US Supreme Court rules the draft as unconstitutional?

I'm not sure if this is better suited to Before or After 1900, but here we go. What is the most likely time period that the draft can be ruled as unconstitutional by a Supreme Court Case and what effect would it have on the Civil War (if it's before that), WWII, and Vietnam?

I appreciate any input.
 
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The main constitutional argument against the draft is with the 13th amendment (abolishing slavery/involuntary servitude.) So it's really unclear to me how you could possibly get it ruled as unconstitutional *before* the civil war.
 
Any ruling in this manner will quickly turned void if anything happens near the homefront. Cue that an amendment will follow that explicitly states that any able-bodied man can be drafted. Can, not have to.
 
The main constitutional argument against the draft is with the 13th amendment (abolishing slavery/involuntary servitude.) So it's really unclear to me how you could possibly get it ruled as unconstitutional *before* the civil war.

Ok, so what about after it? People could use it right after the Civil War to get out of the draft, couldn't they?
 
Given the unanimity of the Supreme Court's decision in *Butler v. Perry* (1916)--which, one should note, was *before* the introduction of the World War I draft, or the US entering the war--I can't see how you could plausibly get a Supreme Court that decided such a thing without American history already having been very different. (The Court held in *Butler* that "This [13th] Amendment was adopted with reference to conditions existing since the foundation of our government, and the term 'involuntary servitude' was intended to cover those forms of compulsory labor akin to African slavery which, in practical operation, would tend to produce like undesirable results. [SIZE=-1][240 U.S. 328, 333] [/SIZE]It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state, such as services in the army, militia, on the jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers." http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=240&invol=328)
 
Perhaps, under the right circumstances, Justice Joseph Story could lead the court in that direction (at least regarding a peacetime draft).

On the Second Amendment Story wrote:
The militia is the natural defence [sic] of a free country against sudden foreign invasions domestic insurrections and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace both from the enormous expenses with which they are attended and the facile means which they afford to ambitious and unprincipled rulers to subvert the government or trample upon the rights of the people. (from Wikipedia)
 
Perhaps, under the right circumstances, Justice Joseph Story could lead the court in that direction (at least regarding a peacetime draft).

On the Second Amendment Story wrote:
The militia is the natural defence [sic] of a free country against sudden foreign invasions domestic insurrections and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace both from the enormous expenses with which they are attended and the facile means which they afford to ambitious and unprincipled rulers to subvert the government or trample upon the rights of the people. (from Wikipedia)

As Hamilton points out in Federalist No. 24, even the Articles of Confederation did not contain a ban on standing armies, nor did the state constitutions: "Pennsylvania and North Carolina are the two which contain the interdiction in these words: 'As standing armies in time of peace are dangerous to liberty, THEY OUGHT NOT to be kept up.' This is, in truth, rather a CAUTION than a PROHIBITION. New Hampshire, Massachusetts, Delaware, and Maryland have, in each of their bills of rights, a clause to this effect: 'Standing armies are dangerous to liberty, and ought not to be raised or kept up WITHOUT THE CONSENT OF THE LEGISLATURE'; which is a formal admission of the authority of the Legislature. New York has no bills of rights, and her constitution says not a word about the matter. No bills of rights appear annexed to the constitutions of the other States, except the foregoing, and their constitutions are equally silent. I am told, however that one or two States have bills of rights which do not appear in this collection; but that those also recognize the right of the legislative authority in this respect." http://avalon.law.yale.edu/18th_century/fed24.asp#1

Story's discussion is simply in the tradition of warning about the dangers of standing armies (and the utility of militias in avoiding them) which is far different from an actual ban. It is most unlikely that someone as nationalist as Story (and the Marshall Court) would want to risk the nation's security with any such prohibition. This is especially so, since the Constitution specifically gives Congress the power "To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years..."
 

TFSmith121

Banned
Short answer? Never

I'm not sure if this is better suited to Before or After 1900, but here we go. What is the most likely time period that the draft can be ruled as unconstitutional by a Supreme Court Case and what effect would it have on the Civil War (if it's before that), WWII, and Vietnam?

I appreciate any input.

Funny, May 8 is a pretty significant anniversary in terms of this question; since passage of the Militia Act of 1782, there has been both legal precedent and political consensus that the Executive Branch, acting in the role of commander-in-chief, has the legal authority and indeed responsibility to require military service by citizens in the event of war or national emergency.

Considering what led to the passage of the 1782 Act, not really surprising.

As has been said, the Constitution is not a suicide pact, and the ability to mobilize the nation's resources in time of war or otherwise is a necessary power for all nation states, democratic or otherwise.

In the final analysis, there's also the Jacksonan position - if the Supreme Court were so foolish as to rule in such a manner, the Court can also attempt to enforce said ruling...

Best,
 
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