For two-and-a-half centuries, literally countless Americans have died in military service, many of them draftees.
Indeed, even the American colonists were familiar with conscription, the Revolutionary War having been waged in part by men who were drafted pursuant to the constitutions of nine states. However, because they had been drafted only into state militias, the national government was forced, when it needed soldiers, to requisition them from the states. Some people deemed this arrangement inconvenient and sentiment arose for broader federal power over military affairs.
In the Constitution, the power of Congress to conscript is neither expressly denied nor granted. Article I, Section 8, expressly provides only general military powers for Congress: "To declare War . . . To raise and support Armies . . . To provide and maintain a Navy. . . ."
Just how broad were these powers intended to be? The question was not tested for nearly a century-and-a-half later, until World War I. On May 18, 1917, President Wilson signed into law the Selective Draft Act. It was intended to provide manpower to fight the stalemated trench warfare which had been draining the lifeblood of European countries for three years.
Ten men who were indicted for failing to register under the Act launched a broad-based constitutional attack against it—the first, and, until the Vietnam Era, the last challenge of this kind ever made against the federal draft as such. (All legal challenges to conscription after 1918 were of a more limited nature, designed to test or clarify particular provisions, such as the religious exemption clause and the law's alleged "inequality" for exempting women--except one case unsuccessfully brought by me challenging the conscription law under the Ninth Amendment.)
Convicted in various federal district courts, the defendants finally reached the Supreme Court of the United States. There, they raised several constitutional objections to the draft, all unsuccessfully. Though it is significant that the defendants lost in the Supreme Court (unanimously), much more significant is how the Court treated their constitutional arguments, and why.
One of the defendants' major arguments was that Congress lacked the power to enact a law forcing men to fight. The Court countered that the Constitution granted that power when it authorized Congress to declare war and to raise and support armies. "As the mind cannot conceive an army without the men to compose it," said the Court, "on the face of the Constitution the objection that it does not give power to provide for such men would seem to be too frivolous for further notice."
At stake in the 1918 Selective Draft Law Cases was an all-encompassing power to strip men of their personal liberty and send them out to die. At stake was whether men could be fined or jailed for refusing to lay their lives on the line for a cause which was not theirs. Yet the Court evaded the defendants' "Congressional power" argument, brushing it off as "too frivolous for further notice." This blatant refusal to address profound constitutional issues was a strategy which the Court was to employ consistently throughout the draft cases.
What the Court did, in attempting to dispose of the "Congressional power" argument, was to set up a false alternative: the government must either draft men, or do without an army.
There was of course a third choice, suggested to the Court by the defendants: Congress's delegated power to "raise" an army should properly be understood as calling for volunteer enlistments. "This [choice, said the Court] . . . challenges the existence of all power, for a governmental power which has no sanction to it and which therefore can only be exercised provided the citizen consents to its exertion is in no substantial sense a power."
Exactly! That's why America was founded on principles of individual rights, limited government, delegated power, necessary and proper.
But the Supreme Court of the United States wasn't having any.
Give the government the power to do something, the Court was saying, and, ipso facto, it can use force to get what it wants. On that premise, for example, the Constitution's delegation to Congress of the power to establish post offices would allow the government to draft postal employees, instead of hiring them in the free market like any other employer.
The defendants advanced still another argument: by reason of its religious exemption clauses (which exempted ministers and conscien¬tious objectors from the draft), the Act violated the First Amendment's prohibition against government contributing to the establish¬ment of religion. While there was merit to this argument—which the Court had a duty to consider—once again, the justices skirted the issue: " . . . we pass without anything but statement . . . [this] proposition . . . because we think its unsoundness is too apparent to require us to do more." Cowards!
When the defendants addressed themselves to the Thirteenth Amendment—and cited as a bar to the draft the Constitution's unequivocal prohibition of slavery and involuntary servitude—the Court evaded the argument by declaring it "refuted by its mere statement."
Evasion was the safer course for the Court; it allowed the justices to ignore their own precedent: a 1911 case where it had written: "While the immediate concern was with African slavery, the [Thirteenth] Amendment was not limited to that. It was a charter of universal freedom for all persons, of whatever race, color or estate, under the flag. * * * The plain intention was to abolish slavery of whatever name and form and all its badges and incidents; to render impossible any state of bondage; to make labor free, by prohibiting that control by which the personal service of one man is disposed of or coerced for another's benefit which is the essence of involuntary servitude."
Obviously, the "charter of universal freedom," which was to "abolish slavery of whatever name and form and all its badges and incidents," etcetera, was constitutionally and morally acceptable when the beneficiary was the government. The Court wrote:
. . . 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 . . . we are constrained to the conclusion that the contention to that effect is refuted by its mere statement. (My emphasis.)
The defendants had anticipated this "need-over-rights," altruist-collectivist-statist response. In a naive and over generalized attempt to show that freedom and conscription were mutually exclusive, the defendants argued, correctly, that compelled military service was "repugnant to a free government and in conflict with all the great guarantees of the Constitution as to individual liberty. . . . "
But the premise of this proposition is so devoid of foundation that it leaves not even a shadow of ground upon which to base the conclusion. Let us see if this is not at once demonstrable. It may not be doubted that the very conception of a just government and its duty to the citizen includes the reciprocal obligation of the citizen to render military service in case of need and the right to compel it. . . . To do more than state the proposition is absolutely unnecessary . . . .
