Conscription History

Our Constitution adopted in 1789 gave Congress the “power to raise and support armies”, but did not mention or prohibit conscription. This paper reflects my exploration of the history of the draft, complete with court opinions and personal opinions.

During the American Revolution the new state governments assumed the colonies’ authority to draft for their short term militias but denied General George Washington’s request to provide the central government the power to conscript. As the initial volunteering for the Continental Army subsided most states boosted enlistment by the use of enlistment bounties and holding an occasional draft but this resulted in producing more hired substitutes than actual draftees. There were dissenters and this resulted in several states recognizing the status of a group called conscientious objectors such as the Quakers, who on the grounds of conscience resist the authority of the state to compel them into military service.

During the War of 1812, President James Madison’s administration was unable to enact national conscription. Daniel Webster denounced conscription as an attempt at “Napoleonic despotism”. During the Civil War, in April of 1862 the Confederacy adopted the draft but it violated individual liberty and states’ rights by including class-bound occupational exemptions which resulted in much discontent and resistance. In March, 1863 Congress adopted the Union Conscription Act (factually known as the Enrollment Act) and thought to avoid unpopular occupational exemptions by authorizing draftees to escape service by hiring a substitute or by paying the government a commutation fee of three hundred dollars. Peace democrats claimed it was a “rich man’s war but a poor man’s fight”. New York Governor Horatio Seymour denounced the Conscription Act as unconstitutional which incited the populace and resulted in the deadly draft riots in New York City . Governor Seymour requested a court test of the constitutionality of the act, but this did not come about until December 1917, ten months prior to the end of WWI.

The beginning of WWI found our military on a skeleton basis, which resulted in the Selective Service Act of May 18, 1917, c. 15, 40 Stat. 76. Although by June 5, 1917, over 9.5 million men signed up, there was considerable opposition and 300,000 men evaded the draft and 4,000 were classified as conscientious objectors. In response to the opposition, Woodrow Wilson aimed the following