Selective Draft Law Cases

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245 U.S. 366 (1918), argued 13–14 Dec. 1917, decided 7 Jan. 1918 by vote of 9 to 0, White for the Court. Not until after the passage of the Selective Service Act of 1917 was the authority of the federal government to draft citizens for military duty tested. Convicted violators of the act appealed to the Supreme Court on grounds that the draft was incompatible with free government and individual liberty, that congressional authority to raise armies was limited by the scope and purposes of the constitutional clause providing for calling the state militia into national service, and that the draft was in conflict with the Thirteenth Amendment's prohibition of involuntary servitude and the First Amendment's religion clauses. Chief Justice Edward D. White, citing Anglo-American history and the common practice of nations, ruled that citizenship carried with it a clear obligation to perform the “supreme and noble duty of contributing to the defense of the rights and honor of the nation” (p. 390). How such service could be characterized as involuntary servitude or how the act with its religious exemption for conscientious objectors could be viewed as establishing religion, White was at a loss to understand. Most of the opinion was addressed to a refutation of the claims that the militia clause imposed limitations on the broad authority of Congress to raise and support armies. Neither in 1918 nor later would the Court challenge congressional authority to institute a draft.

John E. Semonche

Subjects: Law.

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