Document Type
Article
Publication Date
3-2026
Abstract
The legal history of the U.S. military draft is a case study in creative statutory interpretation. Throughout the twentieth century, this interpretive creativity tended both to expand draft registrants’ substantive and procedural rights, and to recalibrate the roles played by Congress, the courts, and various executive branch factions in the governance of tens of millions of young men. Today’s Military Selective Service Act (“MSSA”) reads much like the law that governed the land when the country last went to war with conscripts during the 1950s and 1960s. But between U.S. entry into the Korean War and its withdrawal from Vietnam, federal judges, draft administrators, and the Department of Justice (“DOJ”) lawyers radically transformed the meaning of the statutory text. Most of those changes have never been codified even though the mid-century legal elite viewed them as essential to the legality and legitimacy of conscription. Professor Aceves’s urgent and insightful article focuses on one of the best known examples of creative statutory interpretation: the provision of conscientious objector accommodations to secular draft registrants. But in the event of a future, draft-driven war, the fate of secular conscientious objectors — as well as that of all other draft registrants who contest their classification or induction — will likely turn on an even more significant departure from the statutory text.
Disciplines
Administrative Law | Constitutional Law | Law
Recommended Citation
Jeremy K. Kessler,
Selective Service and the Separation of Powers,
106
B.U. L. Rev.
595
(2026).
Available at:
https://scholarship.law.columbia.edu/faculty_scholarship/4837