# Is the draft forbidden by the 13th Amendment? **URL:** \ **Category:** Cecil's Columns/Staff Reports\ **Created:** [July 27, 2009, 3:30pm UTC](https://boards.straightdope.com/t/is-the-draft-forbidden-by-the-13th-amendment/504432 "2009-07-27T15:30:47Z")\ **Posts on this page:** 16\ **Page:** 1
**Author:** ![dougf](https://avatars.discourse-cdn.com/v4/letter/d/a6a055/32.png) [@dougf](https://boards.straightdope.com/u/dougf)\ **Post date:** [July 27, 2009, 3:30pm UTC](https://boards.straightdope.com/t/is-the-draft-forbidden-by-the-13th-amendment/504432/1 "2009-07-27T15:30:47Z")
A slight correction on clause 15 of Article I, Section 8, of the Constitution. The article permits Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”, not for Congress itself to call out the Militia, itself. This power allows Congress to define when existing state militias (whose current incarnations are the state National Guards) can be called out by the executive for these three purposes. It has nothing to do with conscription or compusory service. Arguably, clause 12, which authorizes Congress to “raise and support armies” does not restrict its methods of raising such armies, permitting conscription. However, the 13th Amendment was added to the Constitution long after Article I was passed. It therefore modified previous parts of the Constitution that otherwise would have permitted what now became violations. As you have said, courts have refrained from ruling on the Constitutionality of military conscription. This is probably because involontary conscription is _prima face_ involontary servitutde, so they don’t want to touch it. As for the argument that the intent of the 13th Amendment was to abolish slavery the text says “[n]either slavery \nor\ involuntary servitude … shall exist”, which means that the second term covers more situations than the first. The Supreme Court interpreted the equal protection clause of the 14th Amendment to apply to corporations – which was beyond the intent of the framers of that Amendment – by relying on the text of the amendment (and by considering corporations to be “persons”) . A similar reading of the text of a contemporaneous amenendment (and similarly not being restricted to intent) seems to require all involuntary service “except as a punishment for crime” to be banned. If intent" were necessary for the 13th Amendment, it would also be for the 14th, and corporations would loose all their “rights”; the Supremes wouldn’t want to go there. ---
**Author:** ![bibliophage](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bibliophage/32/7615_2.png) [@bibliophage](https://boards.straightdope.com/u/bibliophage)\ **Post date:** [July 27, 2009, 8:52pm UTC](https://boards.straightdope.com/t/is-the-draft-forbidden-by-the-13th-amendment/504432/2 "2009-07-27T20:52:16Z")
A link to the column you’re commenting on is appreciated. Providing one can be as simple as pasting the URL into your post, being sure to leave a blank space on either side of it. Like so: [Is the draft forbidden by the 13th Amendment? - The Straight Dope](http://www.straightdope.com/columns/read/129/is-the-draft-forbidden-by-the-13th-amendment) bibliophage moderator CCC ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 1, 2009, 3:00pm UTC](https://boards.straightdope.com/t/is-the-draft-forbidden-by-the-13th-amendment/504432/3 "2009-08-01T15:00:04Z")
> [@dougf](#): > > Arguably, clause 12, which authorizes Congress to “raise and support armies” does not restrict its methods of raising such armies, permitting conscription. However, the 13th Amendment was added to the Constitution long after Article I was passed. It therefore modified previous parts of the Constitution that otherwise would have permitted what now became violations. > > As you have said, courts have refrained from ruling on the Constitutionality of military conscription. This is probably because involontary conscription is _prima face_ involontary servitutde, so they don’t want to touch it. Two points. First, it is not just “arguable” that clause 12 permits Congress to institute a draft. The Supreme Court unanimously held in the draft cases ([Arver v. U.S., 245 U.S. 366 (1918)](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=245&invol=366)) that [Article I, §8, clause 12](http://en.wikipedia.org/wiki/Article_One_of_the_United_States_Constitution#Section_8:_Powers_of_Congress) authorises Congress to create a draft. [QUOTE=Chief Justice White, at p. 377] The possession of authority to enact the statute must be found in the clauses of the Constitution giving Congress power ‘to declare war; … to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; … to make rules for the government and regulation of the land and naval forces.’ Article 1, 8. And of course the powers conferred by these provisions like all other powers given carry with them as pro ided by the Constitution the authority ‘to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.’ Article 1, 8. As the mind cannot conceive an army without the men to compose it, on the face of the Constitution the objection that it does not give power to provide for such men would seem to be too frivolous for further notice. [/QUOTE] The Chief Justice then goes through a lengthy historical review in support of his conclusion that the Congress is authorized to provide for a draft. Second, it’s not correct that the courts have never addressed the constitutionality of the draft under the 13th Amendment. The Court also consdiered and rejected that argument in _Arver_: [QUOTE=Chief Justice White, at p. 389] Finally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation as the result of a war declared by the great representative body of the people can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement. [/QUOTE] Admittedly, this case doesn’t relate directly to the question posed to Cecil, about a peacetime draft or a draft during an undeclared war (see Douglas J.'s dissent to the denial of certiorari in [Holmes v. United States,391 U.S. 936 (1968)](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=391&invol=936) for a discussion of that point), but it certainly establishes the constitutionality of a draft for a declared war. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [August 1, 2009, 4:04pm UTC](https://boards.straightdope.com/t/is-the-draft-forbidden-by-the-13th-amendment/504432/4 "2009-08-01T16:04:59Z")
Half my post eaten by hamsters-forget it. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 1, 2009, 4:12pm UTC](https://boards.straightdope.com/t/is-the-draft-forbidden-by-the-13th-amendment/504432/5 "2009-08-01T16:12:50Z")
[QUOTE=SDMB Hamster] mmmm, post [/QUOTE] .. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [August 1, 2009, 7:33pm UTC](https://boards.straightdope.com/t/is-the-draft-forbidden-by-the-13th-amendment/504432/6 "2009-08-01T19:33:52Z")
> [@dougf](#): > > A slight correction on clause 15 of Article I, Section 8, of the Constitution. The article permits Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”, not for Congress itself to call out the Militia, itself. > > This power allows Congress to define when existing state militias (whose current incarnations are the state National Guards) can be called out by the executive for these three purposes. It has nothing to do with conscription or compusory service. Then the question I would raise is where is the Constitutionality of sending the National Guard oversea since clearly it is not executing the law (e.g. integration in the South during the 60’s), suppressing insurrection or repelling invasion. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [August 1, 2009, 10:31pm UTC](https://boards.straightdope.com/t/is-the-draft-forbidden-by-the-13th-amendment/504432/7 "2009-08-01T22:31:52Z")
> [@dougf](#): > > This power allows Congress to define when existing state militias (whose current incarnations are the state National Guards) can be called out by the executive for these three purposes. It has nothing to do with conscription or compusory service. This touches upon the whole meaning of the term “militia”, which I have raised in several gun-related threads. When talking about a draft, the militia has been held to mean every able-bodied man, i.e., the general public. But when the topic is the Second Amendment, suddenly “a well-regulated militia” is held to mean a state-organized regimented military body like today’s National Guard. **dougf** ’s take quoted above is the logical conclusion of the “collectivist” interpretation of the right to keep and bear arms: Congress only has the authority to federalize such military forces as the states happen to have on hand, not to conscript raw untrained civilians into the Army. You can’t have it both ways; the Constitution presumes a linkage between the right to be armed and the duty to join in the common defense when called. To hold otherwise reduces the Second Amendment to a travesty: “you have the right to be drafted and have the Army issue you a service arm”. It’s worth pointing out that Article One Section Ten of the Constitution details the sovereign powers that the state governments ceded to the federal Congress, the third clause of which states in part: ““No State shall, without the Consent of Congress, lay any duty of Tonnage, **keep Troops** , or Ships of War in time of Peace,…”. So what exactly is the difference between a “militia” and “troops”? IMHO, the only logically consistant interpretation is that the militia is simply the people, the mass of the populace. The states were forbidden to have their own independent professional state armies, but were guaranteed the right to have armed citizens who could be summoned to the common defense. (Many states today do have State Defense Forces, but only by “the Consent of Congress”; they’re exactly what could be banned by A1S10C3.) ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [August 2, 2009, 2:17am UTC](https://boards.straightdope.com/t/is-the-draft-forbidden-by-the-13th-amendment/504432/8 "2009-08-02T02:17:59Z")
