It is common knowledge that free speech has legal limits in the public square. What may be less well known is that the famous Supreme Court ruling — refusing protection for “falsely shouting fire in a theater” — dealt with opposition to World War I and the military draft.
The case centered on Charles Schenck and Dr. Elizabeth Baer, Philadelphia socialists, who distributed 15,000 copies of a leaflet titled “Long Live the Constitution of the United States,” arguing that conscription was illegal. Coming three months after President Woodrow Wilson signed a bill creating a military draft, the leaflet said conscription was a clear violation of the 13th Amendment banning involuntary servitude: “When you conscript a man and compel him to go abroad and fight against his will, you violate the most sacred form of personal liberty.”
Justice Oliver Wendell Holmes disagreed. From his vantage point, discouraging the war effort constituted “a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
Wilson’s conscription act created the Selective Service, enabled the president to draft members of the National Guard into the U.S. Army, established local civilian draft boards and created a limited right to conscientious objection. It called for drafting 500,000 men and banned voluntary enlistment in order to give the government authority to “channel” men into the positions where they would best serve the war effort. Violations of the law, including failing to register or encouraging others to do so could be punished by a year in prison.
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‘I Ain’t Marching Anymore’ chronicles 260 years of war resistance and conscientious objectionThe conscription law was soon followed by the Espionage Act and the Sedition Act. Together, this package of laws made it a crime to resist the draft, encourage others to do so, publish antiwar articles, give antiwar speeches, or send anything smacking of antiwar sentiment through the U.S. mail. Violations could be punished by up to 20 years in prison.
Schenck and Baer were sentenced to prison for six months. Jason Frohwerk and Eugene Debs were less fortunate. Frohwerk, an editor at a German language newspaper in Missouri, was charged with 13 counts of violating the Espionage Act for writing articles critical of the war and expressing sympathy for young men who resisted the draft. That was too much for the authorities; he was sentenced to 12 terms of 10 years each, to be served concurrently.
Debs gave a two-hour speech in Canton, Ohio in 1918 after visiting three socialists who had been imprisoned for antiwar activities. Although most of the speech was about socialism, Debs was not shy about his views of war. “The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and all to lose — especially their lives,” he said. “They have always taught and trained you to believe it to be your patriotic duty to go to war and to have yourselves slaughtered at their command.”
The socialist leader went on to note that “I must be exceedingly careful, as to what I say” because “there are certain limitations placed on the right to free speech.” While the statement was met with applause and laughter, it was more prophetic than ironic. The U.S. Attorney for northern Ohio had stenographers in the crowd taking down every word. Debs was charged, tried and convicted of violating the Espionage Act — for which he was sentenced to 10 years.
As he had done in the Schenck/Baer case, Justice Holmes wrote the Supreme Court opinions upholding the convictions of Frohwerk and Debs.
Schenck, Baer, Frohwerk and Debs were far from alone, as Jerry Elmer points out in his comprehensive new book, “Conscription, Conscientious Objection, and Draft Resistance in American History.” As he writes, “During World War I, there were more than 1,900 criminal prosecutions involving antiwar or anti-draft speeches, newspaper or magazine articles, leaflets and flyers, pamphlets and books. In the two-year period between June 30, 1917 and June 30, 1919, 877 people were convicted.”
Especially persecuted were conscientious objectors, or COs. While the conscription law allowed members of some traditional peace churches to avoid military service, others with antiwar beliefs were excluded. Among them were four Hutterites, who were sentenced to 20 years and sent to solitary confinement at Alcatraz, where they were beaten, denied food and, “for eight or nine hours a day, the men were chained to the bars by their hands and arms, with the chains drawn up so that the men’s feet barely touched the floor.” Instead of being released when the war ended, they were sent to Fort Leavenworth, where they were “shackled to the bars of their cells for nine hours each day, strung up so that their toes barely touched the floor.”
The National Civil Liberties Bureau, forerunner to the ACLU, published a pamphlet calling the COs political prisoners and saying, “The use of torture in military prisons … is as unnecessary as it is barbarous.”
Elmer writes that 500 COs were court martialed, 142 given life sentences and 17 sentenced to death, though in the end none of them were executed. “Asserting that the U.S. government was using torture on nonviolent COs in military prisons was then — and is now — a shocking allegation,” Elmer writes. “Yet the treatment to which COs were deliberately subjected for long periods comports with the ordinary, everyday meaning of the word torture, with the dictionary definition of the word, and with the definition of torture under international law.”
