WI The 13th Amendment Barrs Conscription in the US?

I came across a post on a legal blog discussing the understood exceptions to the 13th amendment's ban on involuntary servitude, which extends to quite a few requirements beyond the draft:
Eugene Volokh said:
Occasionally some people ask why the draft hasn’t been found to violate the Thirteenth Amendment, which provides that “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 saw this question asked a few weeks ago by a professor on a discussion list that I’m on, which is why I’m posting this now.) Why isn’t involuntary military service “involuntary servitude”? One could ask the same about involuntary jury service, or involuntary service as a witness.

I don’t want to debate here the moral, practical, or political theory questions related to the draft, or the question of how such constitutional provisions should be interpreted. But I did think it might be helpful to give the answer that the Supreme Court likely had in mind when it rejected the Thirteenth Amendment argument against the draft in The Selective Draft Law Cases (1918).

I say “likely” because the Court in those cases rejected the Thirteenth Amendment claim out of hand, without giving this argument. But two years before, the Court held in Butler v. Perry (1916)that the Thirteenth Amendment didn’t prohibit mandatory service on constructing roads, which likely seems to most of us now to be a much more unusual form of involuntary service.

(See more here)

The comments mention a few other issues involved, but I was brought to thinking whether the interpretation of the 13th amendment could be far more strict. Maybe this requires a difference in wording, or perhaps an earlier Supreme Court decision establishing a different precedent.

Regardless, if conscription is understood to be banned in the United States, how goes American war planning in the future? WWI as we know it could be butterflied away, but a conflict on a similar scale would have a very different style of American participation if warm bodies could not simply be drafted en masse for the Western Front.

Might this lead to an earlier focus on tying the state militia systems into reserves for the Army in a National Guard-style development? Or perhaps the maintenance of a British style army; a small high-quality core capable of small interventions or conflicts that preserves the cadres and experience one needs to recruit a much larger force.

In any event, if the US can only rely on volunteers, it seems likely that major wars would require a long lead-time of preparation to expand the services through good pay. It might even lead to earlier inducements to service in a GI-bill sense of long-term veteran's support.

I'll quote one comment from that blog, as it reminded me of how the Confederacy approached the war. Unlike the Union, the CSA couldn't rely on incentives to fight a near-industrial war given its poor industrial capacity. It was left to rely on increased force, drafting labor, requisitioning supplies, and so on just in order to fight, where the Union bought and traded.

douglasT said:
(originally posted here)
If it’s Constitutional to forcibly conscript the labor & life of some citizens for national defense — then it is Constitutional to draft ALL citizens for that and other government purposes.

Wars require much more than able-bodied 18–45 year-old males. The industrial/logistical support of the conscripted military forces is as critical to success as the combat forces themselves........therefore, the public need for ‘industrial conscription’ flows logically from ‘Constitutional’ acceptance of the idea of military conscription. If females, flatfoot men, the young & old are exempted from ‘military’ conscription “solely” because they are deemed unsuitable for the the rigors & danger of combat — then there is no logical reason to also exempt them from critical wartime labors in normal industry and civilian support duties — that do not involve excessive dangers & rigors (nor from peacetime labors deemed important to the nation).

If critical wartime need is full legal justification for forced labor of some able-bodied males, then wartime needs on the industrial home-front should also fully justify the forced labor of all other able-bodied citizens to that purpose.

Thus, if it’s OK to draft some citizens — it’s OK to draft all citizens for forced labor. A major war would therefore justify total mobilization (forced labor) of virtually all citizens to work at the direction of the nation’s supreme commander.

At that point, a market economy and personal freedom cease to exist.

Is that what the Constitution authorizes?

Authors & ratifiers of the Constitution could easily have inserted conscription as an enumerated power of the Federal government– its absence is not an oversight.

The Constitutional logic of military conscription faces a very steep slippery-slope — if the object of the warfare was to protect the freedom & prosperity of the citizenry in the first place.​
That sort of argument may be what establishes the precedent of conscription being involuntary servitude.
 
