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A question for the legal eagles out there

With Charlie Rangel (D-NY) once again trying to bring back the draft (it is worth noting that the last time he did this, the Republicans pulled the low-down, dirty, unethical trick of putting his bill up for a vote exactly as he wrote it, leading to its defeat by a 402-2 vote, with Rangel himself voting against his own bill), one question keeps coming to mind:

How the dickens is compulsory military service allowable under the Constitution, especially the 13th Amendment, which 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.

I'd have to say that "serve in the military or go to jail" seems to violate the spirit, if not the letter, of that amendment...


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Comments (26)

"Could be a law, I don't kn... (Below threshold)

"Could be a law, I don't know".

James Gregory

It's not allowed, Jay. You... (Below threshold)

It's not allowed, Jay. You'd need to amend the amendment to make Rangel's idea fly.

The only exception would be during a time of war, of course.

Juries are compulsory servi... (Below threshold)

Juries are compulsory service, too.

I'm sure this legal issue came up with the draft in WWI and before WWII, and was settled by the courts that military service didn't count.

Yep-- www.gpoaccess.gov/constitution/html/amdt13.html

Situations in Which the Amendment Is Inapplicable

In a wide range of situations the Thirteenth Amendment has been
unsuccessfully pressed into service. Thus, under a rubric of ``services
which have from time immemorial been treated as exceptional,'' the Court
held that contracts of seamen, involving to a certain extent the
surrender of personal liberty, may be enforced without regard to the
Amendment.\36\ Similarly, enforcement of those duties which individuals
owe the government, such as service in the military and on juries, is
not covered.\37\ A state law requiring every able-bodied man within its
jurisdiction to labor for a reason

[[Page 1558]]
able time on public roads near his residence without direct compensation
was sustained.\38\ A Thirteenth Amendment challenge to conscription for
military service was summarily rejected.\39\ A state law making it a
misdemeanor for a lessor, or his agent or janitor, intentionally to fail
to furnish such water, heat, light, elevator, telephone, or other
services as may be required by the terms of the lease and necessary to
the proper and customary use of the building was held not to create an
involuntary servitude.\40\ A federal statute making it unlawful to
coerce, compel, or constrain a communications licensee to employ persons
in excess of the number of the employees needed to conduct his business
was held not to implicate the Amendment.\41\

\36\Robertson v. Baldwin, 165 U.S. 275, 282 (1897).
\37\Butler v. Perry, 240 U.S. 328, 333 (1916).
\39\Selective Draft Law Cases, 245 U.S. 366 (1918). The Court's

The U.S. Supreme Court foun... (Below threshold)

The U.S. Supreme Court found that 'services which have from time immemorial been treated as exceptional' are not barred by this amendment. These services include service in the military. Robertson v. Baldwin (1897), Butler v. Perry (1916), Selective Draft Law Cases, 245 U.S. 366 (1918). It is an implied finding of the Court that no formal declaration of war is necessary before a draft can be imposed. United States v. O'Brien (1968) (upholding conviction for burning a draft card in the time of the undeclared war in Vienam).

The Constitution gives the ... (Below threshold)

The Constitution gives the power for Congress to raise and fund armies; I suppose that's the clincher here.

It seems to me that the Con... (Below threshold)
Rod Smith:

It seems to me that the Constitution covers the draft. Article I Section 8 clearly says:

"Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

"Then in three clauses says cite their duties:

"To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

The other clincher is the M... (Below threshold)
The Listkeeper:

The other clincher is the Militia act...

If courts are using "equal ... (Below threshold)
Mac Lorry:

If courts are using "equal protection under the law" clauses in various state constitutions to extend marriage rights to gays, then it seems logical to argue that a draft of only young men also violates "equal protection under the law". Rangel's proposal avoids that issue by drafting all young folks into some form of national service. I don't think Rangel was trying to avoid the "equal protection" problem of a boy only draft, but rather he wants to make war as politically unpalatable as possible.

There's a difference betwee... (Below threshold)

There's a difference between National Service for all and military service for all.

Our selfish and self-centered majority of citizens will never stand for National Service for all - why it would be robbing folks of the right to rest their fat asses on the backs of folks who choose to sacrifice their time, effort, and careers to support the existence of our society.

That's rather cynical of yo... (Below threshold)

That's rather cynical of you, Epador...but dead-on accurate.

The <a href="http://www.ptg... (Below threshold)

The draft unconstitutional? Thats a good one.

National service for all, l... (Below threshold)

National service for all, like any other sort of mandatory volunteerism, eats away at genuine vounteerism (as mandatory charity destroys real charity). People do what they must and then they (quite rightfully) figure that they don't need to do anything else. They're done.

It should be opposed for public highschools, too. No one learns the value of volunteering to help others by anything other than actual, real, volunteer work. That is something you feels good about because it was optional, you know you didn't have to do it, you know you made a difference.

Mandatory volunteering takes away the "volunteering" part completely.

National service ALSO means a permanent and extensive network of management, with undoubtably centralized authority and planning, will have to be implemented.

These are all very bad ideas with an end result that people will be less likely to do anything free and contributing to the community that they aren't forced to do.

Of course it's unconstituti... (Below threshold)

Of course it's unconstitutional. So is the reason for taking Ms. Kelo's house. So is taking away value from a property by regulatory means. So is gun control. So is McCain-Feingold. So is controlling intrastate anything under the excuse of interstate commerce. So are many, many things.
The poor old paper just becomes hard to read under disrespect-laden poop smears of generations of judges and politicians, so folks are increasingly unable to recall what it means.

