Selective Draft Law Cases - Further Readings

Appellants
Joseph F. Arver, et al.
Appellee
United States of America
Appellants' Claim
That the Selective Draft Act of 1917 violated Article I, Section 8 and the First and Thirteenth Amendments, among other provisions of the Constitution.
Chief Lawyers for Appellants
T. E. Latimer, Edwin T. Taliferro, Harry Weinberger
Chief Lawyer for Appellee
John W. Davis, Solicitor General
Justices for the Court
Louis D. Brandeis, John Hessin Clarke, William Rufus Day, Oliver Wendell Holmes, Joseph McKenna, James Clark McReynolds, Mahlon Pitney, Willis Van Devanter, Edward Douglass White (writing for the Court)
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
7 January 1918
Decision
Denied the appellants' claim.
Significance
The case marked the Supreme Court's first hearing of a legal challenge to thefederal government's power to draft men into the military. The Court's decision upheld that power.
For most of its early history, the United States relied on volunteers to fight its wars. The first national draft, or conscription, occurred during the Civil War. Relative to the North, the Confederacy had a small population, and it needed a draft to ensure that it had enough soldiers. The Union followed with its own draft in 1863. Not all the potential northern soldiers, however, willingly embraced the draft.
The Union's 1863 Conscription Act let wealthier Americans hire other people to fulfill their military obligations. This provision stirred anger among thepoor, who felt that the burden of war was falling on their shoulders. Riots broke out in cities across the North, including a particularly bloody one in New York. The Conscription Act, however, was never tested in the Supreme Court, so the legality of a national draft was left unchallenged until World War I, when Congress instituted another draft.
The Selective Service Act of 1917 did not allow substitutes, as the 1863 lawhad, and it did allow for conscientious objector status: men who opposed warfor religious reasons could avoid combat. Still, many people opposed the draft law. Although almost 24 million men did register for the draft, another twoto three million did not. Hundreds of thousands more did register, but thenfailed to report when drafted or deserted soon after. The U.S. government arrested many of these men who tried to avoid military service, and some of themchallenged the draft law.
A "Supreme and Noble Duty"
Joseph Arver was one of the many Americans who did not register for the draft. After his arrest, Arver, along with a number of other draft resisters fromhis home state of Minnesota, brought suit against the federal government. TheSupreme Court heard the cases of the draft resisters together. Arver and theothers argued that Congress had no explicit constitutional right to impose adraft, and even if it did, the particulars of the 1917 act were unconstitutional, as they tried to give legislative powers to the president and state officials. Furthermore, forced military service was a form of involuntary servitude, which was forbidden by the Thirteenth Amendment. Lastly, the provisionsfor conscientious objector status violated the First Amendment's prohibitionagainst the establishment of religion.
A unanimous Court rejected all of the appellants' arguments and upheld the Selective Service Act. Chief Justice White began his decision by examining Article l, Section 8 of the Constitution, which gives Congress the power to raiseand support armies, using all laws "necessary and proper" to execute that power. To White, those words were clear: "As the mind cannot 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."
White went on to say that just governments have a duty to their citizens, andthe citizens have a "reciprocal obligation" to provide military service in times of need, when the state compels that service. On almost all the other points raised by Arver and the others, White quickly dismissed their merit, especially the argument referring to the Thirteenth Amendment. White saw no comparison between involuntary servitude and " . . . the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation . . . "
After the Selective Draft Law Cases, the government had a clear rightto conscript soldiers; however, arguments arose over specific provisions of subsequent draft laws. Most of the cases that reached the Court dealt with conscientious objector status. The Court has upheld the government's right to make an objector perform alternative service, rather than face combat. In Clay v. United States (1971), with former heavyweight boxing champion Muhammad Ali as the appellant, the Court cited a three-part test for determining if someone had legitimate claim to conscientious objector status: the claim isbased on religious beliefs, the claimant opposes war in any form, and the belief is sincere.
America's last draft ended in 1973, as the Vietnam War was drawing to a close. Draft registration ended two years later, but President Jimmy Carter reintroduced it in 1980. The next year, in Rostker v. Goldberg, the Court denied a claim that the draft registration was unconstitutional because it didnot include women. Another draft case, in 1984, gave Congress the power to withhold federal student aid to men who refused to register for the draft.
Related Cases

• United States v. O'Brien, 391 U.S. 367 (1968).
  
• Clay v. United States, 403 U.S. 698 (1971).
  
• Rostker v. Goldberg, 453 U.S. 57 (1981).
  
• Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841 (1984).