Conscription in the United States
The United States has employed conscription (mandatory military service, also
called "the draft") several times, usually during war but also during the
nominal peace of the Cold War. The U.S. discontinued the draft in 1973, moving
to an all-volunteer force.
Today, the Selective Service System remains in place as a contingency; young
men are required to register so that a draft can be more readily resumed. The
U.S. armed forces are now designated as "all-volunteer", although, in 2004 as
well as during the 1991 Gulf War, some personnel were kept in the military
longer than they expected. However, this was consistent with their enlistment
contracts because of a clause that permits retention based on the needs of the
military. In 2003 legislation to reintroduce general conscription was defeated
in the U.S. House of Representatives due to widespread disapproval among
lawmakers and the American public.
The United States first employed a form of conscription during the War of
1812 , though a draft Act was formulated in The First National Conscription Act
in 1792. The imposition of a draft during the American Civil War touched off the
New York Draft Riots in July 1863. The Confederate States instituted
conscription in 1862, and resistance was both widespread and violent, with
comparisons made between conscription and slavery. Both sides permitted
conscripts to hire substitutes. In the Union, many states and cities offered
bounties and bonuses for enlistment. They also arranged to take credit against
their quota for freed slaves who enlisted.
The World Wars
Conscription was next used after the United States entered World War I in
1917. The first peacetime conscription came with the Selective Service Act of
1940, which established the Selective Service System as an independent agency.
The duration of service was originally twelve months. It was expanded to
eighteen months in 1941. When the United States entered World War II, service
was required until six months after the end of the war. The first draft number
ever picked for World War II was 158, picked by a blindfolded Henry L. Stimson
out of a goldfish bowl.
As manpower needs increased during World War II, draftees were inducted into
the U.S. Marine Corps as well as the U.S. Army. During this time period the US
lowered the draft age to 17.
One of the holders of the first number (258) in the U.S. military draft
lottery in 1917 was an Alden C. Flagg. His son, Alden C. Flagg, Jr., of Boston,
was a holder of the first number (158) in the U.S. peacetime draft lottery of
The Cold War and the Korean War
The wartime draft was extended by Congress, but it expired in 1947. In 1948
the draft was re-instated. It was expanded by the Universal Military Training
and Service Act in 1951, in response to the manpower needs caused by the Korean
In the first and only instance of U.S. conscription during a major peacetime
period, the draft continued on a more limited basis during the late 1950's and
early 1960's. While a far smaller percentage of eligible males were conscripted
compared to war periods, draftees by law served in the U.S. Army for two years.
Elvis Presley and Willie Mays were two of the most famous people drafted during
There was some opposition to the draft even before the major U.S. involvement
in the Vietnam War. The large cohort of Baby Boomers who became eligible for
military service during the Vietnam War also meant a steep increase in the
number of exemptions and deferments, especially for college and graduate
students. This was the source of considerable resentment among poor and working
class young men, who could not afford a college education. ("If you have the
dough, you don't have to go.")
As U.S. troop strength in Vietnam increased, more and more young men were
drafted for service there and more and more of those still at home sought means
of avoiding the draft. For those seeking a relatively safe alternative, service
in the U.S. Navy, Air Force or Coast Guard was an option (provided one could
meet the more stringent enlistment standards). Since only a handful of National
Guard and Reserve units were sent to Vietnam, enlistment in the Guard or the
Reserves became a favored means of draft avoidance. Vocations to the ministry
and the rabbinate soared, as divinity students were exempt from the draft.