I think its pretty unlikely. You'd have to have a pretty activist Supreme Court (after all, conscription isn't really slavery and the 13th Amendment was passed by the same government that had just . . . conscripted a bunch of people) and you'd have to have a government that was interested in conscripting people.

the problem is, historically, that the folks who were interested in using the Supreme Court to further various political ends were also often the folks who favored centralization (and conscription). Further, its a pretty unusual Supreme Court that would try to stop a major national effort in a moment of crisis, which is the only situation where conscription is going to be an issue.

Its just barely possible you might get the ruling you want in the late 60s/early 70s, though its likely to be narrow and pretty quickly overruled.
 
I doubt WWI would suffer any butterflies because the US decides conscription is illegal.

And the thing by DouglasT bothers me as taking things far more extremely than is justified.

Sure, one could argue all of that, but there is a difference between it being specifically acceptable to draft military age males (or males and females some day?) for combat as an exception to the usual rule and "we can do this, therefore there's no check on doing anything else".

Conscription isn't forbidden by the Constitution, either - directly or indirectly. Its not mentioned, period.

I think if somehow you get people who rule it as unacceptable, and assuming the ruling isn't overturned right away, you'd see something like the first part of the ACW - which had issues.
 
I think its pretty unlikely. You'd have to have a pretty activist Supreme Court (after all, conscription isn't really slavery and the 13th Amendment was passed by the same government that had just . . . conscripted a bunch of people) and you'd have to have a government that was interested in conscripting people.

It is a pretty unlikely scenario, I readily admit. The possibility seems there given the use of federal troops in Reconstruction, and the possibility of an issue blowing up there.

Further, its a pretty unusual Supreme Court that would try to stop a major national effort in a moment of crisis, which is the only situation where conscription is going to be an issue.

Its just barely possible you might get the ruling you want in the late 60s/early 70s, though its likely to be narrow and pretty quickly overruled.
There's no doubt that the Supreme Court would be extremely likely to sidestep such cases if they come in the midst of a major war. It's more likely to stick if the amendment itself has a slightly stronger wording, and/or the ruling from the USSC comes some time after the Civil War, but before any major conflict erupts.

Perhaps something like this:

The amendment passes with stronger language, but isn't considered too important at the time. President Johnson luckily fills a couple vacancies on the Court before the final showdown with the Radicals in Congress leaves him a lame duck.

Grant gets elected after making too many ill-advised promises to the Radicals, particularly involving the management of Reconstruction. After a significantly embarrassing violent incident, it is clear that there aren't nearly enough Federal troops in the South to enforce the kind of peace and policy demanded by Congress. Lacking volunteers for such duty, Grant with the blessing of the Congress extends the service periods for those already under arms, and recalls some back to service. This is expressly designed to limit the political impact of imposing a general draft, but is still a very unpopular decision.

Unfortunately for President Grant, he is no good at picking his friends, and a massive scandal erupts that also implicates several important men in Congress. This and the growing weariness of enforcing Reconstruction leaves the federal government mostly paralyzed. The arrival of a major financial panic and recession marrs Grant's final years in office.

Initially unnoticed, a few cases rise through the appeals process from the "Reconstruction draft". The USSC grants certorati and hears the case in 1876, leading to a landmark decision.

The Court, thanks to the many distractions and increasing political weakness of Congress and the President, was left without clear guidance and argument from those branches. Thus, the implication was given that the draft in miniature was not a major concern. Turning to the particular (alternate) phrasing of the 13th amendment and its conflict with the traditional exception of military service, the Court went textual, ruling that the government did not have the power to impose or extend military service on involuntary terms. In other words, that conscription was not lawful.

This controversial ruling poured fuel on the fire of the elections, but especially dealt a blow to the Radical Republicans that believed they could ensure the freedom of former slaves and enforce Reconstruction by force of federal arms. The nearly-deadlocked Presidential election resulted ultimately in the end of Reconstruction itself in the next year.
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Might that work?
 
I would have been surprised had the Supreme Court ruled that Conscription was banned under the 13th Amendment, but it is a very arguable interpretations of the actual words of that amendment
 
I would have been surprised had the Supreme Court ruled that Conscription was banned under the 13th Amendment, but it is a very arguable interpretations of the actual words of that amendment

I think it would be pretty hard to equate involuntary servitude with conscription, just as it would be hard to suggest that taxation is involuntary servitude. With the exception of a few groups of people, ie. the Quakers, etc., military service is considered a duty to perform.
 
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