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The right of conscientious objection to military service is the most startling of human rights. While human rights generally seek to protect individuals from state power, the right of conscientious objection radically alters the citizen-state relationship, subordinating a state's decisions about national security to the beliefs of the individual citizen. In a world of nation-states jealous of their sovereignty, how did the human right of conscientious objection become an international legal doctrine? By answering that question, this Article both clarifies the legal pedigree of the human right of conscientious objection and sheds new light on the relationship between international human rights law and national sovereignty.

Between 1953 and 1960, the United States' overall military and intelligence-gathering capacities grew enormously, driven by President Eisenhower's "New Look" approach to fighting the Cold War. But the distribution of powers within this New Look national-security state, the shape of its institutional structures, and its sources of legitimacy remained up for grabs. The eventual settlement of these issues would depend on administrative constitutionalism – the process by which the administrative state both shapes and is shaped by constitutional norms, often through ostensibly non-constitutional law and policymaking. Constitutional concerns about civil liberties, administrative procedure, and the separation of powers ran highest in those branches of the national security state responsible for regulating civilian and military manpower, such as the Loyalty-Security Program, an inter-agency effort to root out ideologically deviant federal employees, and the Selective Service System, the civilian agency created in 1940 to register, classify, and select millions of young men for compulsory military service. This Article focuses on the Selective Service System, which has received far less attention from legal scholars despite the fact that it exercised authority over a far larger (and arguably more vulnerable) population than did the Loyalty-Security Program. Administrative constitutionalism inflected every stage of the New Look draft's development: from the size and composition of draft calls; to the arguments that draft administrators made when lobbying their congressional patrons; to the competing interpretations of the Selective Service System's organic statute and regulations offered by Justice Department and Selective Service lawyers; to judicial review of these interpretations; to how executive branch lawyers responded to – and sometimes tried to preempt – judicial criticism by modifying the substance and procedure of draft decisionmaking. By reconstructing the anxious, constitutional dialogue that shaped the administration of military manpower under President Eisenhower's New Look, this Article explores the role that administrative constitutionalism played in the development of the American national-security state, a state that became both more powerful and more legalistic during the pivotal years of the Cold War. The Article also questions the frequent identification of administrative constitutionalism with the relative autonomy and opacity of the federal bureaucracy. The back-and-forth of administrative constitutionalism continually recalibrated the degree of autonomy and opacity that characterized the draft apparatus. This evidence suggests that bureaucratic autonomy and opacity may be more usefully understood as products, rather than preconditions, of administrative constitutionalism.

By reconstructing the anxious, constitutional dialogue that shaped the administration of military manpower under President Eisenhower's New Look, this Article explores the role that administrative constitutionalism played in the development of the American national-security state, a state that became both more powerful and more legalistic during the pivotal years of the Cold War. The Article also questions the frequent identification of administrative constitutionalism with the relative autonomy and opacity of the federal bureaucracy. The back-and-forth of administrative constitutionalism continually recalibrated the degree of autonomy and opacity that characterized the draft apparatus. This evidence suggests that bureaucratic autonomy and opacity may be more usefully understood as products, rather than preconditions, of administrative constitutionalism.