Doctors and draft board members found themselves being pressured by relatives or
family friends to exempt potential draftees. The draft was unpopular both for
its impact on those drafted and as a focal point for opposition to a
controversial war. Rather than submit to conscription, tens of thousands of
young men migrated to Canada, which did not support war in Vietnam. Conscription
ended in 1973. The end came after a series of lawsuits challenged the draft upon
its re-enactment and renewed conscription in 1972 without regard to the 90-day
waiting period required in the original Korean War era draft law (section 20 of
the Act) that remained in the 1972 Act (which U.S. Attorneys defending
conscription argued was as a result of a legislative drafting error). After a
series of challenges to the draft under section 20 in 1971 and 1972, leading to
an injunction against induction in the geographical area encompassed by 9th
Circuit Court of Appeals by Justice William O. Douglas (where, legend has it,
Justice Douglas posted the injunction on a tree near a camp site while hiking in
the Cascade Mountains), it became so difficult for the Selective Service System
to unwind the mess the Section 20 cases caused (and to draft men according to
the priorities required by law -- the "order of call" named after the "order of
call" defense), that the draft was quietly ended -- just in time for the wind
down of the Vietnam War. The then-young Harvard Law school graduate who
engineered the Section 20 cases, and the end of the draft, has never been
acknowledged for his contributions (or, as viewed by others, his lack of
patriotism) to ending the war in Vietnam, and the draft.
Post-1980 draft registration
In 1980, Congress re-instated the requirement that young men register with
the Selective Service System. Currently, male U.S. citizens and many male aliens
living in the U.S., if age 18 through 25, are required to register with the
Selective Service System, which describes its mission as "...to serve the
emergency manpower needs of the Military by conscripting untrained manpower, or
personnel with professional health care skills, if directed by Congress and the
President in a national crisis."
No one has been prosecuted for failure to comply with draft registration
since 1986, in part because prosecutions of draft resisters proved
counter-productive for the government, and in part because of the difficulty of
proving that noncompliance with the law was "knowing and willful". Many people
don't register at all, register late, or change addresses without notifying the
Selective Service System.
Health Care Personnel Delivery System
In 1987, Congress ordered the Selective Service System to put in place a
system capable of drafting "persons qualified for practice or employment in a
health care and professional occupation", if such a special-skills draft should
be ordered by Congress. In response, Selective Service published plans for
the "Health Care Personnel Delivery System " (HCPDS) in 1989, and has had them
ready ever since. The concept underwent a preliminary field exercise in Fiscal
Year 1998, followed by a more extensive nationwide readiness exercise in Fiscal
Year 1999. The HCPDS plans include women and men ages 20-54 in 57 different job
categories. Today, the most likely form of draft is a draft of health care
In 1918, the Supreme Court ruled that the World War I draft did not violate
the United States Constitution. Arver v. United States, 245 U.S. 366
(1918) (). The Court detailed its conclusion that the limited powers of the
federal government included conscription. Its only statement on the Thirteenth
Amendment issue that had also been raised was:
Finally, as 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
Later, during the Vietnam War, a lower appellate court also concluded that
the draft was constitutional. United States v. Holmes, 387 F.2d 781 (7th
Cir.), cert. denied, 391 U.S. 936 (1968) (). (Justice William O. Douglas,
in voting to hear the appeal in Holmes, agreed that the government had
the authority to employ conscription in wartime, but argued that the
constitutionality of a draft in the absence of a declaration of war was an open
question, which the Supreme Court should address.)
Despite the Supreme Court's ruling in Arver, some people (such as Ayn
Rand in her 1967 article, "The Wreckage of the Consensus") continued to argue
that the draft was prohibited by the Thirteenth Amendment.
During the World War I era, the Supreme Court allowed the government great
latitude in suppressing criticism of the draft. Examples include Schenck v.
United States, 249 U.S. 47 (1919) () and Gilbert v. Minnesota, 254
U.S. 325 (1920) (). In subsequent decades, however, the Court has taken a much
broader view of the extent to which advocacy speech is protected by the First
Amendment. Thus, in 1971 the Court held it unconstitutional for a state to
punish a man who entered a county courthouse wearing a jacket with the words
"Fuck the Draft" visible on it. Cohen v. California, 403 U.S. 15 (1971)
(). Nevertheless, protesting the draft by the specific means of burning a draft
registration card can be constitutionally prohibited, because of the
government's interest in prohibiting the "nonspeech" element involved in
destroying the card. United States v. O'Brien, 391 U.S. 367 (1968) ().