The thinking is this:... (Below threshold)
Mark L:

The thinking is this:

According to the Constitution all citizens belong certain ages to the unorganized militia of the United States. It is a responsibility of citizenship. The draft is seen as nothing more than mobilization of the unorganized militia.

The militia can only be mobilized to deal with an outside military threat or civil insurrection. You can mobilize the militia to deal with an invasion. You can mobilize the militia to conduct acts of marque and reprisal against bodies that have conducted military operations against the United States or its citizens and their property. You can mobilize the militia to put down a rebellion. This has been the traditional use for a draft when they had it.

Since picking up the trash or other forms of civilian service are not reactions to civil insurrection or military action, I think it likely that drafting people for these activities is probably Unconstitutional.

On the other hand, in a city with a gang problem, a mayor could likely declare a state of insurrection, and "draft" all unemployed teenage males not in school for police duties -- patroling the streets, or similar such activities. It would cause all sorts of ruckus, but the courts would likely declare it Constitutional, unless the state constitution barred such action.

He could not use these youths for non-police duties -- like picking up litter, but he could have them patrolling the neighborhoods for 12 hours a day under the supervision of adult law officers. Since this would suck up all the gang-bangers, the state of insurrection would go away -- at least until the militia is "demobilized" and the gang members sent home.

As far as im concerned CHUC... (Below threshold)
spurwing plover:

As far as im concerned CHUCKY RANGLE is out of his mind

Interesting exception you g... (Below threshold)
John in CA:

Interesting exception you guys have mentioned. It sounds like SCOTUS has declared that the 13th Amendment means what it says except when it doesn't mean it. Regardless, I would like to stipulate that a draft is morally wrong, whether or not the Constitution permits it. I'm in the Air Force, but my personal opinion is that if a country, any country, cannot persuade enough of its citizens to volunteer to protect it, then it doesn't deserve to be protected and should instead receive whatever fate befalls it. We survive as a nation because people choose to fight on its behalf to protect the rest of us. (Note: I'm not trying to boast here. I've had a stateside desk job my entire career; my respect goes out to those who are actually in harm's way)

John, there are conceivably... (Below threshold)
The Listkeeper:

John, there are conceivably times in which a draft might become necessary...

But in such times, the real men will volunteer... the cowards, well...

The U.S. Constitution says ... (Below threshold)

The U.S. Constitution says whatever a majority of the U.S. Supreme Court says it says.

Sounds like you are getting... (Below threshold)

Sounds like you are getting nervous, Jay. Hehehehehehehehe

VagaBond, I'm 39 and I have... (Below threshold)

VagaBond, I'm 39 and I have half a dozen medical issues guaranteed to keep me out of the service. They'd have to find a classification below 4-F to describe my fitness for service. It's purely an abstract argument for me.


That's an intelligent comme... (Below threshold)

That's an intelligent comment, VagaBond. Hehehehehehe.

Anyway, it's pretty clear to me at least that Rangle's doing a little cynical grandstanding for the leftwienies. Ironically, I think a draft may become necessary after the surrender ceremonies are concluded in January.

Seems to me that Rangel is ... (Below threshold)

Seems to me that Rangel is botching the same joke that Kerry botched. In discussing his proposal to bring back the draft he said, among other things, that his proposal would apply to everyone, rich and poor alike, smart and notso. Is he implying that only those who study hard and do well in school don't wind up in the service? He did say that the service is for those with no other options. Great joke I guess. Those Dems keep botching it though....what the hey do they really think about our military. Should it be for the few and the proud and serve to defend us or should it be for everyone and used to shame us into surrender. I am sooooo confused with the Dems and their strong stance on our national security.

Ah...Jay Tea, good wishes o... (Below threshold)

Ah...Jay Tea, good wishes on your health.

Mark L is right. If you're ... (Below threshold)
Ric Locke:

Mark L is right. If you're a male citizen or legal resident of the United States older than 17 and younger than 35, you're already in the military -- the militia. A draft, if instituted, is just a way of handing out assignments. The clearest example of that is WWII. Everybody (to a close first approximation) felt obligated to participate; Selective Service was a method of sorting out what form that participation would take.

That being said, the military as it now stands is firmly against reinstituting an active draft. The advantages of an all-volunteer service are 'way too great for them to want to go back.

The "two years' appropriations" bit is a strawman. Signing a contract always implies some risk. If you loan money, there's the chance the borrower will die and stiff you. If you join the military there's the chance that Congress will unilaterally abrogate the contract. It has nothing to do with whether the contract is valid or not; it's only a factor in deciding whether or not to sign it.

What Section 8, clauses 12 and 13 do is make the Department of Defense unConstitutional. The Army is the posse comitatus, the Power of the Community; the Navy is the President's sidearm. Forcing the Navy to live by the Army's funding restrictions and allowing the Army to be used at whim are both violations of the intent of the Framers.


"...seems to violate the... (Below threshold)
Anon Y. Mous:

"...seems to violate the spirit, if not the letter..."

I think you have it backwards. The draft violates the letter, but not the spirit of the 13th amendment. I don't think they were trying to ban the draft when they banned slavery. If that's the case, it doesn't violate the true spirit of the amendment; it violates the letter because the 13th was poorly written.

Perhaps it's because they viewed a soldier as still a free man, with responsibilities to discharge; not as a prisoner on a chain-gang, in what could be called involuntary servitude.

It seems to me tha... (Below threshold)
It seems to me that the Constitution covers the draft.

You've got it backwards. If there's a conflict between an earlier provision and a later one, the later one prevails. So if the 13th means that the draft isn't allowed, then it repeals the sections of the Constitution you've cited.

I don't think they were trying to ban the draft when they banned slavery.

If that were the case, it would've been very easy to insert one sentence exempting the draft.






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