Since the early 1990s, constitutional history has experienced a renaissance. This revival had many causes, but three stand out: the Rehnquist Court's attack on formerly sacrosanct features of the "New Deal agenda"; Reagan-Era reassessments of American political development by political scientists, historians, and historical sociologists; and the frustration of constitutional scholars with the inability of legal process theory or political philosophy to produce "authoritative constitutional principles." Spurred by legal crisis and this mix of disciplinary innovation and stagnation, law professors began to tell new stories about our constitutional heritage. They focused on the sources and significance of the New Deal's "constitutional revolution," while also re-examining the constitutionalism of the Founding and Reconstruction in light of New Deal transformations. Given the centrality of the New Deal to this project, constitutional historians seemed to be heading toward a fundamental reconsideration of the relationship between constitutional law and political economy. That is, after all, what New Deal constitutional conflict was all about: the extent to which the Constitution allowed a national political movement to alter the country's economic life in fundamental and lasting ways. And yet, the new generation of constitutional historians generally avoided political economy as such. To be sure, their histories carefully reconstructed early twentieth-century debates about the constitutional authority of the state and federal governments to displace common law economic regulation. But the focus remained on the purely legal logics and purely political events that led the federal judiciary to get out of the business of adjudicating the constitutional merits of various schemes of economic regulation. The economic reasons that political and judicial actors might have had for transforming constitutional democracy received little attention. This exclusion of economic reason from constitutional analysis is symptomatic of what Professors Joseph Fishkin and William Forbath call the "Great Forgetting." From the Founding through the New Deal, Fishkin and Forbath demonstrate, the discourse of "constitutional political economy" was a fundamental feature of American constitutionalism. It was only in the wake of the epochal New Deal synthesis – judicial deference to political regulation of the economy and judicial guardianship of civil liberty and equality – that constitutional political economy became something of a dead language. Prior to that time, constitutional actors across the ideological spectrum spoke in terms of constitutional political economy, believing that "economics and politics [we]re inextricably linked, and [that] a republican constitution require[d] a republican political economy to sustain it, and vice versa." By recovering this language, Fishkin and Forbath's book-in-progress, The Anti-Oligarchy Constitution, offers a radical alternative to the constitutional histories that emerged in the 1990s to defend the New Deal synthesis. Fishkin and Forbath's new constitutional history promises to recast the New Deal as a contingent and incomplete resolution of a centuries-long struggle to achieve the political-economic conditions that the Constitution requires – "requires" in the double sense of "demands" and "depends upon." This struggle is still ongoing and even accelerating, Fishkin and Forbath report, yet it has become increasingly "one-sided." First, the post-WWII economic boom dissipated, taking with it much of the middle class that the New Deal and Great Society legal orders had hoped to create. Then, conservative lawyers and politicians stepped up their attacks on the New Deal and Great Society's remaining achievements, trumpeting a constitutional political economy in which private property free of overweening public management is the pillar of constitutional democracy. Confronted by these dire conditions, legal liberals have forgotten how to fight back, rendered mute by the New Deal synthesis itself, which ironically and erroneously implied that political economy was no longer a matter of constitutional concern. Hoping to even the odds, Fishkin and Forbath offer liberals a grammar of egalitarian constitutional political economy – "the constitution of opportunity" – that was once spoken fluently and effectively by those Americans who argued that the Constitution prohibited oligarchic concentrations of wealth and mandated the political and judicial construction of a broad, inclusive middle class.

It is telling that the winners of [Daniel] Ernst's history are not the hardened legal realists whom we generally think of as building, and justifying, the New Deal state. Rather, Ernst turns the spotlight on reform-minded corporate lawyers, such as Charles Evans Hughes and John Lord O'Brian, who stepped back from the edge of realism. While accepting the necessity of the administrative state for managing a modern economy, they fought to imbue that state with a legalistic conception of "fair play" and a distinctively lawyerly form of expertise. These political and intellectual moderates would have agreed with Sunstein and Vermeule when they write that "[a] dose of legal realism … has its place, but … respect for the governing rules is not optional." Just as for Sunstein and Vermeule, the APA evacuated administrative law of "any kind of ideological valence," for Ernst, the "rule of lawyers" insulated the administrative state from becoming a weapon in the hands of any particular social or economic group. It apparently goes without saying – neither Ernst nor his protagonists say it – that the impartiality of the "rule of lawyers" admits one important exception. Under a "rule of lawyers," the administrative state will persistently favor one socioeconomic bloc: lawyers and the interests they serve. From this perspective, Tocqueville's Nightmare can be read as a narrative of regulatory capture: the capture of the administrative state by lawyers themselves. But while regulatory capture is generally understood as a threat to administrative legitimacy, Ernst suggests that lawyerly capture is its condition precedent. If he is right, important new questions come to the fore: how did lawyers win the struggle to equate administrative legitimacy with their control of the administrative state, and what exactly did they win by defining administrative legitimacy in this way? Ernst's ingenious history not only forces us to ask these questions, but also helps us answer them.