> [@Northern\_Piper](#): > > Two points. > > First, it is not just “arguable” that clause 12 permits Congress to institute a draft. The Supreme Court unanimously held in the draft cases ([Arver v. U.S., 245 U.S. 366 (1918)](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=245&invol=366)) that [Article I, §8, clause 12](http://en.wikipedia.org/wiki/Article_One_of_the_United_States_Constitution#Section_8:_Powers_of_Congress) authorises Congress to create a draft. If one considers the matter logically, then White’s reasoning leads to the conclusion that the Constitutionally enumerated power of Congress to grant temporary monopolies contains the power to conscript patent examiners. I think we’ll just have to chalk this up as (to paraphrase [the Master](http://www.straightdope.com/columns/read/1115/is-u-s-income-tax-invalid-because-ohio-wasnt-legally-a-state-when-the-16th-amendment-was-ratified)) just sort of sputtering that they consider the argument stupid and don’t want to deal with it. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 2, 2009, 3:07am UTC](https://boards.straightdope.com/t/is-the-draft-forbidden-by-the-13th-amendment/504432/9 "2009-08-02T03:07:35Z")
Not really. If you read his full judgment, after the part I’ve quoted he goes through a lengthy historical account of how countries have always assumed the power to compel military service, as a condition of citizenship. The existence of the state provides security for all its citizens, so when the state is in jeopardy it’s got a right to call on all its citizens for defence. Whether you agree with that or not, it’s a logical argument. Since there’s no equivalent history of patent examiners being called upon to save the state (“My god, man, the Republic will falter if Patent 1004-459-073a isn’t approved in time! you’ve got to work tonight, wedding or no wedding!”), the fact that patents are an enumerated area of federal jurisdiction doesn’t carry the same contextual background. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 2, 2009, 3:24am UTC](https://boards.straightdope.com/t/is-the-draft-forbidden-by-the-13th-amendment/504432/10 "2009-08-02T03:24:24Z")
> [@Lumpy](#): > > **dougf** ’s take quoted above is the logical conclusion of the “collectivist” interpretation of the right to keep and bear arms: Congress only has the authority to federalize such military forces as the states happen to have on hand, not to conscript raw untrained civilians into the Army. You can’t have it both ways; the Constitution presumes a linkage between the right to be armed and the duty to join in the common defense when called. I’m not sure I understand your point, but if I do, I don’t think I agree with it. The power to call up the state militias, and the power to maintain federal forces, are two separate powers under Article I. The power to maintainn federal forces is set out in Article I, s. 8, cl. 12, while the power to call out the state forces is set out in Article I, s. 8, cl. 15. Chief Justice White rebutted a similar argument in the draft cases: > [@](#): > > To argue that as the state authority over the militia prior to the Constitution embraced every citizen, the right of Congress to raise an army should not be considered as granting authority to compel the citizen’s service in the army, is but to express in a different form the denial of the right to call any citizen to the army. Nor is this met by saying that it does not exclude the right of Congress to organize an army by voluntary enlistments, that is, by the consent of the citizens, for if the proposition be true, the right of the citizen to give consent would be controlled by the same prohibition which would deprive Congress of the right to compel unless it can be said that although Congress had not the right to call because of state authority, the citizen had a right to obey the call and set aside state authority if he pleased to do so. And a like conclusion demonstrates the want of foundation for the contention that although it be within the power to call the citizen into the army without his consent, the army into which he enters after the call is to be limited [245 U.S. 366, 382] in some respects to services for which the militia it is assumed may only be used, since this admits the appropriateness of the call to military service in the army and the power to make it and yet destroys the purpose for which the call is authorized-the raising of armies to be under the control of the United States. > … > Because the power of Congress to raise armies was not required to be exerted to its full limit but only as in the discretion of Congress it was deemed the public [245 U.S. 366, 384] interest required, furnishes no ground for supposing that the complete power was lost by its partial exertion. Because, moreover, the power granted to Congress to raise armies in its potentiality was susceptible of narrowing the area over which the militia clause operated, affords no ground for confounding the two areas which were distinct and separate to the end of confusing both the powers and thus weakening or destroying both. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [August 2, 2009, 1:03pm UTC](https://boards.straightdope.com/t/is-the-draft-forbidden-by-the-13th-amendment/504432/11 "2009-08-02T13:03:49Z")
