I was a veteran of four years in the Air Force and a college student when I first heard the word "Vietnam." I didn't know a thing about it except that it was a jungle guerrilla war where the French had lost their war to hang onto the country. That told me we would lose, and I paid little attention to it. My opinion on the outcome was based on the wise truism that if you are fighting guerrillas you are on the other guy's turf that they knew much better than you. If they started to lose they simply hid their weapons in thatched roofs or buried them and blended in with the farmers and peasants.
Eventually, the outsider would declare victory and go home, and the guerrillas would simply recover their weapons and resume their war against the rulers. But I was naturally aware that many young men bitterly opposed the draft, and when Nixon dropped it, I had the mistaken impression that the issue was settled permanently. Not so.
Lately stories concerning reviving the draft appeared on the net sites on my daily rounds, which surprised me. Some Google searches revealed stories going back as far as 1999 arguing against resumption of the draft, and there was a 2006 story that Representative Rangel (D-NY) said "you bet your life" he will renew his drive for a draft. Disturbingly, he said we would need a draft to challenge North Korea and Iran next. I didn't realize they were on the menu other than a few vague meanderings about what came after the current operations. But on 6 September 2007, Time magazine ran a front page story by Barry Grey that both of our political parties favored reinstituting a military draft.
A mixture of articles followed over the next few years with some making the case for a new draft and about as many extolling the fact that the All-Volunteer Force was adequately meeting our military needs. Then, in 2009, the controversy encountered a new facet.
Dr. William Babcock, an ethics professor a Southern Illinois University, reintroduced the topic of two years of mandatory civilian service for American citizens after finishing high school. Such service could include education, infrastructure repair and maintenance, construction, healthcare, military service, and the arts. This proposal follows the general argument Rahm Emanuel made in his 2006 book, as well as ideas endorsed by Mr. Obama. Cato, the Libertarian think tank, rapidly responded that, "Forced service-whether the draft for military service or labor corvee-is involuntary servitude: slavery. It is unconstitutional. The military draft may be a wartime necessity in a TOTAL WAR (emphasis mine), and we may tolerate it for that limited purpose, but that makes it no less slavery."
Actually, while Cato probably presented the current beliefs and desires of most Americans today, it conflicts with the latest ruling of the Supreme Court. Both the Union and the Confederacy practiced conscription in the War of Northern Aggression (in the eyes of the South). Roger B. Taney of Maryland, the chief justice of the United States, examined the constitutionality of the Conscription Act of 1863 following its enactment. In line with the beliefs of Jefferson and Jackson, Taney wrote a memorandum on the law that focused largely on unresolved issues of the time, the Government's right to "raise an army," and the state governments' rights to maintain a Militia. Taney reasoned that if the Federal Government could conscript soldiers, it could take the men of the states' Militias, which would violate the rights of the states. He held that, "this Act of Congress is unconstitutional and void-and confers no lawful authority on the persons appointed to execute it." While the memorandum covered the entire topic and reached an explicit conclusion, enormous race riots erupted at that time and Taney never had the opportunity to turn the memorandum into a legal ruling. The Supreme Court did not have cause to examine the constitutionality of Taney's memorandum until World War I.
Prior to World War I the government had already placed itself in a constitutionally questionable position by placing the National Guard and the National Guard Reserve which were already under the uncertain power of the Dick Act of 1903, into the service of the national government. Congress thereby converted the states' Constitutionally guaranteed self-defense forces into federal agencies.
During World War I, Joseph Aver and several fellow Minnesotans arrested for not registering for the draft, brought suit against the government. The cases of all the men were combined into one Selective Draft Law Case. They made several points but relied most heavily on two points, that the Constitution did not give Congress the power to draft, which is true, and the claim that the draft was a form of involuntary servitude since the men lacked the liberty to determine their own way of life, which was forbidden by the Thirteenth Amendment.
Chief Justice Edward White wrote up the case in a manner that suggested he was impaired in several respects. He quoted portions of Article I, Section 8, that said Congress had the power to declare war, to raise and support armies, and to make rules regulating land and naval forces. There does not appear any way to construe this to allow a draft. Justice White also added the Necessary and Proper Clause at the end of Article I, Section 8. This clause states that Congress can make laws which are necessary and proper to carry out powers already listed and all other powers granted by the Constitution. Examining the powers already listed reveal only two phrases that could possibly prove relevant but in fact grant no specific power concerning a draft. Pertinent phrases include a statement that Congress can raise money by certain means to provide for the common defense and general welfare of the United States. To a reasonable person, providing for the common defense does not necessarily include a draft. Another phrase grants the power to raise and support armies, and another grants the power to make rules for the governance and regulation of the naval and land forces. There are several other phrases relating to the uses of the militias. Absolutely nothing in Article I, Section 8 can possibly be construed to permit a draft. This whole argument based on Article I, Section 8, is meaningless, irrelevant, and totally lacking in any manner any justification for a draft.
White also rejected the defendants' claim of constitutional protection by stating that it's not logical for Congress to grant the power to raise an army without providing a way to staff it. This argument is ludicrous because armies always have the power to enlist volunteers. White also made the incredible claim that since other governments around the world allowed conscription, the United States must also. White also tortured logic by claiming that since the British government had absolute authority over its subjects in the home islands, the Constitution must grant the same power to Congress. White also claimed that during the Revolution nine states had conscription laws. But these laws were only operable at the state level and serving in a state militia fulfilled any requirement to serve the Federal government, plus men could buy their way out of service.
Another irrational attempt by White to justify a national draft was the assertion that Massachusetts law prevented any servicemen from being court-martialed unless they are were on active duty during peacetime. The connection to a national draft seems a little obscure. White also referred to the Virginia law that the state militia is the proper defense for a free state, that it is bad practice to maintain standing armies in time of peace, and that the military is subordinate to civil power. White also noted that the states did not always provide the number of men requested by the Federal government. While true, how does this translate into a right of the Federal government to conscript anyone? He also points out correctly that James Monroe, while Secretary of War during the War of 1812, called for the conscription of men. But Congress rejected Monroe's request on the grounds that conscription went against the principles of a free nation.
The strongest point of the defense referred to the Thirteenth Amendment to the Constitution. The Thirteenth Amendment states that neither slavery nor involuntary servitude, unless as punishment for committing a crime, shall exist within the United States, or any place subject to its jurisdiction. The specific reference to involuntary servitude would seem to clearly prohibit a draft. Clear, that is, except to Justice White, who dismissed it out of hand. He could see no connection between "involuntary servitude" and forced military service. He claimed that the Thirteenth Amendment was intended to prohibit slavery. And so it does with the statement that "neither slavery...shall exist within the United States." That seems so clear that nothing else is needed to make the elimination of slavery absolute. Then it addresses another but separate issue by stating "neither...nor involuntary servitude (except for a crime) shall exist within the United States (parentheses mine)." The Thirteenth Amendment clearly prohibits TWO things; 1. Slavery. 2. Involuntary servitude (of innocent men).
The entire court agreed with White that the men were guilty of all counts, including refusing a legal requirement to serve in the military. That finding has not been challenged legally to this day. But it is clearly wrong because of the dual prohibitions of slavery and unwilling service specified in the Thirteenth Amendment, and "compulsory" service has been characterized as slavery or its equivalent by everybody from Mahatma Gandhi to Albert Einstein to Milton Friedman (Examiner, July 12, 2010). It's time for the country to face up to the illegality of the draft, or any involuntary public service, and make the necessary amendments to the Constitution clearly stating that a forced draft of any kind is contrary to the Constitution.
