Cox v. Wood

Background

The appellant was drafted under the Selective Draft Law of May 18, 1917, and in December 1917 was serving at Camp Funston, Kansas. On December 3, 1917, he petitioned for a writ of habeas corpus asking the camp commander to discharge him. He argued that Congress’s power to call the militia in Article I, §8 was limited to domestic duties—executing the laws, suppressing insurrections, and repelling invasions—and therefore could not compel military duty in a foreign country. The district court considered a motion to dismiss and, on January 4, 1918, dismissed the petition. The appellant appealed to this Court. Several cases challenging the draft law were argued here on December 13–14, 1917, and the Court decided the Selective Draft Law Cases on January 7, 1918.

Reasoning

The Court said the appellant’s argument rested on treating the militia clause as exclusive. But the Court relied on the recent Selective Draft Law Cases, which held Congress’s power to compel military service comes from its power to declare war and to raise armies. That power is not limited or qualified by the militia clause, and therefore Congress may call citizens to military service as part of its war and army powers. Applying those principles, the Court affirmed the dismissal of the habeas petition. The Government had also asked to strike portions of the appellant’s brief for intemperate language. The Court criticized those passages but declined to strike the brief.

Real world impact

This ruling confirms that Congress may require citizens to serve in the military under its war and army powers, including service beyond U.S. territory. For individuals called by the draft, challenges based solely on the militia clause will not block overseas service. Because the decision rests on the Court’s earlier ruling in the Selective Draft Law Cases, it follows that the broader constitutional question was resolved by that prior decision.