to submit thereto as herein provided, shall be guilty of a misdemeanor and shall, upon conviction in the district court of the United States having jurisdiction thereof, be punished by imprisonment for not more than one year, and shall thereupon be duly registered.
The Supreme Court upholds the Selective Service Act.
Opponents to conscription challenged the law in court, claiming that the draft was a violation of the Thirteenth Amendment’s prohibition of slavery and involuntary servitude. In 1918 the case went before the Supreme Court, which then issued its unanimous opinion.
The grant to Congress of power to raise and support armies, considered in conjunction with the grants of the powers to declare war, to make rules for the government and regulation of the land and naval forces, and to make laws necessary and proper for executing granted powers (Constitution, Art. I, § 8), includes the power to compel military service, exercised by the Selective Draft Law of May 18, 1917, c. 15, 40 Stat. 76. This conclusion, obvious upon the face of the Constitution, is confirmed by an historical examination of the subject. . . .
Compelled military service 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.
A Japanese internee refuses to register.
In February, 1942, two months after Japan bombed Pearl Harbor, President Franklin Roosevelt issued Executive Order 9066, which authorized the relocation of Japanese and Japanese Americans into internment camps. Then the government ordered draft-aged internees to register. Hiroshi Kashiwagi was one who refused, earning him a transfer to the troubled Tule Lake internment camp and the misapplied nickname “no-no boy.”
[W]e felt that, why should we say “yes, we’d be loyal,” when we’re, you know, treated, we’d been treated the way we had been? And, you know, not as citizens, our rights were taken away and so as a protest, we weren’t gonna… and then of course, the draft. Why would anyone want to join the army, you know, and put your life on the line, when the way you’d been treated? So that’s the, the attitude we had. And so we, we resisted. And, and it was a group thing, and we looked to each other to see if we were still together. And that’s maybe the reason why we got a little hard on those people who changed their minds. But yeah, that’s what happened. And so we never registered, and we were considered “no-nos,” and we were held in Tule Lake.
A musician protests through song.
U.S. involvement in Vietnam ramped up in the early 1960s, as did the draft to populate the military, as did the opposition to that draft. In 1965, musician Phil Ochs wrote and performed “Draft Dodger Rag” on the CBS Evening News special “Avoiding the Draft.”
Oh, I’m just a typical American boy from a typical American town
I believe in God and Senator Dodd and a-keepin’ old Castro down
And when it came my time to serve I knew “better dead than red”
But when I got to my old draft board, buddy, this is what I said:Sarge, I’m only eighteen, I got a ruptured spleen
And I always carry a purse
I got eyes like a bat, and my feet are flat, and my asthma’s getting worse
Yes, think of my career, my sweetheart dear, and my poor old invalid aunt
Besides, I ain’t no fool, I’m a-goin’ to school
And I’m working in a DEE-fense plantI’ve got a dislocated disc and a wracked up back
I’m allergic to flowers and bugs
And when the bombshell hits, I get epileptic fits
And I’m addicted to a thousand drugs
I got the weakness woes, I can’t touch my toes
I can hardly reach my knees
And if the enemy came close to me
I’d probably start to sneezeOoh, I hate Chou En Lai, and I hope he dies,
One thing you gotta see
That someone’s gotta go over there
And that someone isn’t me
So I wish you well, Sarge, give ’em Hell!
Kill me a thousand or so
And if you ever get a war without blood and gore
I’ll be the first to go
The Gates Commission recommends nixing conscription.
One of Richard Nixon’s promises during the 1968 presidential campaign was to end the draft. Congress and the Department of Defense were wary of the implications, however, so President Nixon formed a commission, led by former Secretary of Defense Thomas Gates, to study the issue. In its 1970 report, presented two years before the last draft, the commission likened conscription to a tax.
The extent of the discrimination resulting from conscription depends on the proportion of the population forced to serve, and on the level of compensation provided to those who serve. When a large fraction of the population is conscripted as it was, for example, in World War II, the tax is levied on a larger fraction of the population. Even then, however, the discrimination is by no means eliminated. Not everyone eligible to serve does so. Moreover, such wars do not occur every generation, hence some generations never pay though they benefit from the defense provided by others. . . .
Defenders of conscription often argue that every young person has the duty to serve his country. The above discussion makes it clear that the real question is not whether young people have such a duty, but whether that duty does not extend to the entire populace. Is it right and proper that a large tax be confined to a small fraction of our young able-bodied males in order to relieve taxpayers in general from having to pay higher taxes?
