Legal Precedence for National Service in the United States

In Article I, Section 8 of the US Constitution, Congress is invested with the power "To raise and support Armies," "To provide for organizing, arming, and disciplining the militia," and "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Though the Constitution does not explicitly pronounce federal authority to conscript or impose service on US Citizens and documented immigrants in times of war and peace, this authority is implied and was already the established practice of the American Colonies and English Common Law.

This authority is further elaborated by the Militia Act of 1792, the Dick Act of 1903, and numerous Selective Service Acts during the 20th century.

Those who argue against any form of mandatory government service often invoke the prohibition of slavery as provided by the 13th Amendment.  This is an argument based on the premise that government service is a form of slavery, and it has always been rejected by the Supreme Court.  The clarifying decision on this matter was rendered in Butler v. Perry (1916).  A Florida man refused to help build a county road and was jailed for 30 days.  In response, he sued all the way to the US Supreme Court and lost.  

From the US Supreme Court (February 21, 1916): "[The 13th Amendment] introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state, such as services in the army, militia, on the jury, etc.  The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers." 

Another argument against mandatory service comes in the form of the 'due process clause' of the 14th Amendment, which holds that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law."  The flawed assumption in the 'due process' argument is that mandatory service is not already a sanctioned government power, or that any national service program is an arbitrary excercise of an existing law.  Neither could be further from the truth. 

The last card in the deck that detractors of national service grasp at is freedom of association under the 1st Amendment.  This line of thinking may or may not have validity depending on the type of national service program.  If the service venue is a federal or state agency, it is odd to think that any court would say that a US Citizen can choose whether or not to associate with his or her own government.  If it is a non-governmental service venue, freedom of association may stand.  Of course, there is a simple way to bypass the entire issue.  If every individual is given freedom of choice in how he or she serves (i.e. the A La Carte System), there is no grounds for contending that freedom of assoication has been denied. 

The bottom line is that to date all challenges to the sovereign right of the US government to conscript and impose mandatory service have been struck down.

Related court cases are as follows:

1820: Houston v. Morris

The US Supreme Court considered whether or not States could prosecute someone for failing to show up for federal service during the War of 1812.  The Court ruled that both Federal and State Governments held the power to prosecute.

1916: Butler v. Perry

A Florida man contended that his rights were violated when he was jailed for refusing to help build a county road.  The Supreme Court ruled that local, state, and federal governments could impose many forms of national service without violating the 13th Amendment.         

1918: Arver v. United States                                                                                                   

The US Supreme Court ruled that conscription during WWI was constitutional.

1919: Schenck v. United States

The US Supreme Court ruled that freedom of speech did not apply to criticizing a military draft.  As a result, Charles Schenck spent 10 years in prison for advocating against the draft.

1920: Gilbert v. Minnesota

The US Supreme Court reaffirmed its position in Schenck v. United States.

1934: Hamilton v. Regents

Several university student sought to be exempt from mandatory ROTC training.  The Supreme Court upheld the sovereign right of a State to mandate whatever military training it thought necessary for the of age males of the State.

1965: United States v. Seeger

The US Supreme Court ruled that atheists can be granted Conscientious Objector (CO) status.

1968: United States v. Holmes

The US 7TH Circuit Appellate Court affirmed that the government has the authority to draft during wartime.

1968: United States v. O’Brien

The US Supreme Court ruled that burning draft cards is an illegal form of criticizing the military draft and is not covered under freedom of speech.

1969: Brandenburg v. Ohio

The US Supreme Court granted more freedom of speech in advocating against the draft by establishing the “imminent lawless action” rule.  Basically, criticizing the draft is only illegal if it is in the context of an ongoing draft.

1971: Cohen v. California

The US Supreme Court granted more freedom of speech in advocating against the draft by overturning the conviction of a man wearing a jacket that displayed the phrase “Fuck the Draft.”

1971: Gillette v. United States

The US Supreme Court ruled that Conscientious Objector (CO) status can not be granted on the grounds of aversion to a specific war.  Additionally, if an individual is granted CO status, he can still be obligated to perform military service that doesn’t involve carrying a weapon, or another form of government service.

1981: Rostker v. Goldberg

Several men challenged the fact that the Selective Service System applies to only men.  They felt it unfair that women are not obligated to register.  The Supreme Court ruled that when it comes to questions of military need, Congress need not consider equality.