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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