Last month, a Senate committee voted, as part of the annual defense authorization bill, to include women in registration for the Selective Service System. The Senate move came one month after the Supreme Court decided not to hear a lawsuit seeking to overturn the male-only draft, and one year after a national commission recommended Congress make that change.
Today’s arguments about gender equality, citizenship, and the draft rest upon a long history, not just about the role of women in the military but more broadly about the Constitution and the government’s power of military conscription.
In the early days of the republic, the debate about the draft focused on whether the nation’s military might should rest upon a volunteer force and the militia powers of the states or upon the coercive powers of the national government in times of need and crisis.
During the American Revolution, it was only the states that could demand military service from their citizens. Congress, operating under the Articles of Confederation, could set troop quotas, but it was the states that filled them using military drafts. That system frustrated many of the Founders intimately familiar with the system’s defects, including Gen. George Washington, Lt. Col. Alexander Hamilton, and Gen. Henry Knox.
As Hamilton would later write in Federalist No. 23, an “ill-founded and illusory” expectation underlay the system of leaving solely to the states the power to levy troops to meet congressional quotas. “If we are in earnest about giving the Union energy and duration,” he wrote, “we must abandon the vain project of legislating upon the States in their collective capacities; we must extend the laws of the federal government to the individual citizens of America; we must discard the fallacious scheme of quotas and requisitions, as equally impracticable and unjust.”
Hamilton was writing in support of ratification of the Constitution, and his point was readily apparent: Congress needed to have the powers of the modern nation-state to levy armies, build and equip a naval fleet, and raise the revenue needed to pay a national army. Under the Articles, Congress had none of those powers and thus, for Hamilton, failed to represent the national interest and common defense of the people. Article I of the proposed new Constitution, however, gave to Congress the express powers
To declare War . . . ; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; . . . To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; [and] To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
The opponents of the Constitution, the Anti-Federalists, generally did not reject the power of sovereigns to demand from their citizens military duty—they just believed that the states rather than the national government rightfully possessed that sovereign power. The militia was a state and local entity controlled by the people and a democratic check on centralized power. At least on this issue, the dispute between the Federalists and Anti-Federalists was about sovereignty and whether the Constitution created a nation-state and obligations of national citizenship that could supersede or displace local institutions of the people, such as the militia. The Anti-Federalists worried about the rise of a permanent standing army under the command of a tyrannical executive, an existential threat that contributed to the destruction of the Roman Republic. As one of the prominent Anti-Federalists, the pseudonymous Brutus, argued, “In despotic governments, as well as in all the monarchies of Europe, standing armies are kept up to execute the commands of the prince or the magistrate, and are employed for this purpose when occasion requires: But they have always proved the destruction of liberty, and [are] abhorrent to the spirit of a free republic.”
These positions largely set the debate going forward. Writing from Paris in 1789, a few weeks before President Washington was inaugurated, Thomas Jefferson described standing armies as “dangerous to the rights of the nation” and called for a constitutional amendment to forbid them. But a year later, Secretary of War Henry Knox first formally proposed national conscription, in a plan that was not adopted by Congress when it passed the Militia Act of 1792. Some two decades later, under the wartime Madison administration, James Monroe, at once secretary of state and war, advocated for Congress to adopt a bill for national conscription in October 1814. He waved off the possibility of any “well founded objection” to his bill since Congress had an unqualified power to “raise armies.” Opposition came from New England Federalists, where multiple governors at the beginning of the war had refused calls to send their militia troops to join national forces and now organized to oppose Monroe’s proposal.
Daniel Webster, at the time a 32-year-old freshman representative, gave an electric speech decrying the proposed draft, calling it an “attempt to exercise the power of forcing the free men of this country into the ranks of the Army” which ignored the distinct character of the militia, abandoned the limitations on the power of Congress to call out the militia under Article I by calling them out “not merely for the purpose of repelling invasion, suppressing insurrection, or executing the laws, but for the general objects of war,” and raised the question of “whether the most essential rights of personal liberty shall be surrendered, and despotism embraced in its worst form.”
