On April 27, 1917. Republican California Representative Julius Kahn introduced to the House Resolution 3545—known better as the “Selective Services Act of 1917.” The act would create the largest national draft the country had ever known.
National conscription—or the draft--started long before President Woodrow Wilson called for it in April 2017 when America entered World War I. European nations including the French had systems of military conscription going back to the 18th century and during the American Revolution, individual states used militia drafts to provide the Continental Army with troops.
In fact, the system of state militia drafts was a source of frustration to General George Washington and many of his advisers, like future Secretary of War Henry Knox. They believed a national system would have helped provide the army with enough soldiers and supplies to successfully end the war earlier. When Knox became Secretary of War during Washington’s presidency, he proposed a system of peacetime national conscription in January 1790. Alexander Hamilton seemed to agree, writing in Federalist #23 that the “Union ought to be invested with full power to levy troops; to build and equip fleets; and to raise the revenues which will be required for the formation and support of an army and navy, in the customary and ordinary modes practiced in other governments.” It would give the Americans a military system equal to the European nations and introduce a “glorious national spirit” because the social contract bound citizens to take part in defense of the state. It did not pass, and instead, Congress passed two militia acts—in 1792 and 1795—to organize the state militias to be called out by the President whenever the United States “shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe” and free-white male citizens 18-45 were drafted in state militia units.
During the Whiskey Rebellion in 1794, in which angry farmers in Pennsylvania reacted to Alexander Hamilton’s whiskey tax by attacking tax inspectors, Washington invoked the Militia Act of 1792 to call out the necessary militia to put down the rebellion. As President, for the only time in history, Washington invoked his “Commander-in-Chief" powers to personally command the 13,000 militiamen to put down the resistance.
Decades later, during the War of 1812, by the fall of 1814, the Madison administration had grown desperate for manpower after the British seized and burned Washington D.C. James Monroe, both the Secretary of State and War for a period of months, proposed a national draft immediately. Congress took up the bill in December 1814, leading to an intense debate which saw Daniel Webster giving one of his first great orations, asking, “Where is it written in the Constitution, in what article or section is it contained, that you may take children from their parents, and parents from their children, and compel them to fight the battles of any war, in which the folly or the wickedness of government may engage it?”
Monroe’s proposal was tabled for further debate and by the time Congress reconvened in January, the war was over—the Treaty of Ghent was signed Christmas Eve in 1814. No serious proposal would be made again for almost 50 years. During the American Civil War, the Confederacy acted first to institute a national draft, doing so in April 1862. President Abraham Lincoln tried to abide by the American tradition of a volunteer army and the strength of state militias, calling for 75,000 volunteers in April 1861. The Militia Act of 1862 was an amendment to the 1792 and 1795 acts, calling on states, if they could not meet their quotas, to use state drafts to call out additional men, while also opening the door for black recruits.
But by the turn of the year, the Union’s military situation was worse. Two-year volunteers would soon leave for home and the Union faced a devastating loss at Fredericksburg in December. By the end of January, Senator Henry Wilson introduced the Enrollment Act of 1863. During February, Democrats, without the numbers to defeat the act, protested that the act was clearly unconstitutional and would lead the country down the path of European despotism. After it passed on March 3, 1863, drafts began in July and in New York, the draft riots resulted in over a hundred dead and the targeted of African-American orphanages.
In both the North and South, most Courts upheld national conscription as constitutional under Congress’s power to “raise and support armies.” One North Carolina Supreme Court justice struck down the Confederate act, but he was quickly reversed, while in the North, a New York City judge and the Pennsylvania Supreme Court both declared conscription unconstitutional before being quickly reversed. By 1871, in Tarble’s Case, Justice Stephen Field spoke of conscription as a clear power of Congress.
During World War I, broad national conscription was the policy of the warring European nations—including for the first time in Britain. The day before Congress declared war on Germany on April 6, President Wilson’s administration introduced its Army Bill which provided for compulsory military service. When Kahn introduced the Selective Services Act weeks later, Wisconsin Senator Robert M. LaFollette called conscription the “beginning of the end of our constitutional government” by permitting the president to force men into military service. But LaFollette and his allies were a small minority—the bill passed the House 398-24, before passing the Senate on an 81-8 vote, with seven Senators abstaining.
The Selective Services Act of 1917 was different from the Civil War drafts in several important ways. For one, it sought to forcibly recruit a far larger force. It did not allow for substitutions—both the Union and Confederacy allowed for paid substitutes and the option of paying commutation fees which would be used as a bounty. Finally, the World War I draft did not seek to raise an army for one of the purposes listed in Article I—to “execute the laws of the Union, suppress insurrection, and repel invasions”—but instead to use it to win a foreign war.
A minority of Congress opposed the act as unconstitutional. When cases reached the courts, unlike in the Civil War, no judges were willing to overturn the act. The Supreme Court, in the Selective Draft Law Cases, in 1918 unanimously found the Selective Services Act constitutional. Justice White rejected not only arguments that the act exceeded Congress’s powers to “raise armies” and “provide for calling forth the militia,” but that conscription constituted forced labor, a form of involuntary servitude that violated the 13th amendment.
In the lead-up to World War II, Congress passed the Selective Services Act of 1940, which instituted the first peacetime draft, which was re-enacted in 1948 with President Truman's support. While the draft was controversial throughout the Vietnam War until its suspension in December 1972, Congress and President Carter restored the Selective Services Act and registration in 1980. Today, the question is no longer whether military conscription is constitutional, but whether the male-only draft violates the Equal Protection Clause of the 14th amendment.
Further Reading:
Leon Friedman, “Conscription and the Constitution: The Original Understanding,” Michigan Law Review (1969), https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1018&context=faculty_scholarship
Michael Malbin, “Conscription, the Constitution, and the Framers: A Historical Analysis,” Fordham Law Review (1972), https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2087&context=flr
Nicholas Mosvick, Courtroom Wars: Constitutional Battles over Conscription in the Civil War North, dissertation (2019) https://egrove.olemiss.edu/cgi/viewcontent.cgi?article=2571&context=etd
Nicholas Mosvick is a Senior Fellow for Constitutional Content at the National Constitution Center.
