Isn't the "Draft" unconstitutional?


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Michigander
October 26, 2004, 09:01 PM
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"?

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Cosmoline
October 26, 2004, 09:13 PM
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
October 26, 2004, 09:19 PM
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
October 26, 2004, 09:29 PM
Watch it- remember Wombat's thread?

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

jefnvk
October 26, 2004, 09:29 PM
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
October 26, 2004, 09:43 PM
the militia was every male of fighting age.

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

Brett Bellmore
October 26, 2004, 09:58 PM
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
October 26, 2004, 10:28 PM
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
October 26, 2004, 10:28 PM
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
October 26, 2004, 10:31 PM
Ever hear of indetured servents?

thefitzvh
October 27, 2004, 12:08 AM
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
October 27, 2004, 12:17 AM
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.htmlAnother 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
October 27, 2004, 12:30 AM
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
October 27, 2004, 12:33 AM
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
October 27, 2004, 12:40 AM
. . . 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. :rolleyes:

Bad Words
October 27, 2004, 12:47 AM
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
October 27, 2004, 12:53 AM
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
October 27, 2004, 01:11 AM
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
October 27, 2004, 01:27 AM
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
October 27, 2004, 01:41 AM
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
October 27, 2004, 01:57 AM
"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
October 27, 2004, 02:03 AM
"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
October 27, 2004, 02:04 AM
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
October 27, 2004, 02:10 AM
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
October 27, 2004, 02:13 AM
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. :)

JPL
October 27, 2004, 02:15 AM
Michigander,

Here's a link that may shed some light on it, or it may cloud the issue.

http://www.usdoj.gov/crt/crim/1581fin.htm


Also note that during the years leading up to the civil war it was quite gauche to come out and say the word slave, so often euphamisms were employed.

involuntary servitude appears to have been one of those euphamisms.


Here's a good essay on the subject of the draft, too.

http://www.fee.org/vnews.php?nid=5533


Hum... This gets more interesting.

Here's a defintion that indicates that legally, whether or not someone is paid has no bearing on whether the person was held in involuntary servitude or not.

http://www.lectlaw.com/def/i071.htm

JPL
October 27, 2004, 02:23 AM
Well, here's the deal, ultimately...

Diana Ross and the Supremes say it's not unconstitutional, which is probably a good thing, considering how nip and tuck WW II was for awhile.

I had a draft number during the waning days of Vietnam, but was never called -- I got lucky.

I don't know what I would have done had I been called, a number of my friends did the "shuffle off to Toronto" gig.

At this point in my life I'm far too old to be drafted.

The only involuntary servitude I'm subject to is by my wife.

Gordon Fink
October 27, 2004, 01:15 PM
Don’t forget the Third Amendment.

“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

I think this rules out a peacetime draft altogether. If the government takes someone from my household against his will, then I have also been compelled to quarter a soldier.

Obviously, there is still a wartime loophole in the final clause—though this would require Congress to actually declare war. However, if a war is so unpopular that the government can’t recruit enough volunteers, then we probably shouldn’t be fighting it.

~G. Fink

Cosmoline
October 27, 2004, 01:22 PM
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.

Hmmm. Not exactly stunning legal scholarship there. Essentially the Court declared the "mere statement" that the draft is involuntary servitude refutes itself. I'm not sure I agree. The draft clearly is involuntary servitude, albeit for the federal government rather than any one individual. It's one of those many cases where the Court had to ignore the law in order to avoid overturning too much established law. For the same reason you won't see the Court today truly interpreting the Enumerated Powers. So much legal fluid has leaked out of the hole they made in the Commerce Clause that it's better to call the spill a wonderful new lake than to clean it up.

Michigander
October 27, 2004, 06:22 PM
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. (emphasis added)

Might this be interpreted to mean that you can refuse the draft if Congress has not declared war? Hmmm.

Michigander
October 27, 2004, 06:25 PM
Not exactly stunning legal scholarship there. Essentially the Court declared the "mere statement" that the draft is involuntary servitude refutes itself.

My interpretation is that if one has duty to defend the nation and the freedom for which it stands, then no law or amendment to the contrary can be valid because one would invalidate the other and would make no sense whatsoever.

JPL
October 27, 2004, 09:59 PM
"“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

Not sure how that would apply, Gordon.

The Founders were talking about a government forcibly placing a soldier in your home, someone who is not related to you, and telling you that you have to provide room and board, gratis.

That was a British trick in the years prior to the Revolution, primarily in New England.

Silent-Snail
October 28, 2004, 02:00 AM
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.

Somehow I have serious doubts that the same would happen today. Sure odds are there would be a large number of volunteers , but not enough to do all that would need to be done in the face of a full scale invasion such as in 1812.

Call me what you will, but this country lost something long ago.:( :fire:

Bob Locke
October 28, 2004, 02:55 AM
I've read Arver as well, and while I recognize the essence of the decision I disagree with it. I'm quite certain we all have at least a few SC decisions with which we disagree. :)

IMO, if the people of a country are not willing to collectively rise up in their own defense voluntarily, then they do not deserve to remain a free people.

I served a dozen years in the Navy, and received an honorable discharge due to a knee injury. I am no longer subject to a draft, but if there were ever an invasion of this country you can bet I'd be lending a hand. I'm sure that goes for pretty much everyone on this message board. And I think that's the way it ought to be.

spartacus2002
October 28, 2004, 07:25 AM
what is a draft but a cheap way of providing cannon fodder for the impetuous wars of indignation by whoever the rulers currently are? And don't bring WWII into the equation; the draft was instituted before Pearl Harbor. After Pearl Harbor, people were lined up around the block volunteering to enlist. Hell, my 33yo (at the time) grandpa with 2 kids volunteered and spent a year in Europe.

Don't get too starry-eyed about how a draft will teach rude young jerks some patriotism and manners. I've BTDT and it's hard enough with the kids today who have volunteered and supposedly WANT to be here.

I spent a decade in uniform so my kids wouldn't have to. Slave army? no thanks.

JPL
October 28, 2004, 05:08 PM
Spartacus,

Early "volunteers" for the military after Pearl Harbor petered out after about a year.

The bulk of the US military that fought, and won, the Second World War were draftees, not enlistees.

Michigander
October 28, 2004, 07:18 PM
IMO, if the people of a country are not willing to collectively rise up in their own defense voluntarily, then they do not deserve to remain a free people.
Viet Nam and Iraq come to mind.

Hawkmoon
October 28, 2004, 09:17 PM
Quote:
IMO, if the people of a country are not willing to collectively rise up in their own defense voluntarily, then they do not deserve to remain a free people.

Viet Nam and Iraq come to mind.
In what way? Are you attempting to suggest that if the gummint had not drafted young men to go be shot in Viet Nam that the security of the United States of America would have been compromised?

Sorry. I was there. We didn't do anything other than prolong the length of time the people of South Vietnam lived under a corrupt (albeit nominally anti-communist) regime.

Michigander
October 28, 2004, 10:21 PM
quote:
--------------------------------------------------------------------------------
Quote:
IMO, if the people of a country are not willing to collectively rise up in their own defense voluntarily, then they do not deserve to remain a free people.

Viet Nam and Iraq come to mind.
--------------------------------------------------------------------------------


In what way? Are you attempting to suggest that if the gummint had not drafted young men to go be shot in Viet Nam that the security of the United States of America would have been compromised?
Not at all.

What I was implying was that perhaps, if the Iraqi people or the South Vietnamese were not willing to do it, why should we do it for them?

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