Nearly a hundred years ago, the head of the Philadelphia Communist party suggested to conscripts for World War I that the draft was a violation of the 13th amendment rights against involuntary servitude. The government’s response for the expression of this presumably despicable notion was to throw him into jail for a decade, a decision upheld by the Supreme Court (it was from that decision that the “cannot falsely shout fire in a crowded theater” dictum came from.)
So now, of course, when we live in a time that’s far more conducive to open discussion, and we have a much more understanding Supreme Court, I’m moved to wonder…*is* a draft unconstitutional? The constitution gives congress the right to “raise” armies, but I didn’t notice anything that specifically said they can commandeer citizens against the will of the citizens. In fact, there’s yet another amendment–the 5th one–that says citizens will not be deprived of life, liberty or property without due process of law. That is to say, the only situation in which the Constitution seems to say it’s okay to deprive someone of their basic freedom of movement and right to have their own stuff is if they’re paying for a criminal act of which they’ve been convicted.
So…is there a case to be made for a draft being unconstitutional? And don’t tell me it’s constitutional simply because it’s existed before unless you’re ready to argue that African-Americans should never have been counted as more than 3/5 of a person because that was the way it was done before.
PAD
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Could you please kindly get off Dr. Rice’s back?
Nope.
Given that Rice’s public statements (the infamous “smoking gun as mushroom cloud” example for one) were instrumental in beating the war drums and getting the American public to buy into a completely unnecessary war, I’m not letting her off the hook until this whole group of people is out of office.
You may see a “marvelous woman” and an “esteemed Dr.” I’m seeing an out-of-place Cold Warrior and someone who has no scruples about lying to the public in order to achieve a greater goal. So no, no plans to let up.
But thanks for asking.
TWL
Tim,
Didn’t think so. But I just had to ask:)
But you failed to address Jerome’s main point, that being that “unimaginable” is a figure of speech. Nothing is actually “unimaginable” because if I ask for an example of something unimaginable you can’t give me anything (and if you do it is, by definition, imaginable).
So I say go right on nitpicking at individual words that Dr. Rice uses; it’s less effective than genuine arguments and therefore has less likelihood of swaying any voters.
Bill,
He didn’t say “can you drop this one particular issue”. He asked me to “get off Dr. Rice’s back.”
I answered the question asked. There’s enough at stake in this election (IMO) that I consider everything “in play”, as it were — word choice included.
Yes, there are better arguments to use against her — and I have, as I’m sure you’ve noticed over the last months. When given an obvious and gift-wrapped invitation to mention the “no one could have imagined” gaffe, however, I will most assuredly do so.
Christ, it’s at least as relevant as Clinton’s “the meaning of ‘is'” bit, and I didn’t hear anyone on the conservative side of the aisle complaining that THAT was an irrelevant point…
TWL
Unimaginable?
To quote Joe Straczinsky, in Amazing Spider-Man #31 (I think – don’t have the issue numbers handy here, but it was the one about 9/11):
“How do you say we didn’t know? We couldn’t know. We couldn’t imagine. Only a madman could contain the thought, execute the act, fly the planes. The sane world will always be vulnerable to madmen, because we cannot go where they go to conceive of such things.”
(And as I’m sure many of you are aware, Straczinsky is hardly an apologist for the Bush administration…)
Unimaginable?
As has been brought up before, just mere weeks (if not days) before 9/11, an episode of The Lone Gunmen had a plot involving a hijacked plane crashing into the World Trade Center.
No, not unimaginable, even in the terms that Rice intended the comment to be used.
“As has been brought up before, just mere weeks (if not days) before 9/11, an episode of The Lone Gunmen had a plot involving a hijacked plane crashing into the World Trade Center.
No, not unimaginable, even in the terms that Rice intended the comment to be used.”
And also just weeks prior to 9/11, a John Carpenter movie told a cautionary tale of evil ghosts on Mars that possessed humans to rebuild their cruel, villainous society. Bush and NASA had totally better watch out for that too.
And just how do you defend against the “unimaginable”? Taking the 9-11 incident, what would you do?
– Strip search anyone boarding an airplane?
Oh yeah, that would work. Just look at the complaints now when people are asked to take off just their shoes.
– Compare names of passengers to know terrorism suspects?
Again, that’s working so well now, it would have worked before 9-11.
– Profile passengers based on looks or race or national origination?
Sure, the ACLU would have gone for that before 9-11. They won’t even go for it after!
