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The Civil War Draft and the Constitutionality of Mandatory National Service Under the Thirteenth Amendment:

It is sometimes argued that the Thirteenth Amendment couldn't possibly have banned mandatory national service because the Union had had a draft during the Civil War (which ended a few months before the Amendment was enacted).

There are four problems with this common argument:

First, it is the text of the Constitution which is the law, not the subjective intentions of the drafters. In my view, evidence of original intent or original meaning is relevant only in cases where the text is unclear or where the words used had different standard definitions at the time than they do today. For reasons I explained in my previous post, the Thirteenth Amendment is in fact very clear. And the term "involuntary servitude" did not have a significantly different meaning in 19th century usage than today.

Second, even from an originalist (as opposed to textualist) standpoint, the existence of the draft in the period right before the Amendment was enacted actually strengthens the case for assuming that it wasn't excluded from the ban on involuntary servitude. After all, the framers of the amendment were sufficiently aware of the breadth of the Amendment's language to provide a specific exception for involuntary servitude imposed "as a punishment for crime." The use of forced labor as punishment for a crime was far more common in American history than its use in the draft (which had never been done prior to the Civil War). If even this deeply rooted practice required a specific exemption to prevent it from being banned by the Amendment, the same applies to the draft. The drafters and ratifiers of the Amendment were well aware of the draft, because it had been a highly controversial political issue just a few months earlier. In addition, they were surely aware that the constitutionality of the draft was hotly contested even under the pre-Civil War Constitution, with many northern Democrats claiming that it exceeded Congress' enumerated powers. Given this background, if the framers genuinely sought to protect the constitutionality of the draft, they would probably have created a specific exemption for it similar to the exemption for the use of forced labor as criminal punishment. Yet they clearly did not do so.

Third, the Civil War draft was very different from its modern successors. It was created as a temporary emergency measure to meet an unprecedented military crisis, not a permanent institution. That crisis was brought on by slavery - the very practice that the Thirteenth Amendment abolished (along with "involuntary servitude"). It would not be unreasonable for the framers to assume that, with the abolition of slavery, the nation would no longer need a draft to mantain its security (just as it did not need one to deal with the many wars we fought prior to the Civil War). Moreover, the Civil War draft was far less coercive than modern national service proposals. Draftees could get out of their obligations by providing a substitute recruit or by paying a $300 fee (many northern communities, including New York City, used public funds to pay the commutation fees of draftees who did not wish to serve, but were too poor to come up with the $300 themselves). Thus, even if a Civil War-style draft is permissible under the Thirteenth Amendment, it does not follow that a truly mandatory draft or national service program would be.

Finally, even if the Civil War precedent proves that a military draft is constitutional, it does not follow that mandatory civilian national service would be. Most modern national service proposals include both civilian and military options, and their political viability might be greatly diminished if civilian service were excluded.

Justin JJ (mail):
You keep talking about 'national service' as if it were a serious policy proposal. While I'm sympathetic to the argument that its continued deployment serves somewhat to normalize the idea, I have yet to see it mentioned except as a political ploy. I hadn't heard serious proposals about it prior to the Iraq War, and since then it seemed largely a device for accusations of chickenhawkery.

What portion of these proposals are serious vs. rhetorical positioning?
9.24.2007 11:30pm
Ilya Somin:
What portion of these proposals are serious vs. rhetorical positioning?

It's hard to say for sure. But people like McCain, Bill Buckley, and (I think) the DLC advocated mandatory national service since long before 9/11 (much less the Iraq War), so it is clear that their is signficant support for the policy that goes beyond posturing over the Iraq War.
9.24.2007 11:46pm
Eli Rabett (www):
This argument is best viewed from the standpoint of countries that do have national service.
9.25.2007 12:07am
jim:
I elucidate my arguments to most of these points - especially the subjective intentions point - in the previous thread (and agree with your last piont there), so I'll address only the argument about the form of the draft.

I don't think the ability to get out of the draft by finding someone else or by paying $300 changes the character of the draft with respect to it being involuntary servitude. Finding someone else to go is similarly a form of service. The ability to pay money can't be the legitimate escape hatch either, since there was no power in the federal government to randomly assign a $300 tax directly to individuals.

A more interesting argument about the form of the draft might be to note that the actual impressment was generally done by the state, or a division of a state, which had a certain quota to fill. There were state militias, but not a federal militia, so perhaps the federal government lacked the power to directly draft its citizens. That's a relevant point because the later 14th amendment removes a class of powers states formerly weilded over their citizens but which the federal government did not wield over its citizens.
9.25.2007 12:29am
Bill Poser (mail) (www):
I'm curious about the assumption in Arver that a citizen has a moral obligation to serve when Congress declares war. There may be a moral obligation to participate in defense of one's country, but has there really ever been any sort of consensus that one has a moral obligation to participate in wars of aggression? This seems to me to be additional evidence of the lack of real analysis and argument by the Arver court.
9.25.2007 12:31am
Ilya Somin:
I don't think the ability to get out of the draft by finding someone else or by paying $300 changes the character of the draft with respect to it being involuntary servitude. Finding someone else to go is similarly a form of service. The ability to pay money can't be the legitimate escape hatch either, since there was no power in the federal government to randomly assign a $300 tax directly to individuals.