Not all the protesters and refusers were pacifists. In western North Carolina, where the Confederate draft had aroused a similar sentiment, residents of two communities organized an armed resistance movement. In Oklahoma’s Green Corn Rebellion, 500 Black and white farmers armed themselves and began marching to Washington. “The armed draft resisters did not get far,” Elmer writes, “but it took dozens of posses comprising 1,000 men in all, drawn from seven counties, a full week to put down the rebellion.”
It was not the only example of help the federal authorities welcomed to enforce conscription. Selective Service also had the assistance of a secretive, semi-official vigilante group, the American Protective League, or APL, which mustered thousands of volunteers who conducted warrantless searches to apprehend “slackers.” Elmer describes a massive raid in metro New York:
“A force of 20,000 to 25,000 men participated: the Bureau of Investigation, U.S. marshals, local police forces and the APL. They stopped hundreds of thousands of men in all manner of public places. Every major commercial and residential block of the city was covered. By the second day of the raid, 10,000 to 12,000 men had been detained in Manhattan; 8,000 to 10,000 in Brooklyn and Queens; 2,200 in the Bronx; and 12,000 in northern New Jersey — in all, more than 40,000 men in custody, all without warrants, all without probable cause, all in violation of the Fourth Amendment. Yet, despite the enormous dragnet, relatively few actual slackers were caught.”
Jerry Elmer is the right writer to tell the story. At the age of 18 during the U.S. war in Vietnam, he publicly refused to register for the draft and joined 14 draft board raids in three cities. After serving with the American Friends Service Committee in Rhode Island, he went to Harvard Law School, where he says he was the only felon in his graduating class. Elmer says that while other historians have written about particular wars, this is the first book to take a look at conscription laws, anti-draft activities and relevant court decisions across the sweep of U.S. history.
The book has details upon details. Elmer not only describes the conscription laws of each period and the ways in which COs and resisters were treated, he provides lawyerly analyses of the Supreme Court challenges in each era.
At the same time, he dives into the statistics, often correcting other scholars who underestimated the extent of draft evasion and resistance. Conscription for the Civil War was so unpopular, Elmer shows, that Union “enrollment officers” who were supposed to find draftees were frequently murdered and themselves had to be protected by soldiers. In some states, fewer than half of the eligible men enrolled. Many others who were drafted never reported to duty. Combining the figures, state by state, for what he says is the first time, Elmer concludes, “The figures are staggering. The percentage of men in the Union who refused the draft (by either not enrolling or by evading induction) was more than 50 percent.” In addition, “Civil War conscription led to the worst outbreak of urban rioting in the history of the United States up to that time, a record that remains unbroken today.”
Conscription in the South was no more successful and in fact, spurred large and popular groups of armed refusers throughout the Confederacy. The law enabled men to hire substitutes in order to evade service, but apparently 99 percent of the substitutes deserted.
During World War II, tens of thousands of men refused military service, either by outright resistance to Selective Service or via the more highly developed system for assigning COs to non-combatant roles within the military or alternative service as civilians. Recalling the terrible mistreatment of COs during World War I, religious pacifists went to great lengths in collaboration with Selective Service to create regulations for COs to be classified as such and to find positions supposedly serving the national interest. Elmer plunges into the details of the Civilian Public Service, or CPS, which he ultimately deems to have been a moral compromise.
Again, we get numbers: There were 151 CPS camps holding 12,000 men, mostly Mennonites, Brethren and Quakers, but also 845 Methodists, 243 Baptists, 235 Presbyterians, 162 Catholics, 124 Lutherans and 60 Jews. But there were others who worked on dairy farms and 2,200 who worked in psychiatric hospitals, where they agitated successfully for improved conditions.
More than 6,000 men were imprisoned for noncompliance, 271 of whom had done so publicly. In federal prison, the public resisters “organized hunger strikes, work stoppages, and other protests against a variety of injustices, including racial segregation, censorship of incoming and outgoing mail, restrictions on publications the prisoners could receive, parole restrictions and other matters.” When Bayard Rustin was sent to solitary in Ashland Federal Prison in Kentucky for refusing to eat in a segregated dining hall, he was set free “when the jail’s choir, which he had organized, spontaneously refused to sing at Sunday services unless Rustin was released.”