There were, however, arguments of a different nature which the Supreme Court of the United States did find persuasive—arguments it relied upon as "proof" for the proposition that the draft was constitutional.
Look, said the Court, at the " . . . practical illustration afforded by the almost universal legislation to that effect now in force." Look, the Court was saying, at what other nations have done.
Thirty-three countries were cited in a footnote to the Court's opinion—thirty-three governments which, prior to 1918, had subject¬ed their citizens to the draft: Argentina, Austria-Hungary, Belgium, Brazil, Bulgaria, Bolivia, Colombia, Chile, China, Denmark, Ecuador, France, Greece, Germany, Guatemala, Honduras, Italy, Japan, Mexico, Montenegro, Netherlands, Nicaragua, Norway, Peru, Portugal, Rumania, Russia, Serbia, Siam, Spain, Switzerland, Salvador, Turkey.
The list includes every imaginable social and political system: monarchies and dictatorships; banana republics and primitive backwashes; brutal oriental despotisms and disjointed feudal kingdoms.
Missing from this list is a constitutional republic in which the government, created for the express purpose of protecting individual rights, derives its limited, delegated powers from the people.
Could our Supreme Court really have believed that American citizens were no more immune from statist force than the helpless peasants under the heel of the Russian Tsar, or the miserable serfs under the whip of Japanese feudal barons?
Could the Court have forgotten why so many immigrants "yearning to breathe free" had fled to America's shores precisely to avoid conscription in their native countries!
Could the Court have forgotten that America was supposed to have been founded on the principle of inalienable rights and a limited government of delegated powers, not on the antithetical doctrines which have plagued the rest of the world from the beginning of time?
Would the Court ignore its own earlier precedents: that in judging a law our Constitution and our form of government must be its only guide?
It could, and it did. (Perversely, included in the Court's list of those countries that had draft laws—held up as an example for America to follow—was Germany, with which we were then at war.)
In addition to taking an international popularity poll on the draft issue, the Court attempted to justify conscription on the basis of three periods of United States history: pre-constitutional, the War of 1812, and the Civil War. To what occurred during all three periods, it gave dubious interpretations.
While in the pre-constitutional period it had been the practice of the states to draft men into the militia, and while it was true that the states had thus set an unfortunate precedent at a critical time in our history, it did not follow—as the Court implied—that the Constitution transferred this arbitrary power from the states to the federal government. The Constitution speaks for itself: the federal government was given no explicit power to raise and support an army by means of a national draft. The grant of power was, at best, equivocal.
The War of 1812 was cited by the Court because James Monroe, then Secretary of War, had written to Congress recommending compulsory federal draft legislation. (Ironically, we were then at war with the British because they were impressing American seamen into their navy.) While the bill that was later introduced never passed, the Court guessed that, but for the intervention of peace, the United States would have had a draft law at that time. In fact, there is ample evidence that the bill had faced an uncertain future in both houses of Congress.
In citing the Civil War period, the Court placed considerable emphasis on an 1863 conscription law, suggesting that it was solid legal precedent.
In the first place, the United States Supreme Court had never ruled on that law's constitutionality; the Civil War Draft Act was never challenged beyond the highest court of Pennsylvania. Second, that law provided for a financial alternative to the draft: draftees could find someone to take their place, or pay the Secretary of War up to three hundred dollars to find a substitute. (The essence of the Civil War Draft Act can thus be summed up as "your money or your life.") Third, that law expired before involuntary servitude had been outlawed by the Thirteenth Amendment, while the World War I draft law was enacted after the Thirteenth Amendment.
Finally, the Supreme Court cited as authority a book entitled The Law of Nations, a classic work written by an eighteenth-century scholar-diplomat named Emmerich de Vattel. The Court's reference was understandably oblique. It wouldn't be a good tactic to actually quote from so revealing a political tract. Just how revealing can be gleaned from the following excerpt from Vattel's The Law of Nations:
Every citizen is bound to serve and defend the State as far as he is able. Society cannot otherwise be preserved; and this union for the common defense is one of the first objects of all political association. Whoever is able to bear arms must take them up as soon as he is ordered to do so by the one who has the power to make war. . . Since every citizen or subject is obliged to serve the State, the sovereign has the right, when the necessity arises, to conscript whom he pleases.
Since "society" is only a number of individuals in a given geographical area, what Vattel, the Supreme Court, and the colonists who sanctioned state militias, really meant when they asserted "the draft is necessary to preserve society," is: some men can be preserved only by forcing other men to preserve them.
And so the draft became yet another vehicle by which our government claimed countless victims. In the twentieth century alone, hundreds of thousands, from the Argonne Forest to the Vietnam jungles, have fallen in mute testimony to the consequences of altruism¬-collectivism-statism—victims not merely of powder and steel, but of the idea that man is a sacrificial animal.