Station fighter planes above all major US cities to shoot down commerical airliners?
Um, no. The room for error, even slight is just too great a risk.
– A preemptive strike against people that could do such a horrible deed?
I believe that’s part of the reason given for the current situation in Iraq, and we all see how well that’s being accepted by a lot of people.
But seriously, what could ANYONE have done to prevent 9-11?
“1. The Constitution gives the Congress the right to raise an army and a navy.
2. The Constitution also provides that the Congress may enact laws “necessary and proper” to carrying out their enumerated powers or responsibilities.
3. The draft was enacted by Congress under the theory that conscription is necessary to increase the military to a strength large enough to successfully fight some wars.”
4. The Court is traditionally deferential to the Congress’s policy decisions, particularly where the decisions are in relation to national security, and where the Congress specifically addressed the constitutionality of a statute.
Yes, but I already addressed those. Although the Constitution says that Congress has the right to “raise” an army, it does not specifically say that Congress has a right to effectively go door to door, yank citizens out of their homes and say, “You. You’re going to war.”
Quite simply, at the time that the Constitution was written, slavery was still legal (blacks were only 3/5 of a person, remember?) So not only wasn’t it unthinkable that people who have committed no crime be forced to leave their families and serve others, it was in fact SOP.
So now we come to “necessary and proper.” “Necessary?” Perhaps. I can see Congress saying, “It’s necessary for us to restart the draft because, y’know, all those guys who were trained for one weekend a month, they’re kinda getting killed and we need fresh meat.” But the 13th Amendment couldn’t be more clear: No involuntary servitude. Period. Which means that involuntary servitude is improper as directed in the 13th Amendment. The Constitution didn’t say “necessary OR proper,” or “necessary and/or proper.” It said “necessary AND proper.” If it’s improper, i.e., in violation of another aspect of the Constitution, you can’t do it. So Congress’ rationale for WHY it conscripts its citizens should be completely beside the point because the 13th amendment says you CAN’T.
As for the courts being “traditionally deferential,” oh yeah. Yeah, a long and proud history of having no legislative guts in the face of Congress waging war is exactly the argument needed to win me over.
Come to think of it…
Has Congress actually *declared* war? I mean, I know they voted to give Bush the power to wage an apparently endless battle against Iraq, but that’s not the same as declaring war. The Constitution mandates a specific procedure for going to war, and what we’ve got isn’t it. Which would mean that every single person involved who swore an oath to uphold the Constitution is in violation of that oath. Shouldn’t every single person who voted for it or supported it be tossed? Bush? Kerry? Everybody?
Boy, maybe Nader’ll be the only one left TO vote for.
PAD
“PAD:
“Because Bush is an inept clod (whom the majority of the country didn’t want in the first place) who cynically and ruthlessly capitalized on Post Traumatic Stress of this country after 9/11 to pursue a vendetta against Saddam whom he and his advisors had targeted before setting foot in office.”
Wow. Name calling right out of the box. A good sign of a good debate”
Number one, it’s hardly right out of the box. And number two, I prefer to think of it, rather than “name calling,” as “truth in labelling.”
PAD
Christ, it’s at least as relevant as Clinton’s “the meaning of ‘is'” bit, and I didn’t hear anyone on the conservative side of the aisle complaining that THAT was an irrelevant point…
I disagree–Clinton’s remarkable statement was potentially an example of perjury. It was enough to get him disbarred for a time.
But thanks for bringing it up. We can never have too many Clinton flashbacks for my taste.
But seriously, what could ANYONE have done to prevent 9-11?
How about, instead of being silly beyond belief and failing to make a valid point in your little rant, you consider what should have been done?
Or what has been done since 9/11?
Two spring to mind immediately:
A) Reinforced cockpit doors.
B) Air marshalls.
But wait… the airlines convinced our gov’t for years and years that this was too expensive and unnecessary.
Too bad they were so horribly wrong and if it had been done, 9/11 in it’s exact form would likely have been prevented.
Is it possible to prevent everything? No.
But when can eliminate the most dangerous stuff BFEORE it can be used, such as a fricking flyable MOAB, you’re doing what you can.
I disagree–Clinton’s remarkable statement was potentially an example of perjury. It was enough to get him disbarred for a time.
That line alone? No it wasn’t. The sentence as stated is absolutely correct — lawyerly in phrasing and slippery, sure, but technically correct and not perjury. I don’t recall exactly what the disbarment was due to, but it sure as hëll wasn’t that one sentence.
