Isn't the "Draft" unconstitutional?

[JPL]

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]

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]

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.â€

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]

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]

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]

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]

"“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.â€

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]

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.

 

[Bob Locke]

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]

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]

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]

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.

 

[Aguila Blanca]

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]

quote:
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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.
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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?