US draft remains in place on contingency basis


By Harold B. Wolford - Veterans Corner



Editor’s note: This is part one of a six-part series on conscription (the draft).

Conscription in the United States, commonly known as the draft, has been employed by the federal government of the United States in six conflicts: the American Revolutionary War, the American Civil War, World War I, World War II, the Korean War and the Vietnam War.

The fourth incarnation of the draft came into being in 1940 through the Selective Training and Service Act. It was the country’s first peacetime draft. From 1940 until 1973, during both peacetime and periods of conflict, men were drafted to fill vacancies in the United States Armed Forces that could not be filled through voluntary means.

Active conscription came to an end in 1973 when the United States Armed Forces moved to an all-volunteer military. However, conscription remains in place on a contingency basis and all male U.S. citizens, regardless of where they live, and male immigrants, whether documented or undocumented, residing within the United States, who are 18 through 25 are required to register with the Selective Service System. United States federal law also continues to provide for the compulsory conscription of men between the ages of 17 and 45 and certain women for militia service pursuant to Article I, Section 8 of the United States Constitution and 10 U.S. Code § 246.

In colonial times, the 13 colonies used a militia system for defense. Colonial militia laws — and after independence those of the United States and the various states — required able-bodied males to enroll in the militia, to undergo a minimum of military training, and to serve for limited periods of time in war or emergency. This earliest form of conscription involved selective drafts of militiamen for service in particular campaigns. Following this system in its essentials, the Continental Congress, in 1778, recommended that the states draft men from their militias for a year of service in the Continental Army; this first national conscription was irregularly applied and failed to fill the Continental ranks.

For long-term operations, conscription was occasionally used when volunteers or paid substitutes were insufficient to raise the needed manpower. During the American Revolutionary War, the states sometimes drafted men for militia duty or to fill state Continental Army units, but the central government did not have the authority to conscript, except for purposes of naval impressments (recruitment by force). Post ratification of the Constitution, Article I.8.15, allows for Congress to conscript. Giving it the power to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions; Section 8.16 of the same article allows Congress to provide for organizing, arming, and disciplining the Militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress. Article II.2.1 makes the president the commander in chief of the militia. The Second Amendment protects the infringement of the militia regulations being necessary to the security of a free state. The Second Militia Act of 1792 defined the first group who could be called up as “each and every free able-bodied white male citizen” between the ages of 18 and 45.

During the War of 1812, President James Madison and Secretary of War James Monroe unsuccessfully attempted to create a national draft of 40,000 men. The proposal was fiercely criticized on the House floor by anti-war Congressman Daniel Webster of New Hampshire.

The United States first employed national conscription during the American Civil War. The vast majority of troops were volunteers; of the 2,200,000 Union soldiers, about 2% were draftees, and another 6% were substitutes paid by draftees.

The Confederacy had far fewer inhabitants than the Union, and Confederate President Jefferson Davis proposed the first conscription act on March 28, 1862; it was passed into law the next month. Resistance was both widespread and violent, with comparisons made between conscription and slavery.

Both sides permitted conscripts to hire substitutes to serve in their place. In the Union, many states and cities offered bounties and bonuses for enlistment. They also arranged to take credit against their draft quota by claiming freed slaves who enlisted in the Union Army.

Although both sides resorted to conscription, the system did not work effectively in either. The Confederate Congress on April 16, 1862, passed an act requiring military service for three years from all white males aged 18 to 35 not legally exempt; it later extended the obligation.

The United States Congress passed the Militia Act of 1862, which mirrored the 1792 Act except to allow persons of African descent to serve in the militias and authorizing a militia draft within a state when it could not meet its quota with volunteers. This state-administered system failed in practice, and Congress passed the Enrollment Act of 1863, the first genuine national conscription law, replacing the Militia Act of 1862, which required the enrollment of every male citizen and those immigrants (aliens) who had filed for citizenship, between 20 and 45 years of age, unless exempted by the Act. It set up under the Union Army an elaborate machine for enrolling and drafting men. Quotas were assigned in each state, the deficiencies in volunteers required to be met by conscription.

Still, men drafted could provide substitutes, and until mid-1864, could even avoid service by paying commutation money. Many eligible men pooled their money to cover the cost of any one of them drafted. Families used the substitute provision to select which member should go into the army and which would stay home.

The other popular means of procuring a substitute was to pay a soldier whose period of enlistment was about to expire —the advantage of this method was that the Army could retain a trained veteran in place of a raw recruit. Of the 168,649 men procured for the Union Army through the draft, 117,986 were substitutes, leaving only 50,663 who had their personal services conscripted. There was much evasion and overt resistance to the draft, and the New York City draft riots were in direct response to the draft and were the first large-scale resistance against the draft in the United States.

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By Harold B. Wolford

Veterans Corner

Harold B. Wolford is president of the Vietnam Veterans of America Chapter 1095. He served in the United States Army from 1970 to 1973.

Harold B. Wolford is president of the Vietnam Veterans of America Chapter 1095. He served in the United States Army from 1970 to 1973.