The Draft and the Thirteenth Amendment

While strolling through news sources today I couldn’t help but notice the New York Times column calling for people in my age bracket to be conscripted. Author Thomas Riggs puts forth his case as to why we need to re-institute the draft and some methods for doing so. Like many who have called for a draft in recent years, he uses that same concept of “building citizenship” and “shared sacrifice” ideas advocated by those who see the military as a sacrosanct institution. Taking some pointers from some of the “anti-war” draft promoters he even mentions that this would be a good driving force against war (because that obviously worked really well last time [eye roll]).

Too libertarian for being shackled into either military or “civil service” jobs? Don’t worry — you can opt out. Riggs writes:

…libertarians who object to a draft could opt out. Those who declined to help Uncle Sam would in return pledge to ask nothing from him — no Medicare, no subsidized college loans and no mortgage guarantees. Those who want minimal government can have it.

That part actually sounds good — but only if that means I get to keep my taxes that pay for these services as well. It only seems fair that if I ask nothing from Uncle Sam, then Uncle Same should ask nothing of me, but of course Riggs doesn’t even hint at this compromise.

With all this talk the a new draft hitting the New York Times it raises a question that I’ve had ever since my Constitutional Law classes in college. What about the Thirteenth Amendment? Just so we’re clear on what it says, the full text of the amendment is:

Amendment XIII

Section 1. 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.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

You see, it’s that whole “involuntary servitude” language that tells me that the draft is, besides being immoral, simply unconstitutional. The draft is nothing more than forcing through legal statute individuals into service. As we all know, the draft is not optional once instituted — just ask Muhammad Ali, who lost the heavyweight championship because he refused to be drafted. He famously stated:

No, I am not going 10,000 miles to help murder, kill, and burn other people to simply help continue the domination of white slavemasters over dark people the world over. This is the day and age when such evil injustice must come to an end.

His case was over turned by the Supreme Court not because of the Thirteenth Amendment, but because of a supposed “technical error.”

So, has anyone ever challenged the draft on Thirteenth Amendment grounds? The answer is yes, but it was buried in the history books. In 1918 in the Selective Draft Law Cases the defendants did use the Thirteenth as part of their defense, though it was far from the most prominent point pushed. When discussing this claim that the draft violates constitutional protects from involuntary servitude, the court has only this to say:

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 that’s it — basically, if you don’t like being threatened with jail time, fines, or if you refuse and resist the first two options then death, too bad, buddy. Strap on that helmet, grab your fatigues, and join up.  It’s your “supreme and noble duty.”

This letter from Cecil Adams pretty much sums it up. No court has ever taken the argument seriously enough to even warrant more than just a paragraph dismissing it as inconceivable. So should a draft be instituted, perhaps some the suggestions that Adams put forward could be useful, especially since no war has been officially declared since World War II. I would also point to liberty activist Daniel Lakemacher, who successfully argued a conscientious objector classification using the Non-Agression Principle.

With Canada no longer protecting people who have fled from military service following the 2003 invasion of Iraq, there are really few options should the draft return. Liberty lover across the country will have to continue to fight against people like Riggs who think that people are nothing more than unused labor waiting for the government to put them to work. To me it seems that this is our only legal recourse.

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