Is That Legal? – Rangel And The Draft
MichaelW on Nov 20 2006 at 4:10 pm | Filed under: Domestic Politics, Law, Libertarianism, MichaelW's Page
In an apparent fit of irony, the Rep. Charlie Rangel (D-NY) is re-introducing legislation on conscription:
Americans would have to sign up for a new military draft after turning 18 under a bill the incoming chairman of the House Ways and Means Committee says he will introduce next year.
“There’s no question in my mind that this president and this administration would never have invaded
Iraq, especially on the flimsy evidence that was presented to the Congress, if indeed we had a draft and members of Congress and the administration thought that their kids from their communities would be placed in harm’s way,” Rangel said.
Right off, the cynical use of this legislation is the equivalent of Charlie Rangel holding a gun to your kid’s head and saying “govern my way or else.” Rangel admits as much. Nevermind the fact that, because we have an all-volunteer force, parents don’t make these sorts of decisions for their children, but instead young adults make the choice to join the service on their own. And further ignore the fact that the various socioeconomic classes are represented about the same in the civilian and military populations, as opposed to the trope upon which Rangel relies (and perhaps, Sen. John Kerry believes) — i.e. that it is the poor and stupid who join the military. Indeed, why let little things like “facts” get in the way of exercising that Congressional muscle, especially when (as Rangel sees it) you can hold American sons and daughters ransom in an effort to exact your own political will? How very “democratic” of you, Rep. Rangel. In a word, you are pathetic.
The more academic question about the draft is whether or not it is even legal. The Thirteenth Amendment states:
1. 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.
The plain meaning of the language expressly forbids conscription, which cannot reasonably be understood as anything other than “involuntary servitude.” However, in 1918 the Supreme Court disagreed, rather tersely, in the last paragraph of its decision in Arver v. United States:
Finally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation as the result of a war declared by the great representative body of the people can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement.
The passage above is the Supreme Court’s sole statement on the Thirteenth Amendment and the draft. Aside from the appalling arrogance and dismissive nature of the statement, the Court offers zero legal analysis. Essentially, the legal reasoning supporting the idea that conscription is not violative of the Constitution rests entirely upon the Supreme Court’s brilliant parental edict “because we said so.”
So there you have it. A politician can threaten Americans with death in order to force other politicians to do his will, and the legality of that act is protected by the arrogant indifference of the highest court in the land.
To be sure, I really don’t expect Rangel’s bill to get much traction, and I am fairly confident that the current Supreme Court would visit the issue with a bit more respect for the law. However, I can’t help but see the matter as yet another reason to doubt the seriousness of Congress, nor can I think of a clearer display of the contempt its members must hold for the rest of us. The foundations of democracy were formed from the idea that the People should not be used as pawns in the elaborate games of the elite. And yet, we are now faced with the one of the most senior congressman doing just that. Oh how far we have come …
Technorati Tags: U.S. Constitution, Thirteenth Amendment, conscription, draft, Rep. Charles Rangel, Arver v. United States, libertarianism
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Let me get this straight. The most massive war in the country’s history takes place. The North conscripts hundreds of thousands. And now you think an amendment only possible because of massive conscription outlawed the very tool that allowed it to be implemented?
Seems the arrogance of the Court (with men on it who remembered the War and the passage of the amendments in their lifetime), got it wrong? Involuntary servitude itself appears to be a term of art, not including the draft.
I’m sure the legislative history is repleat with comments, like “boy not only is slavery outlawed but we’ve fixed those pesky Draft Riots for good!”
I don’t know if it was “only possible” because of conscription, but essentially, “yes.”
OK. Show me where.
OK, again, show me where.
It seems like these would have been interesting questions for the Court to answer. Seeing as how it’s their job and all.
jjv,
I have to agree with Michael. Maybe there are good reasons to believe the draft would not have been unconstitutional, but it would be nice if the court had bothered to let us know what they are.
In fact, I think it would have been a Constitutionally open question before that. The founders were deeply suspicious as a whole to the idea of volunteer standing armies, most would have been apoplectic at the idea of a drafted one.
Nor would the idea of a draft probably have occurred without a civil war when all kinds of long standing ideas about what our government was legally able to do were thrown aside as the country was split. I am not criticizing the decisions of the Lincoln administration, but they were made under an incredibly unique set of circumstances where the courts were ignored to a large extent.
