What is conscription and how has it been applied in conflicts in American history?
While it was expected for local men to join the local or state militia from colonial times through the onset of the Civil War, men were not forced into service prior to the acts of conscription passed by both the confederacy and the government of the United States during the Civil War. Unlike the practice of voluntary enlistment, conscription simply means that a defined segment of the population is obligated to report and serve as prescribed by government authorities. The Selective Service of the United States government is responsible for handling the registration of potential draftees and executing the process of the draft should one be called for by law. The Selective Service has performed this function since being established in 1917.
Currently, in the United States it is mandatory for all men to be registered with the selective service by the time they reach their eighteenth birthday.
Since the Civil War, conscription has been utilized in World War I, immediately prior to and during World War II, in the Korean War, and during the Vietnam War. Each case of the draft reveals characteristics of the society which employed it. In some cases conscription was largely unpopular to the point of fomenting significant civil unrest and violence. In others, conscription was generally and willingly supported as a righteous duty. In perhaps our most popularly supported war, World War II, President Roosevelt had been able to institute a draft in 1940 before America had been attacked. However, despite our fighting in response to an aggressive attack, there was still resistance to being compelled to fight. During World War II approximately 40,000 Americans that were called to duty pursued alternative courses of action as conscientious objectors or draft dodgers.
At times policies for conscription have unfairly discriminated against lower classes, African Americans, women, and gays. Not surprisingly, citizens have at times challenged the legality of conscription and/or policies regarding conscription that are exclusive. Most recently, opponents of the decisions to exclude women from registering for the selective service have not been able to successfully challenge in court. In
(1981) the Supreme Court reversed a Pennsylvania district court’s ruling that women shouldn’t be excluded by virtue of discrimination, namely violation of women’s due process outlined in the Fifth Amendment. The Supreme Court’s ruling favored the Department of Defense’s policy that women should be excluded from combat.
The popular saying ‘Don’t ask, don’t tell’ reflects the objective of the military to exclude gays from service.
My objectives for the unit include having students be able to research and describe an historical example of how the draft was used in American history. More specifically, I want them to demonstrate orally and in writing how the draft affected the armies of the Confederacy and the Union during the American Civil War 1861-1865. In addition, I want students to explore the ideological and moral justifications of conscription. I imagine my unit will address questions such as, whom or what gives the government authority to issue an act of conscription and under what circumstances is this authority valid?
Just and Unjust Wars
, Michael Walzer declares that “War is hell whenever men are forced to fight, whenever the limit of consent has been breached”
Walzer’s statement invites discussion of the moral implications of a draft. As I mention in my rationale for this unit, compelling young people to fight as has been done in five wars in United States history, directly relates to students coming out of high school. First, they are in the demographic that has been historically drafted. Secondly, by nature of their state of development, they are adolescents who are often sensitive to being “forced” to do things they perceive as unjust such as homework, cleaning their room, and not running up the cell phone bill. Thirdly, they are developing a consciousness about how people act in the public sphere. They are in essence forming an outlook about the norms of the rights and responsibilities of being a citizen that they will increasingly test as they become more active in the public sphere. Personally, I do not enjoy anyone ordering me to complete any task to which I can see no rational justification. Being forced into a position to kill or harm another person let alone be killed or maimed, is about as extreme a torture as one can contrive. So I can imagine that any device or law that would compel men and women to fight without their consent would be viewed by young people as an equally egregious affront to personal liberty.
Yet we all cannot act on our personal wants and desires in society all of the time. As political theorists will attest, living in a society involves reinforcing some mutually shared values and practices at the expense of some personal ones. The social contract theory explains cooperation in society on this basis. Nevertheless, one can make the strong assertion that agreement over driving on the right side of the road, or not playing my radio at full volume as I drive around the streets, or my surrendering 1/3 of my hard earned salary to the government for taxes are still perhaps small issues in comparison to being compelled to kill or be killed. I am interested in gaining student feedback on this score.
