the draft question

[John_Martin]

This country has far too many people who want to enjoy the fruits of other’s labors, without lifting a finger on their own. For example, it is well documented that many families have survived for generations on welfare, without any concern about where the money came from, and without making any effort to support themselves. I believe the answer in this column tends to help people who are afraid of participating in their country’s defense (not just from actual foreign invasion, but in those activities that make us strong enough to discourage other countries from thinking of taking such actions). I believe those healthy persons who actively seek to avoid the draft should be summarily deported, without any jail time to delay their departure (assuming you can find a country willing to accept cowards).

[mikeodad]

I do not understand how the below can apply to Iraq (even less Viet Nam) - There is no insurrection taking place, rather the US is trying to start one. Equally I haven’t heard much about Iraq’s invasion of the USA (Viet Nam didn’t get too far across the sea either)

What enables the federal government to conduct the draft is clause 15 of Article I, Section 8, which permits Congress to call out the militia to “execute the laws of the Union, suppress insurrections and repel invasion.” This means that Congress can send draftees off to foreign countries after a declaration of war, which has the force of law. But it doesn’t include undeclared conflicts like Vietnam. And presumably it wouldn’t include a peacetime draft.

[Wikkit]

Please link to the column being discussed. You can just put an url ( http://www.straightdope.com/classics/a1_140b.html ) in your post with spaces before and after it, and the board will make it a link. Or you can use the board code to do this: Is the draft forbidden by the 13th Amendment? from 13-Apr-1979.

I think that creating a draft for the pissing contest in Iraq would make the administration’s popularity drop like a rock, the opposite of what they’re going for. It would also undoubtedly be challenged if Congress didn’t declare war first.

Oh, and welcome to the SDMB, John and Mike.

[John_Martin]

I believe declarations of acts of war by Congress have been successfully sidestepped by several administrations (from the Korean “police action” thru who-knows-when-it-will-stop) by use of executive orders, with some form of consent from Congress. I served 2 tours in Vietnam, and while I did not agree with the manner in which the administration took over the day-to-day control of the operations, as a career soldier, I never questioned the order to go there - perhaps this was a reflection of the nature of my generation (I was born in 1938).
I cannot disagree with Mikeodad or Wikkit in principle.

[Northern_Piper]

Further to Cecil’s comments on the 13th Amendment, the Supreme Court rejected a challenge to the draft during World War I that was based in part on the 13th Amendment, in Arver v. U.S., 245 U.S. 366 (1918). The Court dismissed the argument pretty summarily, as follows:

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.

So arguments based on the 13th Amendment are clearly out.

However, the Arver decision seems to rebut Cecil’s comments that it may be open to argue that only the states can draft citizens into the militia, and that the federal government is restricted to a volunteer army. The plaintiffs in Arver advanced that argument, and the Court shot it down.

The Court held that Article I, section 8 of the Constitution gives Congress the power to enact a compulsory draft:

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 provided 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.

The Court went on to say that it is an error to argue that the power of the states to raise militias reserves to the states the power to impose a compulsory draft. The militia power of the states is subordinate to the general federal power to raise armies. (I note in passing that Cecil states that the federal power to impose a draft is based on the militia clause. That does not appear to be the case, based on Arver. The federal power to impose a draft is based on the clause granting Congress the power to raise and support armies.)

The key passage on this point reads as follows:

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.

So based on this case, I would argue that the limitations on the service of the militia would not apply to the use of the army, since the constitutional authority for the two services is different. (Unless, of course, the Court has subsequently departed from the Arver analysis - I’ve not noted it up.)

[The_Ryan]

Well, this seems to be more of a GD thread, but no one’s moved it yet. John Martin, it would not be hyperbole in the least to refer to your attitude as being Fascist. While of course there are hypothetical cases where a draft would be justified, the idea that the government is justified in stripping its citizens of their constitutional rights any time it feels like it is antithetical to democracy.

The idea that clause 15 of Article I, Section 8 justifies the draft has three problems:

1. The full text is “[ The Congress shall have power] To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions”. It says “provide for”, not “enact”.
2. Even if we grant that it gives the power to actually call forth the militia, since when does “call forth” mean “conscript”? It seems to me that “call forth” means exactly that: call forth. As in “act for voluntary enlistment”.
3. This clause is irrelevant to countering the argument that the 13th amendment prohibits the draft, as amentments take precedence over the original constitution.

Northern Piper

So arguments based on the 13th Amendment are clearly out.

