Isn't the "Draft" unconstitutional?

[Michigander]

The Constitution of the United States of America, Amendment XIII, Section 1, states:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

How can anyone construe the draft as not being "involuntary servitude"?

 

[Cosmoline]

I'm sure it's been challenged along those lines, probably as recently as the 1970's. But the courts have no doubt interpreted the 13th Amendment to get around the problem. After all, the 13th Amendment was only made possible because of a lot of draftees.

 

[Ian]

They avoid that argument by ignoring it. If the feds want draftees, they will get draftees - regardless of the fact that a draft is a completely obvious breach of this country's basic founding premises.

 

[HEiST]

Watch it- remember Wombat's thread?

The draft supporters are about to come out of the collective woodwork.

 

[jefnvk]

Do remember that when the country was formed, the militia was every male of fighting age. I don't think anyone seen it as such back then.

WELL HEiST was right.

I think that everyone physically able to (read: women too) should serve. Of course, there would be a non-military option for religious objectors. You don't want to support your country in some way, well, there's the door, leave your citizenship papers on the table over there.

 

[SodiumBenzoate]

the militia was every male of fighting age.

Yes, and IIRC, it was voluntary. The draft isn't.

 

[Brett Bellmore]

There's also the little matter of the 13th amendment being ratified something like 80 years after the country was founded. Amendments: They change things. That's what they're FOR.

But, yeah, this is one of those topics the Supreme court won't even THINK about touching.

 

[Michigander]

Yes, from what I understand, the SCOTUS has refused to hear cases concerning the draft.

Also, as for every male being a part of the Militia, that was during a time when it was understood that there would be no "standing army" and the temporary army that would be raised from time to time was to be made up of various state militias. Each state was to appoint the leaders of their own militias and therefore, if a particular state did not support a particular federal level mititary action, then that state might not send troops. To me, this would be a check on a federal standing army doing it's own will instead of the will of the people.

Am I incorrect in this understanding?

 

[JPL]

Involuntary servitude means slavery -- you are the property of another person, chattle, with no rights under law.

Even when you're drafted, you're paid, you still have the right to vote, etc.

Check out title 50 of the US code.

 

[Linux&Gun Guy]

Ever hear of indetured servents?

 

[thefitzvh]

Like any other dumb law, it's the people's fault. The militia act defined who comprised the militia (every able bodied male, yada yada yada) and the selective service act defind the method for calling them up. Thus, the draft existed because we allowed into office representitives and senators who passed the requisite laws.

 

[AZRickD]

http://capmag.com/article.asp?ID=2346

From Capitalism Magazine:

Ronald Reagan: "[T]he most fundamental objection to draft registration is moral...a draft or draft registration destroys the very values that our society is committed to defending."

During the War of 1812, Daniel Webster fervently condemned the draft on constitutional grounds:

"Where is it written in the Constitution, in what article or section is it contained, that you may take children from their parents, and parents from their children, and compel them to fight the battles of any war, in which the folly or the wickedness of Government may engage it?"

The United States went on to win that war without a single conscript. Proof that when liberty is truly threatened, there is no shortage of Americans willing to take up arms in its defense.

From Lew Rockwell citing Representative Ron Paul --which has a longer version of Webster as well:

http://www.lewrockwell.com/paul/paul24.html

Another eloquent opponent of the draft was former President Ronald Reagan who in a 1979 column on conscription said:

"...it rests on the assumption that your kids belong to the state. If we buy that assumption then it is for the state – not for parents, the community, the religious institutions or teachers – to decide who shall have what values and who shall do what work, when, where and how in our society. That assumption isn't a new one. The Nazis thought it was a great idea."

 

[Michigander]

Involuntary servitude means slavery -- you are the property of another person, chattle, with no rights under law.

Even when you're drafted, you're paid, you still have the right to vote, etc.

Then why use the words, "slavery nor involuntary servitude" if they are one and the same? To me, I'll have to research further, but to me, slavery means someone owns someone else. Involuntary servitude would mean that someone is force to serve someone or something against their will by actual force or threat of force, whether or not they are paid.

editted to add: could you be more specific as to where in Title 50 of the US Code I can find the unconstitutional law?

 

[DMF]

Interesting line of thought with the 13th Amendment objection to the draft. However, you're about 9 decades behind the times. A few people, including a gentleman named Arver, had the same thought during WWI. His case and others were decided in the US Supreme Court decision in Arver v. US (1918). You can read it here: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=245&invol=366

Arver lays out the logic the court used in saying that the draft did not violate the 13th Amendment protection from involuntary servitude. It makes sense if you take the time to read it.

Arver has been the basis of every draft law challenge up to the 70s. The real question now is whether Arver could be used to justify stop loss for soldiers who have completed their entire contractual commitment (both IRR and active). There are some lawyers that will actually argue that Arver's exception would not allow for Stop Loss. Whether or not the courts would buy that argument is unknown.