I direct attention to UNITED STATES v.KOZMINSKI et al. 487 U.S. 931 (1988) in which the Court emphasized that the definitions of involuntary servitude would be legislative, not judicially determined. There is also a rollicking impassioned 13th amendment opinion at Brooks v. Central Bank of Birmingham.1982 Westlaw 365(D.Ala. 1982) but even there the court notes that exception to involuntary servitude like conscription have always been recognized. In addtion, others have raised 13th amendment objections to child support payments.
The fact is if the people want a draft they can have one, and if not, not. We have never Constitutionally prohibited it. It would be a criminal usurpation of the worst sort if during war time a court determined to take the draft from the aresenal of democracy. I do not think we need one now and that Rangel is venal, foolish and destructive. Judicial rulings that choose for a free people how it will defend itself are worse.
Obviously this works you up, so I’ll keep it brief.
Michael asks a perfectly good question. It is a question, not an answer.
I’ll let him take on whether he thinks the legal precedents you cite influence what he thinks the answer is (he is the lawyer) but do think it is an odd statement to say that the draft can be characterized as expressing the will of a free people, given that it is a people’s freedom that is being taken away. A free people so inclined could certainly volunteer in the numbers necessary.
Thanks for the links, jjv. I’ll check them out.
In the meantime, however, it may be true that “if people want a draft they can have one” but I don’t believe that sentiment can fairly be attributed to nation ruled by law. If the law says no “involuntary servitude” people should be able to rely upon that proscription meaning what it says. By that same token, of course, I would expect that Congress would be limited to its actual powers as enumerated in Article I, and most especially those powers concerning “interstate commerce.”
The fact remains that courts can and will do what they please when it comes to certain issues, but I don’t think that we should simply abdicate that ground. Forcing the Court to at least tell us why “involuntary servitude” should be restricted to only those activities resembling antebellum slavery would at least preserve the appearance of a body politic that is ruled by law.
Since we all have Milton Friedman on our mind these days (uh, we all do don’t we?) I thought this classic exchange might fit in this discussion:
It doesn’t answer the legal question, but it sure frames the moral one.
I don’t think the constitution is a libertarian document. I am very leary constitutional arguments based on Constitutional commands (rather than good policy which I often think they are).
In this instance, unless you are willing to deny people the right to vote if they don’t serve or some other Heinlenesque proposal the freedrider problem is insupportable.
I think it is worth discussing that the times of a draft in this country, particularly WWII and the 50’s are looked upon as the good old days. The end of the draft in the 70’s and its rejection by the 60’s generation as part of general societal decay.
I actually think the draft is a bad idea but am having a hard time concieving of a constitutional argument (other than the textual one made without regard to the 13th amendment’s history)that can explain why Congress divested itself of the power to conscript armies without discussing the matter.
I’ll agree with you there, libertarians, including civil libertarians are often guilty of reading more into the Constitution than is warranted.
Nevertheless, I don’t think the matter can be settled so easily. It is an historical fact that many felt the Constitution at its signing was incompatible with large standing armies of any type. Hamilton’s modest efforts to establish a small one was one of the many reasons he lost influence towards the end of his life.
Nor is the textual argument to be easily dismissed. While I am not a strict textualist, the text matters a great deal. The fact that an important moral and legal standard was set down in our Constitution, even if the signers had not considered all of its implications, should not easily be set aside. In fact, much of Lincoln’s views on slavery were informed by just such a realization.
The Constitution was set up when few would have considered a draft a possibility, but impressment, quartering of troops and other ways that the military could force itself upon the populace was an issue. We know how they felt about that, and I don’t see why they would have considered a draft any different than impressment. Possibly they would have, but it seems unlikely.
The fourth amendment against unreasonable search and seizure is an interesting example of how the text should not be so easily limited. There was obviously little reason for the convention to consider alternatives to physically searching a house that are very available to the authorities today. While it is debatable to what extent the fourth amendment should be extended to wiretapping, listening devices, etc., I think it would be odd to claim it has no bearing.
I am not claiming such things are perfectly analogous, but some principles, regardless of the intentions of the authors, cannot be waived away. So, for example, forcing people to work for the government, even while being paid, to build roads and other things outside of wartime would undoubtedly be challenged on many grounds including the 13th. In fact I am pretty sure the 13th would hold as having forbidden such a thing though the 13th was not put in place to deal with such an eventuality as far as I know. Obviously in the one direct case it did not apply to actual soldiers. Legally I find that pretty dubious.
To put it simply, the text matters, whatever the authors intended. It may not be the final word, but it does have to be addressed.
Not to mention the fact that we’re still working on fulfilling the promise of the 14th Amendment, with numerous interventions by the legislatures and differing interpretations by the courts, so I don’t really see what’s so surprising about the fact that the 13th isn’t settled yet. It’s perfectly legitimate for the courts to change what has always been if what has always been is wrong.
yours/
peter.