DO you say that as a lawyer, or as a citizen?

[Northern_Piper]

Clearly as a lawyer, as I’m not a citizen of the U.S.

[Danimal]

Northen Piper, thank you for providing that interesting legal authority. Cecil ought to have at least mentioned that case.

Looking at that passage from Arver v. U.S., I consider the Court’s “reasoning” specious, even farcical. Look, this isn’t rocket science. Is the draft involuntary? Yes. Is the draft servitude? Yes. What’s the problem?

Even stipulating that compulsory military service is a “great and noble duty,” stipulating further that it defends “the rights and honor of the nation,” stipulating still further that it is the will of the “great representative body of the people” that this be done, what does any of this have to do with the two questions before the court: is it involuntary, and is it servitude? Nothing; the court’s whole “argument,” if it may dignified with that term, is a massive non sequitur.

Suppose that a plantation owner came before the court with all his slaves in tow, and presented proof positive, undisputed by any side, that the products of his plantation were “great and noble,” that they defended “the rights and honor of the nation” (let’s say 100% of the profits are being turned over to fight some great and noble war the U.S. is fighting), and slammed down on the table a resolution expressing the sense of the U.S. Congress that his plantation’s operations, slavery included, were in accordance with its will. Would that make the slavery legal?

If the Arver court had played the old “compelling state interest” card, which apparently trumps any constitutional right in the legal reasoning of American courts, I could at least understand it. But its existing decision is simply a travesty.

Incidentally, I don’t agree with Cecil where he implies that the 13th amendment argument against the draft is invalid because the amendment was intended to outlaw slavery. I don’t know any evidence that the 13th amendment was intended to outlaw only slavery. I think other forms of involuntary servitude like serfdom and the medieval corvee (the right of the king to force peasants to repair roads and do other public works without pay) were also intended to be abolished. I certainly don’t think they’re constitutional!

I’ll concede that the 13th amendment argument against the draft is a settled legal question, but I will not concede that it has been settled correctly.

[Northern_Piper]

Danimal, I agree that the Court’s analysis in the Arver case was very sketchy and tautaulogical, but I don’t agree that it’s wrong. I think that it’s a stretch to conclude that an amendment that was aimed at abolishing one long-standing institution, slavery, also abolished another one, the military draft. I would make that argument based on several different points, as follows:

I would respectfully disagree with your argument that it’s not rocket science, etc. In determining the meaning of a statute or constitutional provision, courts certainly look at the ordinary meaning of the words used, but they don’t restrict themselves to that. They also look at the problem that the legislators were trying to address, what the drafters of the provision said, the overall legal and social context, and a lot of other factors. This is particularly the case in construing a constitutional amendment, which cannot easily be amended, and also where the words in question, such as “involuntary servitude”, can be given a very broad interpretation.

So, what was the problem that Congress and the states were aiming at in passing the 13th Amendment? In the context of the Civil War, I think it’s pretty clear that they wanted to abolish the institution of slavery and overturn the Supreme Court’s decision in Dred Scott. So in construing the phrase “involuntary servitude” the courts will start with the presumption that it was aimed at the institution of slavery as it existed prior to the passage of the enactment. That’s not to say that the Amendment doesn’t prohibit other types of involutary servitude, such as the corvee - it’s just that the farther away one goes from the example of slavery, I think the harder it will be to argue that the Amendment applies.

A similar point is that the amendment is not aimed at “involuntary servitude” alone. The Amendment abolishes “slavery and involuntary servitude.” By linking “involuntary servitude” to “slavery”, the drafters can be taken to be saying that the focus of the amendment is slavery, but they also want to abolish related types of servitude that are close to slavery, but may not technically be slavery, as that concept was legally understood. In other words, the reference to “involuntary servitude” was meant to keep those weaselly lawyers ( ) and legislators in check, who might try to evade the spirit of the amendment by coming up with new types of servitude that technically were not “slavery.”

Another factor in respect to this particular issue is to ask: is there any indication that the drafters meant the Amendment would apply beyond the particular problem of slavery, and also go to abolish the power of government to conscript citizens into the military? One way to approach this issue is to review the debates in Congress and see what the drafters of the Amendment said about it. If the debates on the Amendment were all talking about slavery, Dred Scott, the Emancipation Proclamation and the Civil War, then that would be a strong factor arguing that “involuntary servitude” should be interpreted as aimed at slavery-like conditions. If on the other hand there were members of Congress speaking about the impact of the Amendment on situations not analogous to slavery, that would be a factor suggesting that the Amendment would abolish conscription as well. I’ve not personally reviewed all of the debates in Congress and the ratifying states on the Amendment (not wanting to burden myself with a Master’s Thesis at this particular time), but personally I would be surprised if the debates included anything other than a discussion of the evils of slavery.

