Trump Hasn’t Ruled Out A Draft for War with Iran—but Is Conscription Constitutional?

Ships burn in the Strait of Hormuz, oil prices climb above $100 a barrel and the Dow tumbles. Despite President Trump’s claims that the United States won the war with Iran on the first day, the country remains on edge, especially with FBI warnings of possible drone attacks on the West Coast and predictions by prominent members of the Senate Armed Services Committee such as Sen. Richard Blumenthal (D-Conn.) that “[w]e seem to be on a path toward deploying American troops on the ground in Iran to accomplish” the president’s objectives.

Fox News anchor Maria Bartiromo recently asked White House press secretary Karoline Leavitt whether American mothers should be concerned about the federal government conscripting sons and daughters into the military to support a ground war. Leavitt responded that no option had been ruled out.

That answer should prompt Americans to ask two questions: (1) Is a draft constitutionally permissible? And (2) even if it is, is a draft sound public policy?

Congress has the power to “raise and support armies” and may use any means “necessary and proper” to exercise a delegated power. Strict constructionists such as Thomas Jefferson defined necessity as encompassing only those means “without which the grant of power would be nugatory.” Loose constructionists such as Alexander Hamilton defined necessity as any means convenient to the exercise of a power.

Until the Civil War, the United States did not have a national military draft. The armed forces of the North and South initially depended on volunteers, often induced by systems of paying bounties to enlistees. In the “Selective Draft Law Cases” (1918), the Supreme Court held that “[i]t may not be doubted that the very conception of a just government and its duty to the citizen includes the reciprocal obligation of the citizen to render military service in case of need, and the right to compel it.”

Many prominent American statesmen, however, denied that the federal government possessed the power to conscript citizens. When a draft was considered during the War of 1812, Daniel Webster of Massachusetts was a vigorous opponent. “Where is it written in the Constitution,” thundered Webster, “in what article or section is it contained that you may take children from their parents and parents from their children and compel them to fight the battles of any war which the folly or the wickedness of government may engage in?” Because of such opposition, the proposed conscription bill failed.

So the answer to the first question is maybe. The Supreme Court has blessed the draft, but it also blessed racial segregation from the 1890s to the 1950s. Webster’s strict construction of Congress’s power to raise armies invokes a strong presumption of individual liberty. Just because one constitutional interpretation has prevailed in the past does not mean it must bind us in the future.

The second question—whether a draft is wise public policy—yields a clearer answer.

The U.S. armed forces consist of approximately 1.3 million service members. All are volunteers; a draft has not been in place since the early 1970s, when the Vietnam War was still underway and widespread protests prompted President Nixon to end it. Neither the Iraq War nor the War on Terror, both of which saw boots on the ground in foreign lands, required conscription. The government had enough troops to wage extensive campaigns and maintain large military presences in places such as South Korea and Germany.

Sen. Rand Paul (R-Ky.) has on multiple occasions introduced bipartisan legislation to abolish the Selective Service System, which is the precursor to the draft. “It has been nearly 50 years since the draft was last used,” Paul observed. “I’ve long stated that if a war is worth fighting, Congress will vote to declare it and people will volunteer. This outdated government program no longer serves a purpose and should be eliminated permanently.”

Thus, the answer to the second question comes down strongly against the draft. The most effective way to limit foreign adventures is to rely on a volunteer military, one whose size the public can ultimately constrain by refusing to enlist.

The administration’s refusal to rule out conscription, combined with the escalation of the conflict, should prompt Americans to revisit both the constitutional and policy questions surrounding the draft. The Middle East remains volatile, and Trump’s campaign could yet widen into a conflict requiring significant resources and manpower.