[...] Charlie Rangel is trying to reinstate the draft. But is the draft constitutional? A Second Hand Conjecture argues that it isn’t. [...]
Michael & JJV: nice meeting both of y’all last week. As to the issue at hand, I think we could all have been spared a great deal of confusion if the court, rather than writing the brief, conclusory crap that it did, had written something more like this, instead:
Problem solved.
Maybe so Xrlq, but I don’t like it which is beacuse we libertarians and Republicans are:
Patterico even cites her! We are unreasonable, inexperienced cloistered geeks. Or so say Kevin Drum. So we won’t accept your logic or expertise. Fingers are firmly planted in our ears.
Interestingly, here is now Senator Jim Webb arguing for the draft in 1980 in the Atlantic (today on RCP):
A draft would remedy this and other shortfalls, not merely by offering up more manpower and a less delicate command environment, as opponents of the draft so often maintain, but by causing a much-needed reorientation of priorities. The military is not a job, any more than paying taxes is a job. In fact, military service might be equated to a tax. We each surrender a portion of our income to the common good, and we should all be willing to give a portion of our lives in order to assure that our freedoms will not disappear. It is so very basic, and yet so much maligned in the cynical wake of Vietnam: conscription is not slavery, it is societal duty.
and we should all be willing to give a portion of our lives in order to assure that our freedoms will not disappear.
You’re confusing two different things. The conjecture that we should all be willing to give to the poor doesn’t mean street winos should be able to break into your house and take your stuff. Your argument that we should submit to coerced servitude—give up a portion of our short, irreplacable lives under threat of prison— in order to preserve freedom is galling.
yours/
peter.
Peter, I dont think jjv is advocating a draft, he’s merely disputing that it is unconstitutional. The argument you objected to here was from Jim Webb, and (while I could be wrong) I don’t think jjv was advocating it, just offering it up as one defense.
Peter,
Since the quote was from Webb, I don’t think we should assume that is jjv’s position.
That being said, I agree. I might modify that in extremis, but my guess is that in such a situation volunteers would not be hard to come by anyway.
Ooops, Chris beat me to it. By the way jjv, it is nice to see you here. I have always enjoyed your comments at Xrlq’s place. I would be interested in your responses to other posts as well. Including ancient one’s. With comment subscription we can all get things started up again on some dusty old post. Always great fun;^)
Oh and Pete, good to have you around again given how inconsiderately scarce you have been the last two months. I expect a high quality comment on every post since Labor day as penance. Scurry on, we are waiting.
You are correct that Webb’s view is not mine but I thought it interesting that he was arguing against that point of view a quarter of a century ago. Also, he was wrong in that article in that within a year Reagan came in, raised pay and began treating the military with respect. Enlistments soared. I just spoke to a Marine Corp officer who is proud to be part of the Reagan era group of military men.
Two thirds of WW II soldiers were draftees, and they mostly fought overseas. One premise here is that we cannot draft unless its a regime destroying conflict. For us, WW II was not such a conflict. Had Germany and Japan won we would still exist (for a decent interval). It seems foolish to me that if a draft would prevent a crisis from reaching that level of trouble,it is unconstitutional but once were really in the soup, well ok, then we can draft.
Because of the extremely low death tolls to our side we simply have no need of a draft. We would spend more on sifting out the bad soldiers (especially if women were subject to the draft) than any military advantage gained. But Constitutionally I think it remains in the quiver. I signed up for the selective service register when I turned 18. Was it illegal for the Government to force me but not women to do so? No.
And in one last defense of the Supreme court as opposed to xlrq’s more reasoned opinion. I actually look forward to a Court that will simply say to some novel argument: “If that were true they wouldn’t have passed it or would have mentioned it. Its a damn fool argument get it off my docket.” Instead we get same sex marriage, no creches on Christmas, and penumbras.
I also think during the Civil War there was a lot of agitation that they were drafting (”enslaving”) white men to free black men from slavery. Its not like this is the first time its come up. The victors rejected that agrument and I doubt they would have enshrined it in amendments that you had to pass in order to rejoin the union. In other words in 1880 if the South seceded again could it plausibly be argued this time we couldn’t use the draft to whack ‘em again because of the 13th amendment?
And as what I hope is my final commentary, I think the ancient first republics all required free men to be soldiers. The founders and everybody else recognized that republics and soldier citizenry went hand in hand. Not to fight was to be expelled from citizenship. Part of the argument here is the conflict between ancient republican theory and more modern Lockean arguments. I think the founders looked more to the ancients for inspiration than the moderns but that is a big argument that I can’t flesh out here. But it leads me to believe the arguments that one could not draft under the original Constitution are not strong.
