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Is the draft forbidden by the 13th Amendment?

Dear Cecil:

From time to time there is talk that Congress will reinstate the draft, perhaps including mandatory service on the part of all 18-year-olds. This brings to mind a question: why isn't the draft considered "involuntary servitude," and forbidden by the 13th Amendment? Has this ever been tested by the courts? If so, what was the outcome?

Tom G., Dallas

Cecil replies:

Dear Tom:

There are a couple promising legal strategies you might avail yourself of in attempting to elude the draft, but the 13th Amendment dodge isn’t one of them. A couple chumps tried it during the Vietnam era and were pretty much laughed out of court and into the ranks. The amendment was meant to prohibit slavery and has never been successfully applied to military service.

On the other hand, you could make a plausible case that the Constitution forbids Congress to send conscripts off to fight an undeclared war, or to conduct a peacetime draft. The theory here is that while Article I, Section 8 of the Constitution empowers Congress to "provide for the common defense" and "raise and support armies," the framers simply meant to establish a professional army, composed of volunteers. This is not as off the wall as it sounds. You will recall that early Americans found the British Navy’s practice of forcibly inducting men into service pretty obnoxious, and it is unlikely they would turn around and authorize a draft.

The Constitution does permit the separate states (or "the several states," as we legal scholars like to put it) to organize militias for home defense (note the Second Amendment), and in the broadest sense the militia in colonial times consisted of every male 18 and over who was healthy enough to carry a gun. So (in this view, anyway), while the federal government can’t draft people, the states can.

What enables the federal government to conduct the draft is clause 15 of Article I, Section 8, which permits Congress to call out the militia to "execute the laws of the Union, suppress insurrections and repel invasion." This means that Congress can send draftees off to foreign countries after a declaration of war, which has the force of law. But it doesn’t include undeclared conflicts like Vietnam. And presumably it wouldn’t include a peacetime draft.

A number of inductees pursued this notion during the Vietnam period, with mixed success. The government’s case was shaky, but for political reasons the judiciary was reluctant to declare Uncle Sam’s military adventures illegal. So the cases tended to drag out. On a number of occasions the Selective Service people found excuses to reject potential draftees when it appeared they might have a good chance of winning a court fight. There is at least one case on record of a man whom the Army honorably discharged before the end of his term, simply to avoid the possibility of an embarrassing court ruling.

At any rate, nothing was ever settled and no precedent was ever set. But the issue might come up again if a peacetime draft is ever reinstituted. We await developments.

Cecil Adams

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