Actually, after doing a little digging … he was never actually disbarred at all. He’s been barred from arguing cases before the Supreme Court , which is something he’d never done anyway and few lawyers ever get the chance to do, and had his law license suspended in Arkansas, not revoked.
Accuracy is a wonderful thing.
Now, if you’re going to object that “lawyerly and slippery phrasing” is conduct unbecoming a president, I’ll agree — but I’ve got sixteen words in the SOTU address forming up outside who’d like to chat. I’m fairly certain that the SOTU is considered the equivalent of under oath in terms of impeachable offenses.
Even if your assertion WERE true, however … how exactly is lying about a private affair somehow worse than a misleading statement about an attack that killed 3,000 people?
And from PAD…
Boy, maybe Nader’ll be the only one left TO vote for.
No way — that’s when Dean hops back in. 🙂
TWL
PAD wrote:
Tim says
“Actually, after doing a little digging … he was never actually disbarred at all. He’s been barred from arguing cases before the Supreme Court , which is something he’d never done anyway and few lawyers ever get the chance to do, and had his law license suspended in Arkansas, not revoked.”
“Accuracy is a wonderful thing.”
It sure is.
From CNN
Clinton to contest Supreme Court suspension
October 2, 2001 Posted: 8:58 AM EDT (1258 GMT)
WASHINGTON (CNN) — Former President Bill Clinton will contest Monday’s Supreme Court order that suspended him from practicing law before the high court, his attorney said.
The Supreme Court gave Clinton 40 days to argue why he should not be permanently disbarred.
“This suspension is simply a consequence of the voluntary settlement entered into last January with the Arkansas bar. Pursuant to the Supreme Court’s order, we will show cause why disbarment is not appropriate,” said attorney David E. Kendall.
Well, I am no expert on the law and you may indeed have been accurate about Clinton not being disbarred. If so, I hope Bill wasn’t paying Mr. Kendall big bucks for his crack legal advice.
At any rate, my point was that Dr. Rice’s statement was just a figure of speach. Had she said it in a court of law I suppose some lawyer might try to claim that she perjured herself since he could show that actually people HAD imagined such a thing…but the judge would tell him he was being a dìçk.
But again, thanks for dredging up Clinton…sniff…God how we’ve missed him. he entered office with one party in control of both houses and the presidency…and left it the same way. Just not the same party. Karl Rove must light candles in church blessing his name.
Um, Bill — that’s one of the exact same articles I looked at. It says specifically that he was suspended from practicing law before the high court.
Am I completely missing something, or did you just support my point while claiming to refute it?
As for Clinton “leaving it the same way”, while you certainly have every right to feel smug … let’s do remember that (a) one of those houses and the presidency were only in GOP hands due to a single vote on the Supreme Court (since the 50/50 tie in the Senate went to whichever party got the presidency), and (b) the GOP promptly managed to overreach and pìšš øff one of their moderate senators, handing control right BACK to the Democrats in a short span of months.
Hardly the mark of some conservative ascendancy in the country. I’m not saying you’re not entitled to a little smugness (though I think blaming Clinton for it is absurd) … but not to the degree you’re showing here.
TWL
Tim, I’m not trying to be anal retentive here…I’d pick a much less competant person than yourself to do that…but you said “Actually, after doing a little digging … he was never actually disbarred at all”
His lawyer says, in the very artcle you apparently read “we will show cause why disbarment is not appropriate,”
The article also states “The Supreme Court gave Clinton 40 days to argue why he should not be permanently disbarred.”
So….you say he wasn’t disbarred and according to this article both his lawyer and the Supremes say he was. And I would let this slide but for the “Accuracy is a wonderful thing.” line which is too hard for my weak nature to resist.
Smug shmug. I’m simply amazed that so many liberals got suckered by Clinton’s snake oil. He was good at getting himself elected. he was awful at helping his party. It took him only two years to do what the republicans could probably have never pulled off on their own–take over the House.
I’m not the partisan you may think. I belive that Clinton hurt the Democrats and the country. To put it another way, one you might appreciate–I think that Clinton not only made GW Bush possible, he made him inevitable.
Bill,
I guess that’s depending on definitions. I tend to read “disbarred” as being forbidden from practicing law *anywhere*, as opposed to one specific venue. I also tend to read it as permanent — a revocation rather than a suspension. Certainly when you said “it was enough to get him disbarred for a time”, I read the implication as much broader than simply a single state or a single courtroom.