Well, I hope it isn’t your last comment because it is a good one, and I agree with much of it. I disagree though that it is a novel or “damn fool” argument. While I believe the intentions and text are the limiting factors in interpreting the constitution, the intentions alone are not sufficient.
I have made that very same argument about WWII on other questions, so it would be a bit inconsistent to walk away from that in this instance. Damn, hoisted on my own petard, except I am not claiming it is unconstitutional, but that I would like it to be and I don’t think the argument is clear cut that it is.
Now, if a draft would keep something from surely becoming a sure fire existential threat, I am certainly willing to consider that it should be done, though that is different from whether it is Constitutional. Of course, if the threat were that apparent, then we are really making the same argument are we not, in extreme cases the Constitution becomes more malleable. Certainly it did become so under Lincoln. Unlike many libertarians I harbor no deep seated hatred for Lincoln over that.
I am not sure they are very strong either, but they exist. Still I think this paragraph is pretty much correct. However, the ability to call out the militia I see being put forward by some is a power that I am not sure is analogous to a draft. My guess is when the document was drafted that people perceived it in different ways. Some of the Federalists might have considered a draft okay, most of the Republicans would not have. When the Constitution allowed the government to call out the unorganized militia, which was just free men of fighting age, the power being granted was not the right to force them to serve, but to give the federal government the right to form them into a fighting force, pay them, etc. I think you could argue that the power to draft if necessary was an implied power, and not forbidden, but I don’t think that is an open and shut case. When I get home I’ll pull out all my old stuff around this kind of thing and look it over.
Back to the “damn foolishness” argument, the Constitution does not explicitly authorize a draft, nor is it obviously a necessary antecedent to accomplishing the power to raise military forces, so I think you could easily argue it was never Constitutional if one is being strict about what the document said and the intentions of the founders.
A crotchety old judge might have said pre-Lincoln to the governments plea to be able to hold a draft: “If that were true they would have mentioned it. Its a damn fool argument get it off my docket.†Of course that assumes my understanding of what the intention of the relevant parts of the Constitution are correct.
After writing this I notice that someone at SayUncle is pointing out the same issue. He links to this speech by Daniel Webster in 1814 as an example of opposition on Constitutional grounds prior to the 13th. Here is an excerpt:
Now Webster is not the last word on this matter of course, but obviously I am not speaking on some ridiculous concern in light of our Constitution either. I had never before considered the issue as anything other than a pragmatic one or as one which a free people should approach with trepidation as opposed to a Constitutional one. For that I thank Michael. I also thank everyone here for putting some meat on either side. I’ll now go home and do a little more research.
Just throwing this out there, but has anyone read D.A. Ridgley’s post over at inactivist? The Unorganized Militia Wants, Um, Actually Already Has You!
Chris,
Thanks for the link.
Jvv and Xrlq,
If you don’t mind, I would be interested in what you have to say on this piece of mine, and heck, you might as well look at this as well. Only tangentially related, but given your interest in this I am curious.
Oh poo. I hate when I do that. Sawry jjv.
But you did say this, right?
I actually look forward to a Court that will simply say to some novel argument: “If that were true they wouldn’t have passed it or would have mentioned it.
But they did mention an exception, just not conscription.
But it’s really beside the point. And while I’m thinking of it, the founders didn’t write the 13th Amendment.
Societies throughout the enlightenment and thereafter often wrote universal law that only applied to a subset of that society due to the custom and structure of that society. And frequently we have, through both legislative and judicial process expanded the scope of such law in practice. As a society we’ve discovered often that law initially only intended to apply to white property owning men was also good for brown men too. And even for white and brown men without property. And (gasp!) women.
Not only the scope of such law has changed, but so has the implications of certain laws, as Lance has pointed out with the 4th Amendment. The 1st Amendment’s right to assemble has been subsequently interpreted to cover all manner of association, including contracts.
Don’t make the mistake of taking this as an argument for a living Constitution; it’s merely an aknowledgement of a living society. Under a government that is continuously writing laws that chip away at freedom, we should take as many opportunities to legally expand freedom that we can.
yours/
peter.
