The Selective Service: Its Constitutional History

The Selective Service System, also known as the Selective Draft Law Cases, has been a part of the United States Constitution since the Revolutionary War era. The system was first used during World War I, when the Supreme Court ruled in Arver v. United States (1918) that the draft did not violate the Constitution. The constitutionality of the Military Selective Service Act (MSSA) has been consistently upheld by the U.S. Supreme Court, with the most recent case being Wayte v. United States in 1985. The act requires all male citizens between the ages of 18 and 25 to register for the draft, with registration taking place within 30 days of their 18th birthday. However, in recent years, there have been legal challenges to the male-only draft, with a federal appellate court judge ruling it unconstitutional in 2019.

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Conscription in the US has a long history, dating back to the Revolutionary War

Conscription in the US has a long and controversial history, dating back to the Revolutionary War. During the Revolutionary War, the states occasionally 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 naval impressment. The 1789 Constitution grants Congress the power to create its own armies and navy for unlimited purposes, and to fund and regulate state militias that can be called upon for federal law enforcement and domestic defence.

In the early US, the militia system required able-bodied, non-enslaved males to enrol in the militia, undergo military training, and serve in war or emergencies. The Continental Congress in 1778 recommended that the states draft men from their militias for one year's service in the Continental Army. This first national conscription was applied irregularly.

The US has used systems of conscription since the Revolutionary War era, including during World War I, and in the first peacetime draft in the nation's history, enacted in 1940. The draft was used to fill manpower needs during World War II, and was reenacted after the war to maintain necessary military manpower during the Cold War. From 1948 until 1973, men were drafted during both peacetime and periods of conflict to fill vacancies in the armed forces that could not be filled by volunteers.

The draft was also used during the Vietnam War, with almost one-third of all eligible men conscripted during the period of 1965-69. The draft induced many men to volunteer for military service, especially in the Army, which accounted for nearly 95% of all inductees during the Vietnam War era. The Selective Service System was placed in "deep standby" in 1975, but was revitalised in 1979 to upgrade its capability for rapid mobilisation in an emergency. Draft registration was resumed in 1980, and the Supreme Court upheld the constitutionality of the Military Selective Service Act.

Conscription has faced strong opposition throughout American history, with critics arguing that it violates individual rights and amounts to involuntary servitude. In 2019, a federal district court deemed the Military Selective Service Act unconstitutional on the basis that it requires only men to register, violating the Equal Protection Clause.

The US Constitution gives Congress the power to raise and support Armies

The Framers of the Constitution gave these powers to Congress to ensure that the legislature had several checks on the president's ability to wage war as commander-in-chief of the military. The Framers were aware that historically, the power to raise and maintain armies had been used to the detriment of the liberties and well-being of Englishmen. By allocating these powers to Congress, the Framers intended to prevent excessive control over the military by a single branch of government.

The power to raise and support armies includes the power to enact conscription or a draft. The Selective Service System, also known as the draft, has been used in the United States since the Revolutionary War era, including during World War I, the Vietnam War, and the lead-up to World War II. The constitutionality of conscription has been challenged several times in court, but it has consistently been upheld as constitutional, even during peacetime.

The Military Selective Service Act (MSSA), which requires men but not women to register for the draft, has been upheld by the US Supreme Court. However, in 2019, a federal district court judge ruled that requiring only men to register would be unconstitutional under the Equal Protection Clause due to the removal of most restrictions on women serving in the military. This decision was appealed, and as of May 2025, the government is awaiting a decision from the 5th Circuit Court of Appeals.

The Selective Service System has been in standby mode since 1973

In 1973, Secretary of Defense Melvin Laird announced the creation of an all-volunteer armed force, negating the need for the military draft. The Selective Service System remained in existence, however, as a standby measure to support the all-volunteer force in case of an emergency. Registration was suspended in 1975, and the system entered what was termed "deep standby".

Since 1973, there have been several efforts to revitalise the Selective Service System and prepare it for rapid mobilisation in an emergency. Registration resumed in 1980, and laws were passed requiring young men to register with the Selective Service System in order to receive federal grants, loans, and certain government benefits.

The Military Selective Service Act, which provides for a male-only draft, has been deemed unconstitutional by some courts, with arguments centred around the Equal Protection Clause. However, the constitutionality of the Act has been consistently upheld by the U.S. Supreme Court, which has ruled that "few interests can be more compelling than a nation's need to ensure its own security".

