Is the draft constitutional?

The draft is constitutional as long as it’s written in accord with practices of the two world wars, which allowed some objections to U.S. armed service. Currently, the right to political free speech allows a drafted individual to seek deferral, but not of service. They can only defer combat duty as a conscientious objector.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 15, 2021

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The draft is constitutional as long as it is written in accord with the practices of America’s two world wars, which allowed some objections to armed service.

Is there still a military draft?

No. There has been no mandatory draft for military conscription since 1973. However, case law upholding the constitutionality of federal draft laws stems from challenges to the manpower drafts in World War I.

If there is no military draft, why do I have to register?

The constitutionality of draft registration has been challenged, but the Supreme Court ruled six to three in favor of a registration regime in peacetime.  

Does the draft violate constitutional amendments against slavery?

One might argue that the draft is a form of indentured servitude by which the government forces an individual to “work” with jail time consequences for refusal. This argument is viewed as specious and has never proven the draft to be unconstitutional.

Does the draft violate freedom of political expression?

Political consensus since World War II has supported the power of Congress to order a peacetime, as well as a wartime, draft. Historically, this is not the predominant philosophy of America as a nation. In 1863, deadly ant-draft riots swept New York, leading to hundreds of deaths in three days of clashes between civilian protesters and government soldiers.

“Political free speech” now allows a drafted individual to seek deferral not of service, but of combat duty as a conscientious objector. In other words, the only constitutional argument against the draft that has been given real consideration is the argument supporting religiously-based objections.

How can the draft be constitutional while it is unconstitutional to force a conscientious objector to be drafted for combat duty?

By this argument, it does appear that the draft, while constitutional, may in some cases violate an individual’s constitutional rights. 

Will acceptance of the draft ever be changed?

No “conscription act” has yet been found to be unconstitutional, but this does not mean all possible future acts of conscription will be constitutional.

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