EDIT TO ADD: Contrary to these statements:

They avoid that argument by ignoring it.

yeah, this is one of those topics the Supreme court won't even THINK about touching.

Obviously the Supreme Court has not ignored it, because it has been addressed more than once, first in 1918 as I pointed out, all the way through the Vietnam Conflict and the end of the draft.

 

[DMF]

. . . could you be more specific as to where in Title 50 of the US Code I can find the unconstitutional law?

Inflammatory rhetoric without knowing the facts, how nice.

 

[Bad Words]

Involuntary servitude means slavery -- you are the property of another person, chattle, with no rights under law.

Even when you're drafted, you're paid, you still have the right to vote, etc.

Slaves were sometimes paid, too, hence their ability to buy their freedom from their masters. And saying that the draft isn't involuntary servitude because you don't lose all of your rights is ridiculous. Even slaves still retained some of their rights - such as to think and believe what they wish, to keep their own money (as I mentioned earlier), or more rights depending on their owner. A choice between service and prison does doesn't sound like freedom to me.

The draft may be justified in my eyes if the country is truly endangered by warfare and people aren't signing up on their own, but this case seems very unlikely to me. I don't think the Iraq war or Vietnam war were necessary for the common defense of America, and if I did I would have signed up as soon as I learned that their soldiers are stretched thin.

 

[davec]

If I remeber correctly the last serious court challenges to the selective service act(s) over the years occured in1918. Everything since then has been for the most part laughed out of court.

 

[DMF]

Actually Dave there was at least one case in the 80s that made it all the way to the Supreme Court. The petitioner had been denied student loans for failing to register for selective service, and contested the laws that prevented him from receiving educational financial aid. IIRC, he lost his case.

Also, I don't have the citations handy, but I believe there was a case specific to the actual draft that made it to the Supreme Court in the early 70s. That's just the the ones the Supreme Court agreed to hear, the lower courts have addressed this issue also.

 

[Graystar]

The Second Amendment makes the draft legal. The second amendment, like the other civil rights in the Bill of Rights (as opposed to the fundamental rights in the Bill of Rights,) is part right and part obligation.

The right to a jury trial creates an obligation to serve on a jury. The right to compel testimony in favor of the accused creates an obligation to testify. In the same way, the right to keep and bear arms creates an obligation to defend when called upon.

In fact, some of the earlier versions of the amendment contained language allowing conscientious objectors to provide a substitute. That language was ultimately dropped, however...probably when it was realized that there would be no one qualified to substitute who would not themselves be obligated to fight.

 

[Michigander]

DMF, thanks for that link.

Arver lays out the logic the court used in saying that the draft did not violate the 13th Amendment protection from involuntary servitude. It makes sense if you take the time to read it.

It is logical and it does make sense and there is a lot of historical precedent cited.

After reading that opinion, I am inclined to agree with it and now believe the draft to be constitutional.

 

[JPL]

"Then why use the words, "slavery nor involuntary servitude" if they are one and the same?"

It was written what, about 120 years ago, by politicians, right?

Ever see any politician say something simply?

Yes, slaves were sometimes paid, but they certainly didn't have the rights of citizens.

 

[Michigander]

"Then why use the words, "slavery nor involuntary servitude" if they are one and the same?"

It was written what, about 120 years ago, by politicians, right?

Ever see any politician say something simply?

Yes, slaves were sometimes paid, but they certainly didn't have the rights of citizens.

I've changed my mind (or should I say DMF did via the Arver case) about the constitutionality of the draft, but I have yet to change my mind that there is a difference in meaning between "slavery" and "involuntary servitude."

 

[JPL]

So even though slaves were legally considered property, under Supreme Court ruling, they were still citizens, even though they had few, if any legal protections, could be bought or sold at the master's whim, had no standing to bring legal grievances, couldn't vote, were considered only 3/5ths of a person, and so forth and so on.

I'm sure they were very happy about that...

Please tell me, which of your rights do you lose if you're drafted into the service of your nation?

 

[JPL]

It's also my understanding that the militia, at least the militia system as established in the United States, was NOT voluntary.

In that sense it would be much like the fyrd of Anglo-Saxon England.

 

[DMF]

JPL, you lose the right to be free from INVOLUNTARY SERVITUDE. Haven't you been paying attention to the posts in this thread? The Supreme Court has recognized that the draft is an EXCEPTION to the the 13th Amendment protections, but in doing so they were recognizing that while it does subject people to a condition of involuntary servitude, that the people cannot expect to enjoy freedoms without being called upon to defend those freedoms, even if involuntarily. Also, as Arver points out the Constitution cannot grant Congress the power to raise and maintain armies, in word alone. There must be some practical mechanism for Congress to excercise that authority.

It really is quite clear if you read the case. Hell Michigander agrees with me, and we rarely agree on legal issues. If he and I are on common ground it must be a fairly straightforward and universal concept, to encompass our divergent views.