The Draft violates the 13th Amendment
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I have never seen a supreme court case or any form of precedence on this either way. The closest thing I could find to a precedent was Rostker v. Goldberg, which only dealt with the gender discrimination aspect. However, the 13th Amendment seems pretty clear, let’s look at what it says:
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation
Let’s break this down. Neither slavery nor involuntary servitude….shall exist within the United States.
So this says we can’t have slavery or involuntary servitude. Now as I am sure you noticed I left out a part:
except as a punishment for crime whereof the party shall have been duly convicted.
So there is an exception and that is if they are convicted of a crime. The draft is involuntary servitude as it forces people to do something “in the SERVICE of their country” against their will. What crime have they been convicted of? If they have been convicted of a crime then perhaps they could be drafted. Even indentured servitude to pay off debts as long as it is mutually agreed upon, would be allowable under this wording, but that is a whole different debate. The involuntary aspect is what is important. If you enlist, then you are giving your voluntary permission. This only applies to everything after the Civil war, as prior to that, there was no such prohibition as slavery was still legal, so anything written about that before this time would have been overruled by the 13th Amendment. So overall, my premise is simple and can be supported by the Constitution itself.
There actually has been a related case in Butler v Perry where something similar was discussed. In the case, a state law where able-bodied men are required to work to build and maintain roads when called upon by the state was challenged for violating the 13th Amendment. The Supreme Court defended the law by stating that the amendment was meant to abolish slavery, not serving in the military or being required to work on public works when called by the state. Serving in the military, even against your will, is not involuntary servitude. In the decision, the Supreme Court stated,
"[The 13th Amendment] introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state, such as services in the army, militia, on the jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers."
However, a more direct case concerning the draft was Arver v US during WWI when the Selective Service Act was imposed. In the majority opinion, the Supreme Court stated,
"Finally, 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 in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement."
Stating that because this war was instated by the people as they elected Congressmen to represent them and Congress is responsible for declaring war and have the power granted by the Constitution to:
"To raise and support Armies"
"To provide and maintain a Navy"
Imposing a military draft falls within these powers to raise and support Armies.
I look forward to Pro's response.
The US Constitution
BennyW forfeited this round.
BennyW forfeited this round.
1 votes has been placed for this debate.
Vote Placed by lannan13 1 year ago
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