Conscription

Conscription may be simply described as the power of the state to raise and maintain armed forces. Although commonly associated with federal authority, during the American Revolution initial American efforts to raise an army involved local militias on a temporary multistate basis. The Continental army did consist of paid enlistees, but they were recruited largely by the colonies, now newly established states, which retained the ability to conscript and tax—two prerequisites not granted to the Confederation Congress. Most of the military was made up of volunteers, with terms lasting from a few weeks to approximately six months. While several states resorted to the draft, substitutes could be hired and frequently were. The need to resolve possible conflicts between the ideal of the volunteer citizen soldier and a professional standing army (with related issues of state sovereignty, taxation, and a national government) dissipated with the end of the war when, in 1784, Congress discharged the entire Continental army, with the exception of eighty‐three soldiers to protect military supplies.

The Civil War generated large numbers of volunteers, but when it became clear that casualties would be heavy, portending an extended conflict, both North and South resorted to conscription. In 1862, the Confederacy made all healthy, white males between the ages of eighteen and thirty‐five eligible for three years of service, and those already in the army were required to stay for the duration of the conflict, whether their enlistment term ended or not. The North followed suit, but the draft met with much evasion, resistance and, on several occasions, actual rioting. The constitutionality of conscription during the Civil War never reached the Supreme Court, in large measure because President Abraham Lincoln suspended the writ of habeas corpus, thus blocking state courts from the release of draft resisters and other protesters.

The decision of President Woodrow Wilson to rely primarily on conscription rather than volunteers in 1917 for military service during World War I made a legal challenge to the draft necessary if only to ensure that it received judicial sanction from the Supreme Court. This it did when Chief Justice Edward White, on behalf of a unanimous bench, upheld the Draft Act (Arver etal. v. United States, 1918) and relegated state authority over the militias to a very limited level, subordinate to the federal government. Effectively raising military forces for both World War II and the Korean Conflict, by 1968 the draft reflected the collapse of consensus that accompanied the Vietnam War. In 1973, it was eliminated, and replaced with an all volunteer armed force—a decision resulting from political rather than military consideration. Registration for a national draft continues, however, and conscription remains readily available, now causing ambivalence rather than the antagonism of an earlier era.

See also War.

Bibliography

John Whiteclay Chambers II , To Raise an Army: The Draft Comes to Modern America (1987).
Stephen M. Kohn , Jailed for Peace: The History of American Draft Law Violators, 1658–1985 (1986).

Jonathan Lurie