As the Cold War intensified after World War II and President Harry Truman continued the draft, a national day of protest called Break with Conscription featured more than 1,000 men who burned their draft cards in 37 states. Elmer points out that this action was missed by later writers who called the 1964 draft card burnings the first-ever. “Break With Conscription is little known today, but it was probably the largest coordinated example of public nonviolent civil disobedience in the United States up to that time,” Elmer writes.
Between 1948 and 1953, according to Elmer, hundreds of men resisted and faced prosecution, while more were charged with aiding and abetting noncompliance. Thousands more who resisted privately were referred to the Justice Department for prosecution. According to Elmer, “Part of what makes these figures remarkable is that in nearly every case referral to the Justice Department came only after both the Selective Service and the FBI had been unsuccessful in cajoling a man to cooperate.”
What’s more, scores of grassroots organizations opposing the peacetime draft popped up across the country, coordinated by the National Council Against Conscription. “No other organization,” Elmer writes, “had so extensive a grassroots network or produced such frequent and detailed materials for local groups.”
While the National Service Board for Religious Objectors aided COs, and the newly formed Central Committee for Conscientious Objectors aided resisters and provided draft counseling, A. Philip Randolph organized the Committee Against Jimcrow [sic] in Military Service and Training, which pledged to orchestrate mass civil disobedience if the Truman administration didn’t desegregate the armed forces. They met measured success, but World War II resisters, such as Bayard Rustin and Bill Sutherland, who were involved, laid important groundwork for later civil rights activism.
“While the 1950s are often characterized as a period of complacent conformity and conservatism,” Elmer concludes, “that was certainly not an accurate reflection of the public attitude toward conscription during this period.”
Of course, in the following decades, during Vietnam, much has been written. But even here, Elmer names and counts draft board raids that other historians neglected to count. The combined impact of evasion by semi-legal means, outright and open resistance, potential draftees who fell through bureaucratic cracks, and 150,000 COs all contributed to the Selective Service’s failure to meet its quotas.
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Activists fought the US military draft for decades — they may soon have to againPerhaps that is why the government ended the draft in 1973 and suspended registration two years later, but strangely, Elmer neglects that part of the story. Nor does he describe the resumption of registration in 1980, recent debates over whether women should be subject to the draft, or repeated efforts in Congress to abolish the Selective Service. That is unfortunate, because young men are still required to register when they turn 18 and face serious sanctions for failing to do so. Selective Service maintains a roster of local draft boards and has mechanisms in place to classify registrants should the draft resume.
I also wished at times for a bit more context, for example whether there were direct lines between the anti-imperialist movement of the late 19th century and antiwar sentiments in the lead-up to World War I. But Elmer clearly states that was not what he set out to describe. As he explains, “This is not a military history, and it does not address or discuss wars, battles or military strategy. Nor is this a history of the peace movement in the United States, many of which have been written.” What it promises and fulfills is just what the title implies.
Elmer’s documentation is extensive, with ample footnotes and a “select bibliography” including 204 books, journals, and pamphlets plus 159 legal cases. However, with a price tag of $136, the publisher is obviously not aiming at a general audience. That’s unfortunate, but it’s worth asking your local (or perhaps a nearby academic) library to order a copy. And if you want a taste, the first chapter can be downloaded free of charge from the publisher’s website.
Even with all the details, it’s a remarkably good read — a reflection of Elmer’s activist and legal experience, as well as his talent as a researcher and writer. It concludes as it began, stating, “The depths of American hostility to conscription — starting before the Civil War and continuing through the Vietnam era — have been significantly underrecognized and underappreciated.” Elmer has more than succeeded at providing a remedy.
As a 32 year veteran of the all volunteer force I agree the war machine can’t fight endless wars with conscripts. Thus the solution was to create a volunteer roman legion in 1973 who had no issues deploying around the world to enforce imperialism.
Endless wars (rumors of war which is where the big money lies) can be conducted by volunteers and funded by debt thus the American population has no shared hardship or skin in the game.
As Major General Smedley Butler wrote “war is a racket”.
Thus the only way to peace is with a unwilling conscripted force.
Beware of the military industrial complex.