When the ACLU were Originalists
During the Vietnam War Era, the American Civil Liberties Union Challenged the Military Draft on Originalist/Constitutional Grounds
In an age when the American Civil Liberties Union (ACLU) find reasons to not defend the free speech rights of their political enemies and rationalize limits on a free press, one can be forgiven for thinking that this civil liberties group does not, in actuality, believe in the principles of either civilization or essential liberalism. In truth, historically speaking, the ACLU deserves enormous credit for the advancement of individual rights on both cultural and legal grounds. An illiberal ACLU is a relatively recent phenomenon. It is one that is regrettable but not inevitable, nor irreversible.
At one time, this writer considered writing about the devolution of the organization, particularly because of its noteworthy historical role in the security of individual rights and its once-respectable place in the pantheon of rights-asserting movements. Upon further reflection, however, it appeared more and more to yours truly that an altogether different approach may yield sweeter and more sating fruit. It is worth reminding Americans (regardless of worldview) what the ACLU actually used to be, the service they provided (both directly to those they defended and the broader political culture they strengthened), and why it is tragic that they have abandoned classically liberal and fundamentally American virtues. Doing so by scrutinizing a particular moment, and with the specific arguments they made regarding a significant controversy, allows for light to be spread and lessons to be learned to conservatives and progressives alike.
It is a case that puts wrinkles in the brains of everyone along the political spectrum. It reminds progressives the values that many have forgotten, just as it challenges modern conservatives to accept that the ACLU of yesteryear was the kind of organization that they too should be thankful for, even if they may disagree with certain conclusions the organization arrived at.
Thus the case at hand is before us for brief examination: In the wake of America’s involvement in Vietnam from the 1940s to the late 1960s, as the Vietnam War and particularly the military draft saw growing resistance, the American Civil Liberties Union utilized originalist legal arguments to challenge military conscription’s constitutionality.
The relevant case creates an opportunity for this writer as an intellectual historian, because it challenges both the political left and the political right (for whatever use those terms have at this point—if any). Progressives generally celebrate the ACLU and its history, even as they grow less liberal in the acceptance of viewpoint diversity. Conservatives, on the other hand, in recent times, have largely embraced free speech values but have not historically celebrated the actions of the American Civil Liberties Union. Moreover, progressives have traditionally defended the end of the military draft and have asserted the concept of a living constitution—thus rejecting notions of constitutional originalism. These two values (a living Constitution and the end of the draft), in the relevant case to be discussed briefly below, are instead in tension. Similarly, although conservatives have been the main champions of originalism for the past four decades, they have—more often than not—supported draft policies. In this case too, then, conservatives find two of their traditional values in opposition to each other.
As a politically independent historian who has little use for the parties that have represented the two political poles in the United States for the past half century or more, such a case can be used as a vehicle for challenging ideological assumptions. It can also be employed to pressure people of all persuasions to check those assumptions at the door when it comes to evaluating legal and intellectual history. The natural byproduct of such a project results in individuals being held to account for their biases and presuppositions.
First, however, there is historical knowledge necessary for understanding and appreciating the issue: The military draft was not a matter taken up at the national level in the United States until World War One. When President Abraham Lincoln saw to it for a draft to be enacted during the Civil War—which, let us remember, only affected the Union North because the South had seceded—riots broke out in New York and other Union states in response. Lincoln rationalized the power to conscript men into war much as he did with the printing of fiat paper money (greenbacks) and his suspension of habeas corpus: the Civil War required him to do it, and by necessity he had implied war powers to do those very things. As volatile as the conscription issue was (and—it should also be noted—the Confederacy was first to impose such a draft) during the Civil War, however, a coast to coast, continental United States draft was not implemented until the Great War in the early twentieth century.
President Woodrow Wilson encouraged Congress to enact a national draft as the United States ramped up for war in Europe, resulting in the Selective Service Act of 1917. Thus, it was not until a little over a century ago that the constitutionality of a national draft was broached. At the moment of the first world war, it was not yet a matter deliberated by the American judiciary.
The question of the national draft’s constitutionality was ultimately addressed by the United States Supreme Court in Arver v. United States in 1918, also known as the Selective Draft Law Cases. The Supreme Court ultimately ruled that the national military draft was constitutional. For many, that surface level assessment might be where the analysis ends. However, it should be noted that the substance of the arguments challenging the draft were overruled by a Court that in no way cited essential constitutional questions of liberty. In fact, regarding the challenge that the draft clearly violated the Thirteenth Amendment’s prohibition against involuntary servitude, the Court stated simply that:
“Finally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation, as the result of a war declared by the great representative body of the people, can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement.”1
Translation: the federal government can draft men to war against their will, regardless of the principles of the Thirteenth Amendment, because the government said so. To question this was inherently verboten. The people's representatives had spoken. There is some similarity here in how the draft was rationalized through a cloaking of democratic language to similar arguments of so-called popular sovereignty in the nineteenth century.
This was common legal logic during the Progressive Era, and one with significant problems (I cover this controversy further in my book, Rights Reign Supreme: An Intellectual History of Judicial Review and the Supreme Court).