Monroe’s conscription plan was tabled after acrimonious debate in the Senate, and the war ended before Congress could reconsider the draft. But the plan was not forgotten. Nearly fifty years later, the Civil War brought the issue of national conscription to the fore. The Militia Act of 1862—which, like previous such laws, set quotas that were supposed to be met by state militias—did not bring in the necessary troops. Desperate to maintain the Army after the military failures of 1862, President Lincoln and his Republican congressional allies successfully enacted national conscription on March 3, 1863.
Over the course of 1863, Northern Democratic lawyers and politicians looked to the courts, hoping the conscription law would be judged unconstitutional. In two decisions, Democrats met success. One New York City judge declared the act unconstitutional while draft riots raged in the city. And the Pennsylvania Supreme Court, in a 3-2 ruling in Kneedler v. Lane, issued injunctions against enrollment officers and found that Congress lacked the power to draft the militias of the states. Chief Justice Roger Taney himself drafted a private, unpublished opinion in the spring of 1863 arguing that the conscription law was unconstitutional—on the grounds that it was a violation of state sovereignty, of the limitations of Articles I and II, and of the Second Amendment’s protection of a “well-regulated militia.”
Taney’s preparation notwithstanding, Kneedler never made it to the U.S. Supreme Court. The chief justice of the Pennsylvania Supreme Court, who had ruled with the majority, lost his seat in the elections of fall 1863 to an advocate of conscription, and the Lincoln administration successfully sought a reversal of the injunctions. Kneedler would become not a precedent for the limitations of congressional power but serve as the primary Civil War precedent for the constitutionality of the draft going forward. In 1872, the Supreme Court in a case about the power of state courts to inquire into the validity of enlistments by writ of habeas corpus, rejected such state jurisdiction because Congress had power to “raise and support armies” and could determine without state intervention if the Army would be raised by voluntary enlistment or “forced draft.”
Forty-six years later, in the Selective Draft Law Cases, the Supreme Court finally resolved the question of national conscription in a unanimous opinion that rejected all of the traditional objections. Chief Justice Edward White cited Kneedler as part of the uniformity of courts in upholding the power of national conscription and scathingly pondered that the mind could not “conceive an army without the men to compose it, on the face of the Constitution the objection that it does not give power to provide for such men would seem to be too frivolous for further notice.” The Court not only rejected the arguments of the Jeffersonians and Jacksonians, but also the arguments of their heirs—such as the claim that conscription was a form of forced labor under the Thirteenth Amendment or that conscription was illegitimate for an army fighting a foreign war such as the First World War.
The White Court settled the question of the constitutionality of national conscription, but only during a time of military emergency. The peacetime draft—the Selective Service and Training Act—had to wait until the Second World War. It was remarkable for having largely been the brainchild of prominent individuals outside of Congress and the military, such as Wall Street attorney Grenville Clark, a lifelong friend of Franklin Roosevelt’s. Clark had long been concerned about American military readiness; prior to the First World War, he was a leader in the Plattsburg (or Plattsburgh) movement, in which thousands of American men gathered to train themselves in the art of war. Along with other Plattsburg alumni, Clark led the push for a peacetime draft in 1940 as a means of military preparedness before the country entered the war then raging in Europe. After months of lobbying by Clark, a bill was introduced in Congress by Rep. James Wadsworth and Sen. Edward Burke; the former was a Republican and the latter an anti-New Deal Democrat. As supporters of the bill made clear, the peacetime draft’s purpose was to train an army capable of defending American democracy against the threat of the totalitarian dictatorships of Hitler, Stalin, Mussolini, and Japan. The supporters of the proposal argued that drafts were democratic because they treated all male citizens of age equally. Wadsworth added that this was only an emergency measure and was not intended to become a permanent institution.