The option of paying $300 turns it into a tax with an option to pay in-kind (through labor) rather than a straight forced labor system. Whether Congress, pre-17th Amendment, had a power to impose a $300 head tax on all male citizens of draft age is a difficult question. But the answer might well be yes, since the only restriction on the power to tax was the requirement that it be apportioned among the states in proportion to population (a requirement the $300 tax roughly met because the proportion of the nation's draftable males in a given state was roughly similar to its proportion of the nation's population as a whole).
9.25.2007 12:51am
jim:
I concede that the system may not have ran afoul of the apportionment limitation — though we'd have to look up if the quotas given to the states matched the constitutional formula.

My first (and lesser) objection is whether the government may tax at random.

The second objection is that of pretext. In leveling the tax, the government would have to be pursuing a legitimate end. Collecting revenue is a legitimate end, blackmailing someone into giving up a constitutional right is not.
9.25.2007 1:02am
Ilya Somin:
My first (and lesser) objection is whether the government may tax at random.

I don't think it was random. It targeted male citizens of a certain age.


The second objection is that of pretext. In leveling the tax, the government would have to be pursuing a legitimate end. Collecting revenue is a legitimate end, blackmailing someone into giving up a constitutional right is not.

Remember that protection against forced labor was not (yet) at constitutional right. And the purpose was winning a war - a legitimate objective under Congress' powers under Article I, even under a fairly narrow interpretation thereof.
9.25.2007 1:09am
jim:

I don't think it was random. It targeted male citizens of a certain age.


IIRC, it didn't target every male citizen of a certain age group, it targeted a randomly chosen subset drawn from the set of male citizens of that certain age group.

If the Federal Government sent out scratch-offs that randomly added or subtracted 50% from your tax burden I would challenge the constitutionality of that too.


Remember that protection against forced labor was not (yet) at constitutional right.


I have been unclear. I was responding to your statement that "even if a Civil War-style draft is permissible under the Thirteenth Amendment, it does not follow that a truly mandatory draft or national service program would be." I am disputing that the Civil War draft is less vulnerable to constitutional challenge than the more recent drafts by virtue of having the $300 escape hole because the same power that validates levying a tax for the purpose of impressment also validates impressment without the tax.
9.25.2007 1:26am
jim:

the purpose was winning a war


One last point, this strikes me as abstracting at too high a level. The more specific purpose was conscription, just as Civil War speech crackdowns were assigned the level of abstraction of "limiting dissent" not of "winning the war."
9.25.2007 1:29am
Allan:
I don't mind national service. But, I guess some do, viewing it as "slavery" or "forced labor." In my view, it is a national obligation, a precursor to being a citizen.

But, we cannot make being a citizen dependent on national services. But we can do something about taxes...

Let's say that everyone who serves in the military will an effective tax rate 2/3% less than the standard rate (no matter what the rate is). Everyone who does non-military service gets 1/3% tax cut per year, for up to three years.

This applies ONLY those if a person begins service at 21 or younger.

The tax reductions would be for life.

Simple. Payout costs little initially. It may cost some in the future, but, according to the conservatives, with a lower tax rate, it will spur the economy.

Win/win.
9.25.2007 1:36am
Ilya Somin:
the purpose was winning a war



One last point, this strikes me as abstracting at too high a level. The more specific purpose was conscription, just as Civil War speech crackdowns were assigned the level of abstraction of "limiting dissent" not of "winning the war."


Yes, but speech crackdowns violate a constitutional right that restricts a particular means regardless of the ends it pursues. There was no such parallel constituitonal right against forced labor prior to the 13th Amendment.
9.25.2007 1:40am
Cornellian (mail):
First, it is the text of the Constitution which is the law, not the subjective intentions of the drafters.

I have made this point over and over and over on this blog until my fingerprints have worn off my fingers from all the typing. Far, far too many people who claim to be originalists think that originalism is some kind of seance in which you try channeling the drafters in the spirit world and divine what was on their minds when they proposed the text of the statute. Kozinski put it well when he said Congress enacts statutes, not intentions. The same applies to constitutions.
9.25.2007 1:47am
jim:

There was no such parallel constituitonal right against forced labor prior to the 13th Amendment.


Again, this is directed at your proposed distinction that the Civil War draft may have been constitutional after the 13th amendment while a modern draft clearly is not.

And I would dispute, at least in part, your assertion that the freedom of speech is primarily a restriction of means. The state can restrict speech for some ends — preventing libel, obscenity, immanent physical harm. The first amendment might just as easily be read as a statement about the distribution of powers between the People and the Federal republic on the basis of ends. In other words, the alteration of the natural state of discourse between the People is not a legitimate government end.
9.25.2007 2:16am
TerrencePhilip:
It's an interesting theory in a mess-with-the-law-student's-mind kind of way, but if it's an example of your style of interpretation- mechanical application of text while blinding yourself to even the most obvious context and purpose of the enactment- you will win few converts. What next- does the 13th amendment outlaw roadside field sobriety tests and DUI breath tests?

