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.
Related Posts (on one page):
- Wall Street Journal Website Reprints My Blog Post on National Service and the Young:
- What if the the Constitution Turns out to be a Suicide Pact? - A Final Post on Forced Labor and the Thirteenth Amendment:
- Mandatory Jury Service and the Thirteenth Amendment:
- Butler v. Perry and the Constitutionality of Forced Labor Under the Thirteenth Amendment:
- The Civil War Draft and the Constitutionality of Mandatory National Service Under the Thirteenth Amendment:
- Does Mandatory "National Service" Violate the Thirteenth Amendment?
- Why Mandatory "National Service" Proposals Target the Young:
- The Threat of Forced Labor Through Mandatory "National Service":
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.
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.
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).
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.
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.
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.
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.
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."
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.
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.
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.
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.
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.
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.
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."
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.
"...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.
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.