Attorney Steve Kennedy argues the Supreme Court’s “history and tradition” test from the Dobbs decision that overturned Roe v. Wade could be applied to challenge the constitutionality of the military draft.
On Wednesday, Kennedy reported for Slate how President Donald Trump’s administration automated draft registration for men aged 18 to 26 under the National Defense Authorization Act, potentially creating an opportunity for legal challenge.
Under the Dobbs framework, government powers must be grounded in founding-era practice. Kennedy points out the founding era had no national draft, only local militias for community defense.
While current Supreme Court precedent supports the draft’s constitutionality, Kennedy argues the Roberts court has given less weight to precedent than previous courts. He references historical opposition to conscription, including from Representative Daniel Webster during the War of 1812, suggesting automatic registration could inspire a constitutional challenge.
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