> [@Northern\_Piper](#): > > I’m not sure I understand your point, but if I do, I don’t think I agree with it. The power to call up the state militias, and the power to maintain federal forces, are two separate powers under Article I. The power to maintainn federal forces is set out in Article I, s. 8, cl. 12, while the power to call out the state forces is set out in Article I, s. 8, cl. 15. > > Chief Justice White rebutted a similar argument in the draft cases: I wasn’t arguing that Congress can’t draft citizens in time of war; both by law and by practice it can. I was pointing out the contradiction of defining “militia” one way when determining who is eligible to be summoned to federal military service (everybody) and defining it a different way when determining who may be in possession of a firearm (only members of the police or military). I don’t want to completely derail this thread into a gun debate, but my point is that the confusion about what the role of the draft and the National Guard is comes from a slippery slope process whereby the original written meaning of the Militia has been altered almost beyond recognition into the modern conception of the draft and the National Guard. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 4, 2009, 5:23pm UTC](https://boards.straightdope.com/t/is-the-draft-forbidden-by-the-13th-amendment/504432/12 "2009-08-04T17:23:24Z")
thanks for the clarification - I understand your point now. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [August 5, 2009, 4:18pm UTC](https://boards.straightdope.com/t/is-the-draft-forbidden-by-the-13th-amendment/504432/13 "2009-08-05T16:18:15Z")
If the power to “raise and support armies” means that you can compel an individual citizen to join that army against his will, does it not also that the power to “coin Money” would authorize Congress to force someone to work at the U.S. Mint against his/her will as well? ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [August 5, 2009, 5:01pm UTC](https://boards.straightdope.com/t/is-the-draft-forbidden-by-the-13th-amendment/504432/14 "2009-08-05T17:01:37Z")
> [@jtgain](#): > > If the power to “raise and support armies” means that you can compel an individual citizen to join that army against his will, does it not also that the power to “coin Money” would authorize Congress to force someone to work at the U.S. Mint against his/her will as well? You have got to be kidding. :rolleyes: To raise and army, you have to have an army, meaning, you have to have people turned into soldiers. To “coin Money” you don’t have to have people at all being the coins. Your analogy would be acceptable only if you were comparing drafting the people who do the raising and supporting of the armies to drafting the people who did the minting of the coins. :smack: ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 5, 2009, 5:02pm UTC](https://boards.straightdope.com/t/is-the-draft-forbidden-by-the-13th-amendment/504432/15 "2009-08-05T17:02:37Z")
that’s the same question **SteveMB** raised in post #8, which I responded to in post # 9. The full text of Chief Justice White’s decision goes through the history of compulsory military service and concludes that given the nature of the state, which protects all citizens and their property, the state in turn has the power to compel military service in its defence. I don’t see that argument working for most of the other enumerated powers in Article I, s. 8, but perhaps some US law Dopers might comment? ---
**Author:** ![Bookkeeper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bookkeeper/32/281_2.png) [@Bookkeeper](https://boards.straightdope.com/u/Bookkeeper)\ **Post date:** [August 5, 2009, 8:26pm UTC](https://boards.straightdope.com/t/is-the-draft-forbidden-by-the-13th-amendment/504432/16 "2009-08-05T20:26:58Z")
> [@jtgain](#): > > If the power to “raise and support armies” means that you can compel an individual citizen to join that army against his will, does it not also that the power to “coin Money” would authorize Congress to force someone to work at the U.S. Mint against his/her will as well? Since forced conscription in some form has a long history as a common method by which states raised armies, and especially used by the sort of autocratic rulers they felt they had just freed themselves from, it is not much of a stretch to infer that the drafters of the US Constitution would have specifically forbidden this in Article I if they had intended that Congress could not raise armies in this way. It is also unlikely that the Thirteenth Amendment, adopted right at the end of a war that featured large-scale conscription, was intended to apply to such “servitude” by those who drafted and ratified it. The logical analysis is that the reference to involuntary servitude in the amendment was intended to prevent the former slave states from using debt peonage and similar institutions as a legally different but effectively equivalent way of retaining slavery, while still allowing courts to sentence prisoners to hard labour.