December 08, 2016


 

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.

History

 

Early drafts

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 1940.

 

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 War.

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 this period.

 

Vietnam War

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 workers.


 

 

Legality

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 statement.

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.

 

Conscientious objection

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 conscientious objection.

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 drafted.

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 claims.

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 induction.

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 right now."

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 since 1998.

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.

 

Civilian service

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.

 


 


  2016 SELECTIVESERVICE.US. All Rights Reserved.
The Department of Defense (DOD) has not approved,
endorsed, or authorized this US Military Justice website
SELECTIVESERVICE.US
is a trademark owned by the
Delaware Consulting Group