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:
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.
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.
That sort of argument may be what establishes the precedent of conscription being involuntary servitude.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.