Conscription Summary

  • Last updated on November 11, 2022

Compulsory induction of persons into military service by the government.

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.Military and the CourtMilitary and the Court

In Arver et al. v. United States[case]Arver et al. v. United States[Arver et al. v. United States] (1918), the Court addressed the constitutionality of the Draft Act of 1917Draft 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 WarVietnam 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[case]Massachusetts v. Laird[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[case]Gillette v. United States[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[case]Rostker v. Goldberg[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.)

Further Reading
  • 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.

Conscientious objection

Military and the Court

Political questions

Rostker v. Goldberg

Selective Draft Law Cases

Vietnam War

War powers

World War I

World War II

Categories: History Content