In 1981, several men filed lawsuit in the case Rostker v. Goldberg,
alleging that the Military Selective Service Act violates the Due Process Clause
of the Fifth Amendment by requiring that men only and not also women register
with the Selective Service System (SSS). The Supreme Court eventually upheld the
Act, stating that Congress's "decision to exempt women was not the accidental
byproduct of a traditional way of thinking about women," that "since women are
excluded from combat service by statute or military policy, men and women are
simply not similarly situated for purposes of a draft or registration for a
draft, and Congress' decision to authorize the registration of only men
therefore does not violate the Due Process Clause," and that "the argument for
registering women was based on considerations of equity, but Congress was
entitled, in the exercise of its constitutional powers, to focus on the question
of military need, rather than 'equity.'" In stating as much, the Supreme Court
officially recognized that the requirement that only men register with the SSS
is unequal, but that the military had the right to enforce this inequality.
According to the SSS,
- A conscientious objector is one who is opposed to serving in the armed
forces and/or bearing arms on the grounds of moral or religious principles.
- Beliefs which qualify a registrant for CO status may be religious in
nature, but don't have to be. Beliefs may be moral or ethical; however, a
man's reasons for not wanting to participate in a war must not be based on
politics, expediency, or self-interest. In general, the man's lifestyle
prior to making his claim must reflect his current claims.
The Supreme Court has ruled in cases United States v. Seeger (1965) and Welsh
v. United States (1970) that conscientious objection can be due to non-religious
beliefs as well as religious beliefs; but it has also ruled in Gillette v.
United States (1971) against objections to specific wars as grounds for
There is currently no mechanism to indicate that one is a conscientious
objector in the Selective Service system. According to the SSS, after one is
drafted, one can claim Conscientious Objector status and then justify it before
the Local Board. This is criticized because, during the times of a draft, when
country is in emergency conditions, there will be increased pressure for Local
Boards to be more harsh on conscientious objector claims.
There are two types of status for conscientious objectors. If one only
objects to combat, but not to service in the military, then one is given
noncombatant service in the military without training of weapons. If one objects
to all military service, then one is given "Alternative Service" with a job
"deemed to make a meaningful contribution to the maintenance of the national
health, safety, and interest."
Selective Service reforms
The Selective Service System has maintained that they have implemented a
number of reforms that would make the draft more fair and equitable.
Some of the measures they have implemented include:
- Before Vietnam a young man could get a deferment by showing that he was
a full-time student making satisfactory progress towards a degree; now
deferment only lasts to the end of the semester. If the man is a senior he
can defer until the end of the academic year.
- The government has said that draft boards are now more representative of
the local communities in areas such as race and national origin.
- A lottery system would be used to determine the order of people being
called up. Previously the oldest men who were found eligible for the draft
would be taken first. In the new system, the men called first would be those
who are or will turn 20 in the calendar year or those whose deferments will
end in the calendar year. Each year after the man will be placed on a lower
priority status until his liability ends.
As there has been no draft since the end of the Vietnam War, it remains to be
seen how any future drafts would be conducted.
Perception of the draft as unfair
Some people feel that the draft is fundamentally unfair (or illegal) because
only males must register with the Selective Service. Many masculists as well as
feminists hold this view. For example, the National Organization for Women
(NOW), feminist organization, passed a resolution in 1980 opposing males-only
draft registration as discriminatory and the ACLU's Women's Rights Project
provided aid to the plaintiff in the Supreme Court case Rostker v. Goldberg, in
which the plaintiff unsuccessfully challenged males-only draft registration.
Congress retains the right to conscript women, and considered doing so during
the Second World War.
Other discriminating factors regarding conscription include age, with a
preference for younger draftees, and residency, as only those in the U.S. may be
The draft has been perceived by some as unfairly targeting the poor and lower
middle classes. Because of college deferments, children of wealthy and upper
middle class families that could afford to send them to college could avoid the
draft. The fact that President Bill Clinton had been attending college during
the time period in which conscription was active and received a collegiate
deferment caused controversy during his campaigns and during his time in office.
