Selective Draft Law Cases Arver v. United States 245 U.S. 366 (1918)

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SELECTIVE DRAFT LAW CASES Arver v. United States 245 U.S. 366 (1918)

In 1917, Congress authorized conscription as a means of rapidly increasing the strength of the armed forces. All males between twenty-one and thirty were to register for the draft, and up to one million were selectively to be called up. The six petitioners were all convicted of failure to register.

A unanimous Supreme Court, speaking through Chief Justice edward d. white, rejected each of several constitutional arguments against the draft law. Since the power to raise armies is specifically granted, the Court held that Congress might adopt any means necessary to call the required number of men into service. Compulsion might be used since "a governmental power which has no sanction to it … is in no substantial sense a power." A number of ingenious arguments based on the historic nature and uses of the militia were rejected because the power to raise armies is distinct from the militia clause.

For the argument that conscription violated the thirteenth amendment, White had only eloquent scorn: "We are unable to conceive upon what theory the exaction by the government from the citizen of his supreme and noble duty of contributing to the defense of the rights and honor of the nation … can be said to be the imposition of involuntary servitude."

Dennis J. Mahoney
(1986)