Selective Draft Law Cases (1918), Selective Service Act of 1917

Shortly after his message asking Congress to declare war on Germany in April 1917, Wilson sent Congress a measure providing for the drafting of young men into the army. There had never been national conscription of this sort before, and although Congress enacted the measure, opponents, quickly took the issue to the courts, where it was upheld under the government’s war powers.

Despite their resentment at Wilson’s high-handedness, members of Congress recognized that conscription would be necessary, and on May 17, 1917, Congress enacted Wilson’s draft law, which opponents of the war immediately challenged. Lower courts expedited the various draft cases; men could not be allowed to die should the law be unconstitutional, nor could the government’s mobilization be derailed if it were valid. Six suits, grouped together as the Selective Draft Law Cases came before the Supreme Court for argument in December 1917. All involved convictions for obstructing or resisting conscription.

Harris F. Taylor, the chief counsel for the defendants, berated Congress for expanding the executive power. Wilson had already become a political dictator, Taylor charged, and his decision to commit American troops abroad—a power nowhere found in the Constitution—had plunged the country into a military dictatorship as well. Taylor claimed that the militia clause (Article I, Section 8) limited their use ‘‘to execute the Laws of the Union, suppress Insurrections and repel Invasions.’’ Militia troops could not be used, therefore, to prosecute foreign conflicts.

The Court handed down its decision the first week of January 1918; in almost summary fashion, it unanimously dismissed all the arguments raised against the law. Chief Justice Edward White noted Congress’s explicit powers in Article I to ‘‘provide for the common Defence,’’ ‘‘to raise and support Armies,’’ ‘‘to provide and maintain a Navy,’’ and ‘‘to declare War.’’ ‘‘As the mind cannot conceive an army without the men to compose it,’’ White asserted, ‘‘on the face of the Constitution the objection that it does not give power to provide for such men would seem too frivolous for further notice.’’ The Court also made short shrift of the argument that the Constitution only allowed a volunteer army and did not authorize conscription. The Chief Justice noted that just as the government owed certain obligations to its citizens, so the people had reciprocal duties to the state, including rendering military service, which the government could compel. Beyond that, Congress could deploy the army anywhere it deemed necessary, even overseas.

Most Americans had expected the Court to sustain the draft law. Yet even if the antidraft arguments failed to persuade a single member of the Court, they did raise at least two issues that would eventually receive more serious attention.

First, the act allowed the president to delegate nearly all the tasks involved in selecting and processing the conscripts to local draft boards. The Court had held laws involving delegation of powers constitutional ever since the question first came before it in Field v. Clark (1892), but none of the previous statutes had been as vague in prescribing guidance or oversight. In the various war statutes Congress merely set out general goals and gave the president carte blanche to carry them out. At some point, the Court would have to determine how much power Congress could delegate and how much discretion the president could exercise.

A second issue involved the generous exemption from the draft that Congress allowed ordained ministers and theology students, as well as exemption from combat granted to members of some sects that opposed war on religious grounds. The Court shrugged off a challenge that this provision violated the First Amendment because it amounted to an establishment of religion. White casually derided the unsoundness of the claim as well as a collateral argument that the limited exemptions violated the free exercise clause. In the future, the Court would wrestle with the problem of conscientious objectors in a number of cases.

MELVIN I. UROFSKY

References and Further Reading

• Chambers, John Whiteclay, II. To Raise an Army: The Draft Comes to Modern America. New York: Free Press, 1987.

Cases and Statutes Cited

• Field v. Clark, 143 U.S. 649 (1892)
• Selective Draft Law Cases (Arver v. United States), 245 U.S. 366 (1918)