Today, men aged 18-25 can register online or by completing a form at the post office. While registering does not mean joining the military, failure to do so can result in imprisonment and/or a fine. The Selective Service System thus continues to stand as a measure to ensure the nation's security, ready to be activated if and when the need arises.

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The Military Selective Service Act mandates registration for men aged 18-25

The Military Selective Service Act mandates registration for men aged 18–25. This Act has been a feature of American military policy for over a century, with its roots in the country's early history.

The Selective Service System, as we know it today, was not in use during the Revolutionary War era, but the United States has used conscription since then. The Constitution, with its grant of powers to the central government, laid the foundation for the Selective Service Act. Article I, Section 8, Clause 12 of the Constitution states:

> "The Congress shall have Power To …raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years…."

The interpretation of this clause has been a point of contention, with critics arguing that it should be limited to voluntary enlistments. However, the Supreme Court ruled in Arver v. United States (1918) that the draft did not violate the Constitution. This case, also known as the Selective Draft Law Cases, set a precedent for the constitutionality of the draft during both wartime and peacetime.

The Military Selective Service Act has undergone several changes throughout history. During World War I, all male citizens aged 21 to 30 were required to register for the draft. In 1940, prior to World War II, the first peacetime draft in US history was enacted, and the system remained in use until 1973. The Selective Service Act was reinstated in 1980, and since then, the Supreme Court has heard and upheld its constitutionality in several cases.

Today, men aged 18–25 are required to register for the Selective Service System, which serves as a list of names to draw from in case of a national emergency requiring rapid expansion of the Armed Forces. Registration can be done online or by completing a form at the post office. Failure to register is considered a violation of the Military Selective Service Act and can result in legal consequences.

While the Act has been consistently upheld, there have been challenges to its male-only draft provision. In 2019, a federal district court deemed the male-only draft unconstitutional due to the removal of restrictions on women serving in the military. This decision was appealed, and the outcome of the appeal is not mentioned in the sources provided.

The constitutionality of the Act has been challenged, with arguments citing the 13th Amendment

The constitutionality of the Military Selective Service Act (MSSA) has been consistently upheld by the U.S. Supreme Court. However, in February 2019, a challenge to the MSSA, which provides for the male-only draft, was deemed unconstitutional by Judge Gray H. Miller in the United States District Court for the Southern District of Texas. Miller's decision was based on the Supreme Court's past argument in Rostker v. Goldberg (1981), which had found the male-only draft constitutional because the military then did not allow women to serve. Since the Department of Defense has lifted most restrictions on women in the military, Miller ruled that the justifications no longer apply, and thus the act requiring only men to register would be unconstitutional under the Equal Protection Clause.

The 13th Amendment to the U.S. Constitution, adopted in 1865, abolished slavery and prohibited involuntary servitude, with the exception of punishment for a crime. The amendment states, "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction." The Selective Draft Law Cases of 1918, which upheld the constitutionality of the Selective Draft Law, addressed the 13th Amendment's protection against involuntary servitude. The Supreme Court ruled that the 13th Amendment did not prevent the federal government from implementing a military draft, as the grant to Congress of the power to "raise and support armies" includes the power to compel military service.

Some have argued that being forced to join the military is a form of involuntary servitude prohibited by the 13th Amendment. This argument was raised in the Selective Draft Law Cases of 1918, where the Supreme Court concluded that the 13th Amendment did not prohibit conscription. The Court's decision was based on the understanding that conscription was necessary for the country's defence and that the power to compel military service was included in the power granted to Congress to "raise and support armies."

The original meaning of the 13th Amendment, as argued by some, did not intend to ban conscription. At the time of the amendment's adoption, conscription was regularly used, and the authors of the amendment chose not to name or explicitly prohibit the practice. This suggests that conscription was not considered a form of involuntary servitude that the amendment aimed to abolish.

While the Supreme Court has upheld the constitutionality of the Selective Service Act, there have been challenges and debates regarding its compatibility with the 13th Amendment. The Court has ruled that conscription is necessary for national defence and that it falls within Congress's power to "raise and support armies." However, critics argue that being forced to join the military violates the amendment's prohibition of involuntary servitude.

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