A related point is that at the very same time as the federal government was passing the 13th Amendment and sending it on to the states, it was also fighting a Civil War relying on conscription to fill out the federal army. Granted, the National Conscription Act of 1863 was passed by the Congress elected in 1860, while the 13th Amendment was passed by the Congress elected in 1864, so it’s not possible to say that the same people drafted both. But, there’s no indication that the Congress that passed the 13th Amendment saw anything wrong with the Conscription Act of 1863. If they intended to abolish conscription when they passed the Amendment, you would think they would have simultaneously repealed the Conscription Act. As well, the Congress that passed Conscription Act also abolished slavery in the District of Columbia, so they obviously didn’t view the two as analogous.

The military draft was well-known to the drafters of the Amendment. Although the 1863 Conscription Act was the first centralised federal draft, compulsory military service had been a long-standing feature in the United States, through a combination of state and federal laws. (See The American Militia and the Origin of Conscription: A Reassessment, by Jeffrey Rogers Hummel, for a review of the laws governing complusory military service in the colonial period, the Revolutionary War, and the various wars fought by the United States prior to the Civil War.)

Since the concept of compulsory military service had such a long history prior to the Civil War, and was actually being used to help fight the Civil War, I would find it hard to believe that the Congress was implicitly abolishing compulsory military service when it passed the Amendment aboloishing slavery.

Finally, one must ask: is conscription the same thing as slavery? With the exception of a few nutbars out there, I don’t think you would find many people in the U.S. nowadays willing to argue that slavery is anything but a gross moral evil. There is a strong social consensus on this point. That’s not the case with compulsory military service. There is a wide range of views on that issue, as the two initial posts on this thread illustrate. In construing a constitutional amendment, that type of overall social view is an important factor.

[Danimal]

Northern Piper, you’re clearly right that Congress did not specifically intend to destroy conscription by the 13th Amendment. Congress’ behavior throughout the war demonstrates that it considered conscription a perfectly legitimate institution. For two reasons, though, I am not sure that disposes of the issue.

First, with an amendment to the U.S. Constitution, which must pass three quarters of the state legislatures as well as the Congress, the intent of the state legislatures also ought to be considered. I’ll admit I don’t know what the state legislatures’ feelings about conscription were; they may have been using conscription themselves to man the state militias. But given the vast unpopularity of the draft on both sides in the Civil War (giving rise to numerous riots), the states may have felt by passing the amendment that they were indeed ridding themselves of the hated draft as well as of slavery.

Second, I think the courts in some instances should and do give effect to the words of the law, even when the Congress itself ignored those words. For instance, the very same Congress we are discussing passed the 14th Amendment, with its guarantee to all citizens of equal protection of the laws. By that amendment, Congress clearly did not intend to end racial segregation, since in that same time period, Congress specifically provided for separate schools for whites and blacks in the District of Columbia. Yet the courts have found that government-mandated racial segregation violates equal protection and is unconstitutional. And rightly so, because segregation does deny people equal protection of the laws, however much Congress at the time may have pretended otherwise.

I would not say that the draft is literally the same thing as slavery, as it does not reduce the soldiers to chattels who can be bought and sold. I don’t even say it is the same thing as as serfdom, since it is not heritable or lifelong (although, under the Arver decision, it appears that Congress would be authorized to make the draft heritable and lifelong; the reasoning is quite literally unlimited). I do say that it is involuntary servitude, and functionally it is the same as indentured servitude (indeed worse than indentured servitude, since a contract of indenture could not be forced upon an individual), and as the corvee, both of which I expect would be ruled unconstitutional if brought to a test.

P.S.: If it is not too intrusive to ask, what country are you from, Northern Piper? You say you are not a U.S. citizen, but your knowledge of U.S. law exceeds that of many U.S. citizens.

[The_Ryan]

I can see how the issue I was getting at wasn’t really clear. Did you mean “So arguments based on the 13th Amendment are clearly out as legal arguments” or “So arguments based on the 13th Amendment are clearly out in general”?

As for your argument based on intent, I find it rather odd. Suppose I were to say “I’m to willing to pay $50,000 for your car”. You say “Okay” and sign over the title, and then ask for the money. I reply “I realize that I plainly stated that I would pay you $50,000, but I had no intention of actually doing so, and therefore I don’t owe you anything.”

