Unwilling Warriors: An Examination of the Power to Conscript in Peacetime

Britt, Jason | January 1, 2009

As military involvement overseas persists, pressure to increase the size of the armed services will continue. While higher bonuses and lower recruiting standards relieve this pressure, these measures may not be enough and an active military draft is an attractive alternative. Indeed, although the military draft has been inactive for nearly thirty years, current U.S. involvement overseas has aroused discussion for reactivation of the military draft. In light of this call to reactive the draft, this Student Comment proposes a framework for analyzing the constitutionality of an active military draft under the Thirteenth Amendment. Specifically, this Comment argues that courts have a place and duty to interpret the constitutionality of a military draft. Under this duty, courts should strictly construe the military draft and require the government to show a compelling state interest in order to employ the draft. Moreover, this Comment argues that under such strict scrutiny, and in light of the purpose of the draft in American history, a peacetime military draft could never pass constitutional under the Thirteenth Amendment. Indeed, under a strict scrutiny analysis, courts will realize that the draft is an inefficient mechanism to deal with the needs of military involvement overseas, and should only be utilized in the most extreme and severe circumstances.