This kind of literalism seems dangerously misguided. One of the reasons Senator Craig's (postconviction) attack on his arrest failed, is that the provision of the constitution he relied upon was designed to prevent, and has always been understood to prevent, arrest of Congresscritters in civil cases only. Looking at the clause your way, if Senator Craig had robbed a bank on live TV while on his way to vote, how could he be arrested?

Everyone understood at enactment what the 13th Amendment was designed to do. Most likely none, or very few, even imagined at its enactment that an argument like yours would be made under it. The claim that the analysis should start and stop with the ability to cram a challenged practice within its literal terms, is unlikely to be taken seriously by any court.
9.25.2007 2:16am
Perseus (mail):
Obvious question: Doesn't jury duty also constitute "involuntary servitude"?
9.25.2007 2:32am
jim:

I have made this point over and over and over on this blog until my fingerprints have worn off my fingers from all the typing. Far, far too many people who claim to be originalists think that originalism is some kind of seance in which you try channeling the drafters in the spirit world and divine what was on their minds when they proposed the text of the statute. Kozinski put it well when he said Congress enacts statutes, not intentions. The same applies to constitutions.


More apropos, I think, is a contract. You are clearly not bound by the secret intentions I had in drafting the contract language, and neither of us is guarenteed that fulfilling the terms of the contract will have the expected effects we hope for, but neither can we be bound by a reading of the terms of the contract that neither of us contemplated at signing.
9.25.2007 3:25am
肿瘤 (mail):
9.25.2007 4:38am
Cornellian (mail):
I think, is a contract. You are clearly not bound by the secret intentions I had in drafting the contract language, and neither of us is guarenteed that fulfilling the terms of the contract will have the expected effects we hope for

Sort of reminds me of that old computer science principle "computers do what you tell them to do - not what you want them to do."
9.25.2007 6:09am
David M. Nieporent (www):
Everyone understood at enactment what the 13th Amendment was designed to do. Most likely none, or very few, even imagined at its enactment that an argument like yours would be made under it. The claim that the analysis should start and stop with the ability to cram a challenged practice within its literal terms, is unlikely to be taken seriously by any court.
I'm aware of the various flavors of originalism approach to constitutional interpretation. I'm not aware of the "most likely people didn't interpret it that way" approach, however.
9.25.2007 7:32am
RKV (mail):
You might want to evaluate how the founders treated militia service in the early Republic as a means to expand on how they viewed the duty of citizens to serve in the military. The Militia Act of 1792 provided that (with very limited exceptions) all male citizens ages 17-45 were members of the militia. It also required all militia members to own a rifle or musket suitable for military service, ammunition, etc. Current law under 10USC311 is essentially the same in terms of providing a legal definition of the militia. Article 1 Section 8 allows Congress to "call[ing] forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions."

Seems pretty clear to me that the Congress has the right to compel military service (at least in militias) for the three purposes listed in Article 1 Section 8 when evaluated in light of the laws and practices of the founding generation. Those purposes don't include any service which would cause the citizen to leave the US, nor do they allow the Congress to draft citizens for other purposes - at least if you think that the words used in the Constitution have specific meaning and that our government should limited by the same.
9.25.2007 10:48am
DCraig:
Yes, but the militia act and Art. 1 Sec 8. were written before we had things like a federalized national guard and standing armies, which were within Congress' enuumerated powers.
"...the existence of the draft in the period right before the Amendment was enacted actually strengthens the case for assuming that it wasn't excluded from the ban on involuntary servitude."
I'm a little concerned on this logic. I would argue that the example proves just the opposite and that the framers of the amendment were sufficiently aware of their language to include a provision including a selctive service system if they thought it to be involuntary servitude.
9.25.2007 11:15am
RKV (mail):
If the 13th Amendment changed the powers of the Congress to (at a minimum) call citizens to military service in militias, then it would have had to change other parts of the Constitution (i.e. Article 1 Section 8). It didn't. Neither did contemporary legislation change the Militia Act of 1792 (until the 1903 Dick Act).
9.25.2007 11:39am
Eli Rabett (www):
how about the debate in the Congress and the state legislatures set forth the purposes of the 13th amendment and outlawing a draft or national service was not one of them
9.25.2007 12:03pm
Dave Hardy (mail) (www):
As pointed out, the draft was not the first form of compulsory military service: the original form was the militia. On the other hand, the constitution expressly limits the purposes for which it could be called out (limited not only to military service, but domestic military service, which is why the modern Guard is organized under the Army Clause, not the Militia Clause).

As I recall from some 13th amendment research, there were at common law certain duties to serve the public as a civilian, but they were narrowly limited. I recall a community obligation to maintain public roads and bridges, to respond to a hue and cry after a crime, and a few others.
9.26.2007 3:26pm