The draft was upheld and not only used throughout the Great War, but also during World War Two, the Korean War, and the Vietnam War. Incredibly, even peacetime drafts became the norm prior to the second world war. In 1940, at the behest of President Franklin Roosevelt, men were drafted when there was no official war to wage. This practice persisted into the early baby boom era as—let it not be forgotten—Elvis Presley was drafted in 1960, at the height of his music career and cultural relevance. This was four years prior to the Gulf of Tonkin Resolution in August 1964, which essentially transformed the Vietnam conflict into the Vietnam War. It was after the Gulf of Tonkin Resolution that President Johnson significantly increased draft numbers for the next several years.
Thus, the Supreme Court upheld the conscription power of the United States government during the Great War and offered little to no constitutional reasoning for doing so. The need to draft men, particularly in war time, appeared self-evident. Within a couple decades, the precedent to implement a draft allowed the Franklin Roosevelt administration to operate peacetime drafts, which later administrations also exercised. When the United States claimed a need to escalate its involvement in Vietnam in the mid-1960s, the draft was amplified again.
In the late 1960s, the American Civil Liberties Union challenged the constitutionality of the draft, which was by then exceedingly unpopular. They did so not by asserting a living, breathing Constitution. No. Instead, they utilized originalist arguments and the intent of the American Founders to deny the constitutionality of American military conscription. As recounted in the Fordham Law Review in 1972:
“[In] the district court case of United States v. Zimmerman, the American Civil Liberties Union (ACLU) submitted a 174 page brief which purported to be the first complete analysis of the intentions of the framers of the Constitution with respect to conscription. As a result of this analysis, the conclusion was drawn that the framers never intended to give Congress the power to draft men into the national army. The ACLU thus directly challenged the landmark Supreme Court decision in The Selective Draft Law Cases, which the high court has reaffirmed as recently as 1968. According to the ACLU brief, ‘there is not a single part of the [Selective Draft Law Cases] decision which stands up to historical analysis.’”2
Of course, the judiciary did not side with the ACLU, and the draft persisted for a few more years. It was not brought to a halt by an originalist Court but by—of all people—President Richard Nixon, who saw the depletion of military morale and public support for the draft as, itself, a threat to national security. It is often lost to history that it was Nixon who ended the draft (though, let us be clear that the draft has been paused for several decades—but there is nothing keeping the federal government from someday re-implementing it). This is probably because Nixon, like Johnson before him, exploited the power to draft men into war during his presidency. Also like Johnson, he believed it necessary for the war effort. Both men had been born not long before the national draft became a reality, and both served for decades under a federal government with that authority. Few in their time, until their respective presidencies, had questioned it.
The last president (for now) to use the draft, then, was the same president who put it on pause. When wanting to find legal and ethical rationales for ending conscription, President Nixon found some of the best arguments from the libertarian-leaning conservative economist, Milton Friedman. Friedman, for years, had expressed views not dissimilar from that of the ACLU, that the draft was unconstitutional and a violation of individual liberty.
The active use of the draft ended the same year the Vietnam War officially came to an end: 1973. An all volunteer army became the priority of the United States over the next decade. By the 1980s, in Reagan’s America, a volunteer army suited the “Be All You Can Be” slogan and ethos that the United States then forwarded. Individual choice to serve suddenly fit a conservative administration that was keen to lean into the Cold War with an ardently anticommunist message that framed military service as a patriotic opportunity rather than compelled service to the state. In short order, an army made up of people who desired such participation was no less a conservative value than it had been a progressive value a decade or two earlier.
Of course, one need not agree with the end of the draft, or the ACLU’s (and Milton Friedman’s) constitutional arguments against it. Focusing on that part of the story would be to miss the point. It does not matter what one feels about the military draft, the legitimate powers of the state, the reasonable limits of those very powers, the Vietnam War, the ACLU, the Nixon Administration, or even originalism. The point is that an organization, whose mission was (until rather recently) to defend the rights of the socially and politically marginalized, employed American intellectual history and constitutional originalism to assert its position. It maintained that the power of government to exercise its will over sovereign human beings was not unlimited. Indeed, the designers of the American government and its Constitution never gave license to that government to exert such authority.
The ACLU and the constitutional originalism it utilized in its effort to end the military draft in the Vietnam War era should be a lesson to everyone, no matter one’s opinions related to any certain organization, politician, or policy. This case should act as a beacon of clarifying reason, reminding each of us that constitutional principles are not inherently left or right.
Principles, however—and this is a lesson for the ACLU itself—are only principles when they are routinely practiced and maintained. Let us hope that the day will come (sooner than later) that the defense of individual rights against undue government power is again seen as a quintessentially American value, rather than as a partisan policy position.
[James M. Masnov is a writer, historian, and lecturer. He has been a contributor at Past Tense, Pure Insights, New Discourses, the Brownstone Institute, Armstrong Journal of History, and the Oregon Encyclopedia. His newest book, Rights Reign Supreme: An Intellectual History of Judicial Review and the Supreme Court, is available here. His first book, History Killers and Other Essays by an Intellectual Historian, is available here.]
Arver v. United States, 245 U.S. 366 (1918)
Michael J. Malbin, “Conscription, the Constitution, and the Framers: An Historical Analysis,” 40 Fordham Law Review 805 (1972).