While I won’t say that all students should agree to be drafted or not consent to government authority in this regard, I will say that students will address the issue as a historical phenomenon with moral, political, and legal dimensions. The fact that legal precedent grants the government the authority to explore, develop, and implement a plan of conscription suggests that students and the public at large should be prepared to discuss, consent, and/or contest compulsory government service as a policy. This is an exercise in understanding their responsibilities as citizens.
Our examination of citizens’ involvement in armed conflict from colonial times through the present will reveal that time, place, and personal circumstances offer different and sometimes compelling reasons to fight. On other occasions the reasons for fighting and compelling others to fight are less clear. Subsequently it would be my goal in conducting this unit for students to create and personalize a spectrum for their distinguishing between the most essential conditions to cooperate in a fight and the most superfluous ones. Because consent appears to be the measure by which one can judge the legitimacy of a war, having an informed young public that can help influence public policy would be the best insurance against the haphazard (i.e. immoral) employment of youth to wage war.
If my students are to gain insight into the matter, one of the first steps is for them to understand the evolution of conscription through historical developments. Moral and legal justifications of conscription are rooted in the colonial period when an obligation existed for able bodied men to protect and defend their colonies or small towns from attacks from Native Americans, the French, rival colonies, and later the British. While some colonial founders such as William Penn may have advocated a harmonious existence with Native Americans and non-English immigrants, others, such as, Puritan New Englanders saw a moral obligation to tame the wilderness and the wild savages that occupied it. Many Puritan sermons were quite blunt in this regard. It was not only necessary to defend their colonies but it was also just to wage war to subdue the savages of the wilderness. As competition for resources between the British colonists, the French and Native Americans escalated into armed or guerrilla conflicts, the necessity of protection must have minimized objections for serving in a community’s defense.
In times of danger it was obligatory to serve in the local militia. In times of wider conflict, militias could be grouped for common defense. Such was the case of the Continental Army under George Washington. The importance of this right to organize for defensive purposes has been recognized by the founders in the inclusion of the 2
Amendment to the Bill of Rights. While the militia system continued through the Civil War, a movement toward a professional National Army (flirted with by Hamilton in Washington’s regime) gained footing in the Mexican American War 1846-48. In this conflict, the fighting force was comprised to a large degree from individual enlistments. The military success of a national volunteer army in the Mexican American War undoubtedly gave Lincoln the confidence to Lincoln to believe that success with volunteer enlistments could be duplicated at the onset of hostilities in the Civil War.
The prolonged conflict suffocated any hopes that either side could endure without mustering more manpower. The Confederacy issued a draft first and extended the tour for all enlisted men. The Union resorted to a draft, or conscription law, only after an attempt to compel state militias to produce more men proved lacking. Was it moral to issue this first national draft?
Other essential questions worth exploring include:
What is conscription?
How and why have drafts been held?
How are drafts, wars, and laws related?
When have drafts been held in American history?
Where does the authority for a draft come from?
How did conscription contribute to the outcome of the civil war?
My aim in the unit is to have students explore the historical precedence of conscription particularly as it applies to the Confederacy and Union during the American Civil War. Building upon the issues raised in examining conscription in the Civil War, students will be able to explore the development of conscription as it applies to subsequent conflicts in American history. They will ultimately be able to express an informed opinion about military conscription and/or national service.
Some major issues that are apparent when one examines conscription over time from the Civil War up to the present include popular or righteous feelings about conscription versus unpopular conscription (lack of consent), discrimination in conscription, and whether or not conscription is legal, or, constitutional. Conscription in the Civil War serves as suitable foundation from which to start because some of the most common draft-related issues present themselves in the Civil War. Subsequent drafts in later wars may parallel or better expose these issues. Students will compare and contrast their findings as we progress through the unit. For example, protests over conscription in New York in 1863 grew angry and violent, not unlike some of the protests which occurred in the late 1960’s and early 1970’s that were associated with the Vietnam War. However, prior to the United States’ official declaration of war against Japan and Germany, which occurred in the immediate aftermath of the Japanese attack at Pearl Harbor, Hawaii, in December 1941, President Roosevelt had already effectively begun implementing conscription without any significant public resistance. Like the Confederacy in the period leading up to and throughout the Civil War, President Roosevelt was able to effectively fashion conscription as a righteous and necessary practice to repel a dangerous aggressor. It is consistent with Just War Theory to be able to defend oneself against an aggressor.