Similar controversy has surrounded prominent figures in the Bush Administration,
such as Dick Cheney and Paul Wolfowitz.
Some children of wealthy families wished to avoid a perception of avoiding
military service. Those individuals would often sign up for the National Guard.
The fact that some were able to use their family's connections to gain a
position when spots in the guard were limited also led to a perception that the
wealthy were using the National Guard to ensure that their children were
assigned low risk duty in the States. Much as President Clinton's obtaining a
deferment based on his attending college had caused controversy, President
George W. Bush's service in the National Guard during the Vietnam War had also
attracted controversy during his election campaigns.
During the Vietnam Era period it was often quite easy for those with some
knowledge of the system (or from guidance by draft counselors and draft
attorneys) to avoid being drafted, or to defend prosecutions by submitting
themselves to induction after indictment, and then being found disqualified. A
simple route, widely publicized, was to get a medical rejection. This was
possible because the draft laws after World War II mandated that the medical
standards for conscription should not be less stringent than they were during
the war. However, advances in diagnostic medicine lead to a much larger pool of
young men being subject to disqualification. (Homosexuality was also a
disqualifying condition, although most men did not wish to assert this status
during that era.) Men who received induction notices could often manipulate
where they were examined by showing up at induction centers far away from their
actual residences on the mandated date for examination (either for a
pre-induction physical or the induction physical examination). It was
advantageous to be examined in induction centers adjacent to heavily populated
metropolitan areas, where it often wasn't worth the Army's time to dispute their
One scene in a film that accurately captures the chaotic situation in the
lower Manhattan draft center where people slipped through the cracks is in
Alice's Restaurant. In this case the young man was rejected for having a
criminal record (for littering). Conversely the poor and uneducated were often
swept up without any understanding of how to escape the system. However, many
law schools, notably Harvard, had draft counseling centers where law students
helped young men in poorer areas to assert their rights and seek exemptions from
U.S. Representative Charles Rangel argued in 2004 that poor men were far more
apt to enlist for military service. He called for a reinstatement of the draft
to ensure service in Iraq was spread equally among the rich and poor. (See
section below: 'Conscription controversies in 2004'.) After the November 2006
elections, Rangel again suggested the draft be renewed, this time because he
thought it was less likely that a democracy with conscription would engage in
pre-emptive wars such as the current American military involvement in Iraq.
While the government had instituted reforms to deal with what were perceived
to be the worst abuses, some people feel that more can still be done. Others
feel that any military draft is inherently unfair because only a small
percentage of eligible draftees are needed at only one time. One leading
opponent of military draft restoration, State Rep. Mark B. Cohen of
Philadelphia, said "The draft hurts military efficiency by substituting well
motivated volunteers for unmotivated draftees, undermines military pay and
benefits by removing the need to attract volunteers, and creates anxiety and
unrest among tens of millions of people who will never serve. It is a dangerous
pseudo-solution to a non-existent problem."
The provisions for conscientious objection to the draft have also been viewed
as unfairly discriminatory, favoring religious objection over non-religious
objection. Alternative mandatory service can assuage objections based on peace
and non-violence, but does nothing for those whose objections arise from
strongly held convictions about freedom. Many who object to the draft find it
directly conflicts with the liberty clause they committed themselves to in the
Pledge of Allegiance. The counter argument to this position is that with the
rights of a republic, come inherent responsibilities.
Conscription controversies since 2003
No attempt to reinstate conscription, since the effort to enforce Selective
Service registration law was abandoned in 1986, has been able to attract much
support in the legislature or among the public. However since early 2003,
when the Iraq War appeared imminent, there have been a number of attempts
through legislation and through campaign rhetoric to begin a new public
conversation on the topic.