Some congressional critics, such as Republican Reps. Dewey Short, Harold Knutson, and Clare Hoffman, bellowed that the bill would replace democracy with totalitarianism by giving the president “extraordinary” and “vast” discretionary powers and usurping Congress’s power to declare war. Rep. Short singled out Clark and the interests of Wall Street and “international financiers” who desired a mass army to protect their investors. (This attack echoed other common isolationist critiques of the interwar period, such as the notion that certain banks and munitions makers—“merchants of death”—bore much responsibility for the previous war.) The congressional debates over the bill were extraordinarily heated, with representatives trading blows on the House floor at one point. It was only the announcement of support for the bill by that year’s Republican presidential nominee, Wendell Willkie, followed a few days later by a similar announcement from President Roosevelt, that “broke the back of the opposition to the conscription law.”
The bill left the status of conscientious objectors to the determination of local draft boards. Lawsuits against the peacetime draft popped up throughout the country, but they never reached the Supreme Court, as federal courts relied on the precedents of the Civil War and First World War decisions to conclude that Congress could compel military service in both war and peacetime.
As victory in Europe drew near, a severe shortage of nurses following the Battle of the Bulge led President Roosevelt, in his final State of the Union message, to call for women to be drafted as nurses: “Since volunteering has not produced the number of nurses required, I urge that the Selective Service Act be amended to provide for the induction of nurses into the armed forces. The need is too pressing to await the outcome of further efforts at recruiting.” The measure passed the House by 347 to 42 that March before stalling in the Senate.
Following the war, Congress passed the Selective Service Act of 1948 to replace the expired 1940 system; subsequent lawsuits concerning the inclusion of conscientious objectors in the peacetime draft were rejected. The 1948 act served to draft men who were sent to the Korean War and Vietnam War and was accompanied by the passage of the 1948 Women’s Armed Services Integration Act which made women permanent members of the armed forces. By the 1950s, Frances Bolton, a former isolationist who had opposed the 1940 act, advocated for the conscription of women into noncombat roles.
The last notable constitutional battle over the draft followed the United States’ intervention in Vietnam and the resulting military buildup, which saw over 2 million men drafted for military service. When the ACLU and Leon Friedman tried to revisit the question of conscription during the Vietnam War in 1968, Chief Justice Earl Warren wrote for a 7-1 majority that the power to classify and conscript manpower for military service was “beyond question.”
Yet, outside the courts, the validity if not the constitutionality of the draft came into question, and by 1971, a bitter contest over the two-year renewal of the draft ensued in the Senate. The draft renewal bill passed, but by December 1972, the last man was conscripted. Even the requirement that 18-year-olds register with the Selective Service System ended in 1975, but it was quickly reactivated in 1980 by President Carter after the Soviet Union invaded Afghanistan. It has remained in place ever since. Not once in the intervening forty-one years—not even as the United States itself went to war in Afghanistan after 9/11—was the draft resumed, even though there was intermittent talk of doing so. But the Selective Service System remains, as President Bill Clinton called it, “a hedge against unforeseen threats and a relatively low cost ‘insurance policy’ against our underestimating the maximum level of threat we expect our Armed Forces to face.”
The males-only draft was soon challenged on Fifth Amendment due process grounds, but in 1981 the Supreme Court ruled 6-3 in Rostker v. Goldberg that the draft “was not the accidental byproduct of a traditional way of thinking about females,” noting that Congress had “thoroughly reconsidered the question of exempting women from the Act in 1980.”
Decades of further integration of women into the military mean that there are no longer any combat roles closed to women—and so a challenge to Rostker was inevitable. A men’s rights group, the National Coalition for Men, sued on due process grounds in 2013, resulting in a 2019 ruling in their favor by a Texas District Court judge in 2019. That ruling was reversed by the Fifth Circuit last August. The Supreme Court has declined to take up the appeal, shifting the debate today back to Congress.
Because the constitutionality of conscription was settled during the Civil War, our remaining questions are less about constitutional power and more about the meaning of equality and combat readiness. If Congress passes and the president signs into law a requirement that the Selective Service System register women as well as men, it would put the United States among the few countries on earth with such a requirement. In the event of a national emergency, if the draft is reactivated, there will likely be questions about the efficacy of a draft system that treats both sexes equally—just as every other aspect of the draft has been disputed, back to the Founding.