Posted by Ilya Somin: The Civil War Era Draft and the Constitutionality of Mandatory National Service Under the Thirteenth Amendment: http://volokh.com/archives/archive_2007_09_23-2007_09_29.shtml#1190686947
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. They could have created a specific exemption for it, similar to the exemption for the use of forced labor as criminal punishment. Yet they 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. [1]Draftees could get out of their obligations by providing a substitute recruit or by paying a $300 fee (many northern communities 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. References 1. http://www.wtv-zone.com/civilwar/usdraft.html _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