How would this differ from the US saying that it would abolish involuntary servitude, and then later saying “Well, it’s clear that we had no intention of actually keeping that promise, so obviously we’re off the hook”?
Danimal: his coordinate place him in Western Canada.

[Northern_Piper]

*Originally posted by Danimal *
P.S.: If it is not too intrusive to ask, what country are you from, Northern Piper?

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[Nametag]

*Originally posted by The Ryan *
**I can see how the issue I was getting at wasn’t really clear. Did you mean “So arguments based on the 13th Amendment are clearly out as legal arguments” or “So arguments based on the 13th Amendment are clearly out in general”?

As for your argument based on intent, I find it rather odd. Suppose I were to say “I’m to willing to pay $50,000 for your car”. You say “Okay” and sign over the title, and then ask for the money. I reply “I realize that I plainly stated that I would pay you $50,000, but I had no intention of actually doing so, and therefore I don’t owe you anything.”

How would this differ from the US saying that it would abolish involuntary servitude, and then later saying “Well, it’s clear that we had no intention of actually keeping that promise, so obviously we’re off the hook”? **

To state that you are willing to do a thing is not an offer to do so. The element of intent is the most important element in western law. It pervades every branch: criminal, constitutional, contracts, torts - everything. The majority of legal issues surrounding intent are settled by two things: what one says and what one does. In contract law, no contract is formed unless one makes a clear expression of intent to be bound by it. “I’m willing” doesn’t cut it; “I will” does.

In jurisprudence, wherein a judge is required to decide what a statute means, the judge msut consider the intent of the legislators who passed it. They judge this not only by the language of the statute, but by the language used in drafts and in debates. If the author of a bill says “look, I know it says thus and such, but there’s no way this bill is going to have that effect,” then the judge can’t (or shouldn’t) say “despite the intent of the legislators, I’m going to interpret this statute this other way because the language gives me room to do it.” Similarly, it is known through historical context, debate, and subsequent writings that the 13th Amendment was intended to prohibit slavery, and any other form of servitude that might replace it. Attempts to prohibit the draft on the grounds that it violates the 13th Amendment require a finding that the draft replaces slavery, which is absurd on the face of it.

[Irishman]

Northern Piper, try using the code tag.

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I believe that more closely resembles your intent. (Note the code tag preserves spaces.)

[Northern_Piper]

oh, piffle. It came out just fine on Netscape, but I see it got gibbled on Explorer!

Thanks for the fix, Irishman. Did not know about code tag. Ah well, one cannot make progress without making mistakes.

[Nametag]

1. It didn’t come out very well on MY Netscape, Piper.

2. Making big graphics out of little graphics sucks up huge bandwidth, and slows down the server. A moderator should be along shortly to tell you to knock it off.

3. Hi, Opal!

[Northern_Piper]

Fair enough - I’ll drop them a note by e-mail - if a mod wanders by in the interim, feel free to delete.

[friedo]

2. Making big graphics out of little graphics sucks up huge bandwidth, and slows down the server. A moderator should be along shortly to tell you to knock it off.

I don’t see why - the smiley should be cached by the browser after it’s downloaded once. But it is kinda annoying.

Northern Piper:

I think that it’s a stretch to conclude that an amendment that was aimed at abolishing one long-standing institution, slavery, also abolished another one, the military draft.

It’s interesting you should note that, as I believe it was during the Civil War that Congress issued the first ever Federal draft in the US.

[Nametag]

It’s been noted on other threads that caching the smiley does nothing to alleviate the server’s need to repeatedly instruct your computer to resurrect the browser from the cache. In addition, there are many folks who have caching turned off entirely, as they do not want excess material on their hard drives or in their RAM.

[The_Ryan]

*Originally posted by Nametag *
To state that you are willing to do a thing is not an offer to do so.

:rolleyes:
Fine. Replace “I’m wiling” with “I will”. Now am I justified in refusing to hand over the money?
[quo6te]“I’m willing” doesn’t cut it; “I will” does.
[/quote]

The 13th amendment clearly states that the US will prohibit involuntary servitude.

Similarly, it is known through historical context, debate, and subsequent writings that the 13th Amendment was intended to prohibit slavery, and any other form of servitude that might replace it.

Did you mean to say “… the 13th amendment was intended only to prohibit slavery…”? Because I don’t know of any evidence to that effect.