If you use the term to mean that someone has a license suspended or is permanently barred from one particular venue, then you’re absolutely right that he was disbarred. I apologize for any muddled phrasing — I think we were probably using the same words to mean slightly different things.
Smug shmug. I’m simply amazed that so many liberals got suckered by Clinton’s snake oil. He was good at getting himself elected. he was awful at helping his party. It took him only two years to do what the republicans could probably have never pulled off on their own–take over the House.
I think Gingrich gets a lot of credit for the House takeover — Clinton gets some, but I’m not sure he gets the lion’s share.
And, perhaps not surprisingly, I have a different assessment. Clinton was by no means my first choice in the ’92 primaries (I went for Tsongas, thus continuing my lovely track record in picking the wrong primary horse every single time I’ve voted in a presidential primary … sheesh), but I think on balance he left this country in far better shape than he found it. Sure, he’s not someone I’d particularly want to hang around with as a friend or someone I’d want remotely near my daughter — but I don’t vote for leaders based on either of those criteria.
I think his heart was generally in the right place. (And I’d point to how Chelsea turned out as at least some circumstantial evidence there. Good parents can easily turn out rotten kids depending on circumstances, but I think the reverse is a lot more rare, especially living in a fishbowl.)
Don’t get me wrong — it’s not like I’m suggesting he belongs on Mount Rushmore or anything. But I don’t feel especially suckered by him in the slightest. Disappointed at times, sure. Suckered, no.
I’m not the partisan you may think. I belive that Clinton hurt the Democrats and the country. To put it another way, one you might appreciate–I think that Clinton not only made GW Bush possible, he made him inevitable.
I’m not sure how that’s a phrase I’m supposed to appreciate. Given that you generally seem to see Bush as competent, strong and effective, I’m honestly not sure how to interpret that last.
Thanks for the attempt, though. Another day, that might actually have cheered me up. 🙂
TWL
Typically when something is unconstitutional, you don’t address whether unconstitutionality makes it improper under the “necessary and proper” clause. Usually unconstitutionality is enough.
The big question is whether conscription is “involuntary servitude” within the meaning of the Thirteenth Amendment (or ordinary English usage for that matter). It’s clearly involuntary, pretty much by definition. But is it servitude? Suppose the Government decided the population drift from rural areas to cities over the last century was a Bad Thing and instituted a draft to compel people to become farmers. This would clearly be involuntary servitude. It’s long term, reduces people to a subject state, and would be unconstitutional whether or not the “draftees” were paid, as the slaves were not. This was clearly what the “involuntary servitude” language in the Thirteenth Amendment was intended to forbid the rascally unreconstructed Confederates from doing; the Republicans weren’t stupid, and they could anticipate what the Rebels would do as soon as the Federal troops were withdrawn. (They were right, too; consider “Black Codes.”) Additionally, it’s inconceivable that the Congress in 1865 would have abolished the draft, considering they’d used one to fill out the same Federal Army that gave them the ability to impose the Amendment in the first place.
Unlike Scalia or Thomas, I don’t consider the intent or “original understanding” of the drafters to be dispositive over the plain language of the Constitution. The point I’m trying to make is that “involuntary servitude” doesn’t really look much like conscription. The draft is short-term, in response to specific crises unless it’s being proposed by Charles Rangel, and self-limiting because it has a random chance of affecting everyone rather than creating some permanent or long-term class of helots. And when you’re reducing someone to a subject status you usually don’t arm them.
he entered office with one party in control of both houses and the presidency…and left it the same way
Which is rather amusing, because I think Clinton would still be in office today if he could run more than 2 terms.
Craig,
I regard to your last comment, I think you may be right. Seeing as how Bush41 won on Reagan’s coattails, it’s pretty safe to say Reagan would have win a third term. This is why I think term limits are a bad idea. If enough people like the way the country is going, why not keep him or her? It should be up to the people to decide when a President leaves office.
I personally would have enjoyed trying to “knock out” Clinton. He would have run on his record, something Gore refused to do, which I will never understand until the day I die.
Also, if there were not a term limit on the Presidency, we would see incumbents tested in primaries, since there would be no more guarantee of an “open” shot at least every 8 years.
Hold the presses — I think Jerome and I have found a point we agree on. 🙂 While I don’t know if I totally oppose term limits on the presidency, I’d never thought about what effect it might have on the primaries there. More competition there seems like an excellent thing!
(Of course, that presumes you can make the primaries less money-driven and committee-anointed than they are now … but that’s a problem whether you have term limits or not.)