In 2003, several congressmen (Charles Rangel D-NY, James McDermott D-WA, John
Conyers D-MI, John Lewis D-GA, Pete Stark D-CA, Neil Abercrombie D-HI)
introduced legislation that would draft both men and women into either military
or civilian government service, should there be a draft in the future. The
Republican majority brought the bill up for a vote in the House of
Representatives. It was defeated by a vote of 402-2.
In 2004 the platforms of both the Democratic and Republican parties opposed
military conscription, but neither party moved to end draft registration. John
Kerry in one debate criticized Bush's policies, "You've got stop-loss policies
so people can't get out when they were supposed to. You've got a backdoor draft
This statement was in reference to the Department of Defense use of
"stop-loss" orders, which have extended the Active Duty periods of some military
personnel. All enlistees, upon entering the service, volunteer for a minimum
eight-year Military Service Obligation (MSO). This MSO is split between a
minimum active duty period, followed by a reserve period where enlistees may be
called back to active duty for the remainder of the 8 years. Some of these
active duty extensions have been for as long as two years. The Pentagon stated
that as of August 24, 2004, 20,000 soldiers, sailors, airmen, and marines had
been affected. As of January 31, 2006 it has been reported that more than
50,000 soldiers and reservists had been affected.
Mentions of the draft during the Presidential campaign led to a resurgence of
anti-draft and draft resistance organizing. One poll of young voters in
October 2004 found that 29% would resist if drafted.
In November 2006, New York Democratic Representative Charles Rangel again
called for the draft to be reinstated. Incoming Speaker of the House Nancy
Pelosi has rejected this proposal.
On December 19, 2006 President Bush announced that he is considering sending
more troops to Iraq. The next day, the Selective Service System's director for
operations and chief information officer, Scott Campbell, announced plans for a
"readiness exercise" to test the system's operations in 2009, for the first time
On December 21, Veterans Affairs Secretary Jim Nicholson, when asked by a
reporter whether the draft should be reinstated to make the military more equal,
said, "I think that our society would benefit from that, yes sir." Nicholson
proceeded to relate his experience as a company commander in an infantry unit
which brought together soldiers of different socioeconomic backgrounds and
education levels, noting that the draft "does bring people from all quarters of
our society together in the common purpose of serving." Nicholson later issued a
statement saying he does not support reinstating the draft.
Conscription, as described above, has been used nationally only to provide
men to the military. The most common form of compulsory civilian service in the
U.S. is the much shorter obligation of jury duty.
Mandatory public service of a non-military nature is required as part of the
high school curriculum in many school districts across the nation. Since 1992,
the state of Maryland has required a total of 75 hours of "developmentally
appropriate service-learning activities" over the course of grades 6 through 12.
During the 2004 campaign, Kerry proposed a similar program nationwide, to be
implemented by each school district but federally funded. He added an additional
voluntary option for students to receive four years of college tuition in
exchange for a commitment to two years of national service.
Mandatory full-time service on a national scale has been proposed many times,
and was backed by, for example, Dwight D. Eisenhower. Recent proposals have been
modeled after the Americorps program, but necessarily much larger in scale when
made mandatory. Robert Litan of the Brookings Institution estimates the cost for
a program of one year for all high school graduates at $25 billion. ,
The draft and immigration
Selective Service (and the draft) in the United States is not limited to
citizens. Non-citizen males of appropriate age in the United States, who are
permanent residents (holders of green cards), seasonal agricultural workers,
refugees, parolees, asylees, and even illegal immigrants, are required to enlist
in Selective Service. Refusal to do so is grounds for denial of a future
citizenship application. In addition, immigrants who seek to naturalize as
citizens must, as part of the Oath of Citizenship, swear to the following:
... that I will bear arms on behalf of the United States when required by
the law; that I will perform noncombatant service in the armed forces of the
United States when required by the law; that I will perform work of national
importance under civilian direction when required by the law;
Non-citizens who serve in the United States military enjoy several
naturalization benefits which are unavailable to non-citizens who do not, such
as a waiver of application fees. Permanent resident aliens who die while
serving in the U.S. Armed Forces may be naturalized posthumously, which may be
beneficial to surviving family members.