Not surprising each had little trouble calling people to arms.
Attempts to fashion conscription as righteous can backfire if the process of drafting citizens discriminates. While most northerners could support the idea of preserving the union, specific groups angrily protested their perception of bearing an unfair degree of the effort to staff an army to fight. The evidence of whether or not Irish immigrants were the most victimized group may or may not totally support this popular stereotype. (See article- Which Poor Man’s Fight?). However, without question, the system of conscription employed by the union mostly affected the poor laboring class. One might argue that actually this occurs in every act of conscription. Those with the least money and political voice have always received the fewest exemptions. There certainly is evidence that Irish Americans angrily and violently disagreed with the Conscription Act of 1863. The New York Draft Riots of July 1863 not only show signs of violent protest-draft offices were torn up by angry mobs-but they unfortunately demonstrate how other groups became unfairly targeted as scapegoats. Seeing the war as a conflict to free southern slaves, the violent mostly Irish mobs targeted African Americans as the cause of the draft. Published accounts of the riots and particularly the targeting of African Americans during the riots are well-documented.
Parallels again can be made to the draft in the Vietnam War. While the percentage draftees was only 25% of the total fighting force, 76% of those drafted were of lower to middle class backgrounds.
I wonder if some of the atrocities alleged to have been committed by United States soldiers against civilians in Vietnam involved misappropriating anger just as the Irish mobs of New York targeted African Americans during the 1863 Draft Riots.
I bring up the point because over time, many citizens have challenged conscription as immoral. Is it moral to mandate another to fight, indeed to kill, another person? If so under what circumstances should this be morally acceptable? It seems fair and responsible that students explore the ethical dimensions of conscription. It is equally fair for the purpose of values clarification that the question on the other end of the spectrum be asked, “Is it moral not to fight when one’s community is under attack or being threatened?” These are difficult but arguably essential questions everyone should address.
Others have raised questions over the legality of conscription. Governor Seymour of New York initially and openly challenged the legality of the 1863 Enrollment Act. In an attempt to quell the violence in New York he later called for compliance with the act. The Supreme Court has consistently ruled in favor of the legality of conscription since the first serious legal challenges were issued in World War I. In 1918, during World War I, the Supreme Court ruled in
Arver v. the United States
that the draft was constitutional. Furthermore, the Court made ruled against those who publicly denounced the draft. This occurred in
Schenk v. the United States
in 1919 and in
Gilbert v. Minnesota
in 1920. In the
United States v. Holmes
in 1968 the 7
circuit appellate court upheld the constitutionality of the draft during wartime. In 1981 the Supreme Court in
Rostker v. Goldberg
upheld the decision of excluding women from registering for the selective service.
When and how was national conscription incorporated into the practice of staffing the armies in the Civil War?
The North and South were not initially challenged in staffing their armies at the onset of the Civil War. As in the Mexican American War of 1846-48, men enlisted as volunteers for a specified term. In the Confederacy, soldiers initially enlisted for one year. In the Union, soldiers enlisted for three months. Considering the overwhelming advantage of resources that favored the Union, it was widely believed that longer enlistments would not be necessary. It is important to note that neither side broke precedence in staffing their army through volunteer enlistments and mobilizing state and local militias.
Volunteering, or enlisting in the army, differed substantially from the process of conscription, or being drafted. Volunteer soldiers often received a “bounty”, or signing bonus for enlisting. Lincoln’s initial call for volunteers announced a $ 300 bonus for enlistment. In order to urge enlistments in the latter years of the war, bounties increased dramatically to amounts reaching over $ 1,000.