TWL
Tim,
You agree with something I said? Who are you and what have you done with Tim! 🙂
Even your last point i was going to contradict you on, but you ended with what I would have said.
Wow! See? Miracles do happen!
Seeing as how Bush41 won on Reagan’s coattails, it’s pretty safe to say Reagan would have win a third term.
I guess the only thing here is you have to look at Reagan’s health at the time he could have ran for a 3rd term.
I don’t think it’s partisan to say that there are some who wonder about his mental capacities, since he has Alzheimers, when he was still in office and whether it affected him then.
He would have run on his record, something Gore refused to do, which I will never understand until the day I die.
I won’t understand it either. I had no intention of voting for Gore regardless, but the fact that he tried to distance himself from Clinton hurt him the most imo.
Gore’s problem was that he wanted to distance himself from Clinton’s scandals, but he went too far and distanced himself from Clinton’s economic success as well.
Instead, he ran on a “people vs. the powerful” platform. I don’t think he ever understood how disengenuous that sounded coming from a sitting VP.
Craig wrote: “Which is rather amusing, because I think Clinton would still be in office today if he could run more than 2 terms.”
Judging by what a squeaker the last election was even with even a stiff like Gore running, you’re probably right.
Hmmm. I personally agree with Heinlein. “Any nation that cannot defend itself with an army of volunteers does not deserve to exist.” And remember, this was in his Admiral Bob phase of life, not the hippy free-love part.
Also, for those who’re considering it a philosophical argument, know that the head of the draft board recently suggested in a proposal that the draft be raised to a maximum age of 34 and allow women to be drafted.
Storytime! Kay? Kay. A couple years back, my Dad had just gotten out of the hospital after having most of his colon removed and dropping about 60 pounds. He worked at the MOTBY, or for those of you that are like I’d say everyone outside Bayonne, the Military Ocean Terminal. So, he’s not doing real hot. (Trust me, there IS a point to my little tale.) Now, while he was sick, they decided to mothball the base, so the first thing to go was security. Ironically enough, you could look from the drydock and see the WTC. Never realized that until now, but that has almost nothing to do with my story. So, Dad’s working away at his desk, shipping military stuff all over the place when ALL OF A SUDDEN (could it BE any other way?) he hears a commotion outside his little office. He stands up thinking “Two days back and what the hëll?” So, he sees a, well, largish big guy punching his one assistant. Without stopping to think (a malady I share) my just-out-of-the-hospital Dad grabs this guy, throws him against the file cabinets across the room and holds him there.
That’s when Dad saw the knife that even Crocodile Dundee would respect in the guy’s hand.
Trust me, there is a point.
So, one of Dad’s other guys, Peter by name, runs over and helps my Dad hold him there until they can get(I’m not making this up) a large woman they called Miss Piggy to sit on the guy until the cops could come and haul him off. So, my Mom calls Dad around lunch like usual, he tells her the story like it’s no big deal, she gets off the phone and hyperventilates. A month later we’re all in the Pentagon so my Dad can get a medal along with Peter and Miss Piggy.
Okay, you’ve come along this far, so I guess you’re wondering what the hëll I’m talking about. My Dad reacted. To a threat. Without knowing the consequences. Sorry for the partial sentences, but this is my story. He saved a life with corny as it sounds, little regard for his own.
That’s right.
He volunteered.
So, my point, circuitous as the path has been, we’re Americans. We protect each other when we can. Political commentary aside, that’s what the guy in the White House thinks he’s doing. Protecting us. I don’t think there’ll be a draft (not that they would TOUCH my brain-damaged butt) because you know what? When there’s a need, we’re there.
When there’s a need.
When I read my copy of the Constitution of the U. S. of America. I take what it means literally. Kind of like the 13 states did when they ratified it.
I have noted in this string where one person had made the statement that (income) taxes were unconstitutional. This is not true, the 16th amendment grants the federal government to collect this tax on income. The 2nd amendment states after a comma, “the right of the people to keep and bear Arms shall not be infringed.” It did not state, the right of the militia to bear Arms shall not be infringed.
This brings us to the 13th amendment. It clearly states that, “Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
I suggest to anyone to pick up a dictionary and start by looking up the following; involuntary, servitude, draft, compulsory, and so on for clarification in the meaning of this amendment. Then immediately read the amendment again. I think what the amendment says will become clear to you. You do not need to have a law degree to understand these words. Thank you for taking the time to read this.