Editorial: Universal public service has constitutional flaw

For the past year a national commission has been studying the issue of whether all young Americans should be required to perform public service — either military or some form of civilian service — and whether women should be required to register for the draft as men are currently required to do, even though the draft has not been used since 1973.

The National Commission on Military, National and Public Service is chaired by former Nevada Congressman, emergency room physician and Army Reserve Brig Gen. Joe Heck. He was interviewed on NPR public radio this past week about the status of the commission’s endeavors.

“For the first time in our nation’s history, a commission was tasked to holistically and comprehensively review the Selective Service system along with Military, National and Public Service. It is truly an historic opportunity,” Heck said on the air.

On the topic of whether women should register for the draft, he said, “People have very definitive opinions on this issue. It’s not like when you ask the question, they have to take a moment to think about it. It’s a visceral response. It’s either, yes, they should have to register, it’s a matter of equality — or no, they should not have to register because women hold a special role in American society. I mean, that’s what it basically comes down to. I don’t think there are many people that are on the fence when it comes to deciding whether or not women should have to register.”

Heck said the commission has not yet come to a decision on this aspect of the commission’s mission.

But beyond the draft, Heck signaled a desire to require universal service of some sort, “Our goal is that there should be a universal expectation of service, that instead of the person serving being the odd person, it’s the person who doesn’t serve is the odd person. So that within a generation or two, every American is inspired and eager to serve.”

Fourteen more public hearings are planned, with a final report and recommendations due in a year.

There might be one thing the commission should take into consideration before making its final recommendations. That would be the 13th Amendment. Passed after the Civil War, that amendment states categorically: “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.”

Involuntary servitude.

In fact the 13th Amendment was used during World War I — ineffectively as it turned out — to argue against conscription itself as involuntary servitude.

Charles Schenck was convicted under the 1917 Espionage Act for distributing pamphlets urging resistance to the Selective Service Act. The pamphlet on its first page quoted the 13th Amendment.

Justice Oliver Wendell Holmes wrote in his 1919 U.S. Supreme Court opinion that was unanimously supported by the court: “In impassioned language, it intimated that conscription was despotism in its worst form, and a monstrous wrong against humanity in the interest of Wall Street’s chosen few. It said ‘Do not submit to intimidation,’ but in form, at least, confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed ‘Assert Your Rights.’ It stated reasons for alleging that anyone violated the Constitution when he refused to recognize ‘your right to assert your opposition to the draft,’ and went on ‘If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.’”

Holmes famously declared this rhetoric was a “clear and present danger” and was tantamount to “falsely shouting fire in a theatre and causing a panic.”

The Espionage Act of 1917 is still on the books, but so is the 13th Amendment. Mandatory public service does appear to be a lot like involuntary servitude. Voluntary service, of course, should be encouraged.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

6 comments on “Editorial: Universal public service has constitutional flaw

  1. Bob Coffin says:

    This Commission is news to me and there is too much noise to hear its signal these days. I favor Universal Service so now I had better read what they have done so far. I enlisted in the Army Reserve in 1961 after high school “to get it (draft) out of the way.” Best move I ever made.

  2. Steve says:

    I joined the Air Force. It was exactly what I needed and the Air Force benefitted from my service.
    This is a good exchange for people who are still young enough to not know how to live life but old enough that they have to start.
    You made clear, the draft is not considered involuntary servitude.
    I think this is because it is not for life and draftees are paid the same as volunteers.
    The same could well be said for so called universal public service.

  3. Yes, the courts have given conscription a pass, but the plain language is still in the Constitution.

  4. Steve says:

    Lifelong.

    That is the operative condition. Not whether it be voluntary or involuntary. One cannot voluntarily become a slave by contract either.

  5. Involuntary is involuntary, whether a day or lifetime.

  6. Steve says:

    The 13th was about enslavement; not temporary, paid, service to country.

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