Unfortunately corruption in the form of bounty jumping, or signing up in multiple locations, plagued the Union’s efforts to avoid drafting. I discuss Geary and Murdock’s treatment of this issue in the resources portion of this unit. Today, the army continues to offer signing bonuses for volunteers to enlist. Currently, the amount advertised is $ 40,000.
Substitution, the practice of sending a replacement was also allowed at times during conscription.
The need for men first spurred the South to move beyond a volunteer-based army. The Confederacy implemented a Conscription Act in 1862. Terms of the act included extending original enlistments until the war would end and it called for a draft of all white men between the ages of eighteen and thirty-five. A substitute could agree to serve in another’s place. As the war continued, the Confederacy, like the Union, amended their practice of conscription numerous times. One modification included adding and taking away exemptions. For instance, exemption for owners of 20 or more slaves was granted in 1862. Another ended the practice of substitution.
The practice of substitution was particularly problematic. Substitutes were often hired for significant amounts of money from the pool of foreigners who were not obligated due to their political status as non-citizens. In
“A very disagreeable business”: Confederate Conscription in Louisiana,
John Sacher reported instances where substitutes were paid $ 2500, $ 3000, and $ 3800 respectively. The practice gave little to no hope that a person of simple to poorer means could option out of conscription. Sacher adds that the need for additional men and complaints about the unfairness of substitution led to it being abolished in 1864.
Overall, Sacher reports that a variety of factors affected the result of conscription on the individuals of Louisiana. These included “ethnicity, wealth, and proximity to the Union Army” (which controlled New Orleans and other cities). Slaves and foreigners were not generally put to service until the end of the war. The wealthy could opt out through hiring substitutes or enjoying particular exemptions. The Union’s presence, in particular cities and areas of the countryside, prevented Southern conscription from being enforced. In sum, due to significant pockets of resistance, public objection to conscription, the inability to fashion more equal conscription rules without so many exemptions, and the ultimate fact that the Confederacy lost the war, Sacher concludes that Confederate conscription in the Louisiana was a failure.
Conscription in the Union poses many of the same issues. Was it fair, necessary, and/or effective? While contemporary critics target the commutation fee (paying a fee in place of serving) as a discriminating factor, convincing arguments can be made that not having commutation and allowing substitution as the South did, was more unfair. Commutation appears to have been purposefully designed as a leveraging factor against the potential for inflationary bidding for substitutes. Eugene Murdock, in
One Million Men, The Civil War Draft in the North
, and James Geary in
We Need Men
tend to support this conclusion. Their work exposes the most unfair characteristic of the draft as the corrupt cycle of raising and chasing bounties that developed in the Union in the last two years of the war. A comparison of Murdock’s work and Geary’s work is included in the Resources section of the unit.
The necessity of national conscription in the Union was most likely necessary given the ineffectiveness of the military in bringing the conflict to a quick and beneficial end. The ninety-day terms of enlistment for volunteers at the onset of the war were inadequate to keep a sufficient army in the field. When the Militia Act of 1862 failed to muster enough men from state militias, one of the only remaining sound courses of action was to implement a national draft. Arguably the fairest draft would have been totally impartial without exemptions, commutations or substitutions. However, Geary and Murdock point out essentially that conscription was designed not to abolish the system of volunteerism that had existed to date but to steer men toward enlisting as volunteers. There appears to have been conscious deliberation regarding the inclusion of commutation as a check against a bidding war for volunteers. Also, Congress tried to encourage volunteerism in the last two years of the war by approving increases in bounties.
Unfair, yet probably necessary for victory, the first national conscription has to be judged as ultimately effective but not necessarily moral. Overall, the number of men drafted was small in comparison to the number of volunteers. Yet, if the draft resulted in more men volunteering than being drafted, it would be difficult to quantify this effect just as it would be equally difficult to base the success of the draft solely on how many men were conscribed.