That is exactly what I was getting at with this:
Often we have set up laws feeling that by custom or other legal barriers that it would not apply to some situation or other, though there is no real reason it should not. It is not unreasonable to examine the implications of what general laws should be beyond the intention of the laws authors. That is different from making the words mean something different than what they plainly say, or the opposite of its intention. Expanding something in line with somethings intention is not the same as expanding something to pervert its meaning such as claiming a law which says everyone should be treated equally under the law means they should be treated differently under the law in order to make the outcome more similar. Instead, as Peter suggests, it was not illegitimate to apply equality before the law to people of different ethnicity or women.
Not sure I am expressing myself clearly, but I will argue strenuously it is not because my thinking is unclear;^} Except where I so admit of course!
Drafting people to fight an unjust war is wrong, for the simple fact that the war is unjust and the reasons it is being fought for do not have the nation’s best interests in mind. Unlike the Sprueme Court ruling, this war is not, never has been, and never will be, “just and noble” by any standard. It was based on pure lies and greedy imperialism.
Drafting would thus be in a way forcing people to commit a crime. That’s what the Iraq war is, a crime, it’s illegal, it’s wrong, it’s all of that.
But then you might argue, well maybe it is wrong because of that. But what if it’s there to keep our Congressmen from starting more wars in the first place since people might think twice about their support of the war if their own kids might be put in harm’s way? If so, why draft everyone (or their kids) who does _not_ support the war? They are not responsible for it and so do not deserve to be “punished”.
The idea that you are being drafted as a form of “punishment” is a problem in our society. The nation has to be defended. We cannot have a situation where the Government can not conscript its entire manpower to wage war. That is how Republics die. People say “I’m not for this or that war” and so they don’t have to serve in it. We make important decisions in this country by voting through our representatives. No one can “opt out” of the war just because they voted against it. A lot of America Firsters were drafted.
The our intervention in Iraq is not illegal in any sense. It was approved by the Congress, funded by the Congress and run by the President. One of the reasons listed in the reasons for the war were Saddam’s violation of U.N. resolutions. I don’t care about that(except for WMD’s and the like) but in no way can this war be called illegal. Whether you like a war or not you have to fight in it when drafted or serve in some approved conscientier objector status of service. Otherwise leave the Republic. The thing preventing Congress from iniating wars is public opinion, risk and national interest. The President intends to increase the Army and Marines by almost 100,000 men and he will not need a draft to do so. Until the draw down in the 1990’s we had a much bigger army, navy and Marine Corps and no draft. I think those against the draft are falling into the trap of the Polish Parliment in which every Senator had a veto. Nothing could get done to defend the country. That is what happens when any man can exempt himself from service by saying he’s against the war.
jjv,
My arguments against the draft certainly do not rely on any argument about any particular war, so I think if there is a draft certainly your arguments are on point. They also apply to a volunteer army as well. The idea that the war in Iraq is illegal is just a slogan. In fact, as wars go it has more legal standing than most.
Here is a website where the constitutionality of draft and Arver v U.S (1918) is considered by Leon Friedman.
This Article does not purport to examine the desirability or undesirability of any system of federal conscription; it attempts only to marshal the available historical evidence to demonstrate that the framers of the Constitution did not intend to grant Congress the power to conscript.
As for myself, i am not an American citizen , i have no knowledge of your laws and i have no idea whether or not arguments in Leon Friedman´s article have been refuted.
Thanks. I’ll try and read it later this evening.
Lance
Did you have time to read that article ?
If you did, i would like hear your opinion.
Though even if Leon Friedman is technically correct, it is unlikely that Supreme Court will ever overturn Arver.
“The idea that you are being drafted as a form of “punishment” is a problem in our society. The nation has to be defended.”
But the war in Iraq is not that type of war, it is an offensive and aggressive war, not a defensive war. It does not matter whether you say it’s legal or illegal. Saddam was not anywhere near the threat he was made out to be. And furthermore, for true defense, that is, the enemy comes right here onto our own land and are attacking us right here, one would not have a standing army, rather one would have state militias. If a “draft” were to exist, the people that get drafted by it would go into those.
“We make important decisions in this country by voting through our representatives.”
So then why can’t we revoke the decision to go to war and just get out? That’s the best solution I see with Iraq.
“Nothing could get done to defend the country. That is what happens when any man can exempt himself from service by saying he’s against the war.”
But what if they had to prove in some way they really truly were against the war and not just making that up to widdle away from a draft to fight in a war they were originally promoting? See, the thing though with Iraq is that it is NOT a defense, we are NOT protecting this country over there we are imperialistically controlling and occupying someone else’s country. In that case any person SHOULD be able to exempt themselves from service! What *good* things do we have to lose by not being able to fight wars of aggression and imperialism? None! Imperialism is bad. You cannot exclude the type of war being fought from the argument.