In addition to being discriminatory, conscription as a tax is also generally regressive, falling on individuals whose income is low. The amount of benefits in the form of defense that individuals receive as a consequence of the tax is not related to the amount of tax they pay. Finally, and most importantly, the tax requires payment in kind, rather than money, and the payment in kind takes the form of involuntary service.
It is unlikely that any Congressman would ever propose enactment of a general tax of the kind now imposed by the draft. If one ever were proposed, it would have little chance of being approved by Congress. If approved by Congress, it is hard to imagine that it would be held constitutional by the courts. This is a hidden tax which persists only because it is obscure. No tax is perfect, of course, but it is hard to imagine a means of imposing the cost of defense, or any other Government activity for that matter, more in conflict with accepted standards of justice, equality and freedom in the United States.
President Ford announces amnesty for draft evaders.
Roughly 570,000 were classified as draft offenders during the Vietnam War era. When Gerald Ford assumed the presidency in August 1974, he focused his energy on the immense responsibility of healing the nation after Watergate and the war. On September 8, 1974, he controversially pardoned former President Richard Nixon of all Watergate crimes. Eight days later, he announced to the nation his proclamation to offer conditional amnesty to Vietnam War draft evaders and military deserters.
Good morning. In my first week as President, I asked the Attorney General and the Secretary of Defense to report to me, after consultation with other Governmental officials and private citizens concerned, on the status of those young Americans who have been convicted, charged, investigated, or are still being sought as draft evaders or military deserters.
On August 19, at the national convention of Veterans of Foreign Wars in the city of Chicago, I announced my intention to give these young people a chance to earn their return to the mainstream of American society so that they can, if they choose, contribute, even though belatedly, to the building and the betterment of our country and the world.
I did this for the simple reason that for American fighting men, the long and divisive war in Vietnam has been over for more than a year, and I was determined then, as now, to do everything in my power to bind up the Nation’s wounds. . . .
The primary purpose of this program is the reconciliation of all our people and the restoration of the essential unity of Americans within which honest differences of opinion do not descend to angry discord and mutual problems are not polarized by excessive passion. My sincere hope is that this is a constructive step toward a calmer and cooler appreciation of our individual rights and responsibilities and our common purpose as a nation whose future is always more important than its past.
The Army faces a new reality in recruitment.
The last draft was held in December, 1972. After President Nixon ordered the Pentagon to end conscription, the military had to find new ways of filling its ranks. The Army turned to N.W. Ayer Advertising Agency to produce a series of ads targeting young men. The ads highlighted personal advancement, exciting travel and a relaxed structure, attempting to convince those men that life in the Army wasn’t all that bad.
A federal judge extends Selective Service registration to women.
Although the last draft was held in 1972, it is still law that men register for the Selective Service when they turn eighteen-years old. The National Coalition for Men argued it was unconstitutional, based on the 14th Amendment, that only men should have to register. On February 22, 2019, Judge Gray H. Miller agreed, focusing on previously-used stereotypes about women. It is unknown if his ruling will be appealed.
At the outset, concerns about female physical ability do not appear to have been a significant factor in Congress’s decision-making process regarding the MSSA (Military Selective Service Act). Instead, Congress mentioned concerns about female physical ability in passing, within a list, in one sentence of Defendants’ cited report. In contrast, Congress extensively discussed the ban on women in combat. Congress also focused on the societal consequences of drafting women, such as the perceived impropriety of young mothers going off to war and leaving young fathers to care for children. Defendants’ evidence simply does not support the argument that Congress preserved a male-only draft because of concerns about female physical ability. . . .
Thus, the relevant question is not what proportion of women are physically eligible for combat — it may well be that only a small percentage of women
meets the physical standards for combat positions. However, if a similarly small percentage of men is combat-eligible, then men and women are similarly situated for the purposes of the draft and the discrimination is unjustified. . . .Had Congress compared male and female rates of physical eligibility, for example, and concluded that it was not administratively wise to draft women, the court may have been bound to defer to Congress’s judgment. Instead, at most, it appears that Congress obliquely relied on assumptions and overly broad stereotypes about women and their ability to fulfill combat roles. . . .
In short, while historical restrictions on women in the military may have justified past discrimination, men and women are now “similarly situated for purposes of a draft or registration for a draft.” If there ever was a time to discuss “the place of women in the Armed Services,” that time has passed.
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