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.

Should women register for the draft? Is that the right question to ask?

(Getty photo)

The top generals of both the Army and Marines testified recently before a Senate panel that women — now that they are eligible to serve in all aspects of the military — should be required to register for the draft, according to The Hill.

 

Apparently the question of whether anyone should be required to register for the draft is a settled topic, since no one even brought it up.

The clear words of the 13th Amendment don’t mean what they say:

“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.”

If you thought an amendment of the Constitution altered the original, you will be told by the experts that you are wrong and that the Constitution authorizes Congress to “raise and support Armies,” though it doesn’t specify just how.

You see in 1918 the Supreme Court in Arver v. U.S. waved aside any argument against conscription by simply saying any argument against it was inconceivable:

“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.”

I seem to recall a few being drafted to fight in Vietnam, though the Gulf of Tonkin Resolution was never really a declaration of war. Being declared by the great representative body of the people wasn’t even a prerequisite.

In fact, even arguing that conscription violates the 13th Amendment is forbidden.

In 1919 Justice Oliver Wendell Holmes said that distributing pamphlets making the argument was tantamount to “falsely shouting fire in a theatre and causing a panic” and constituted a “clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

Arguing the 13th Amendment won’t get you out of jury duty either.

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master — that’s all.” — Lewis Carroll

Words are such fragile vessels unsuited to carrying such weighty ideas as liberty and freedom and self-determination, when the master thinks otherwise.

And, if you thought the Constitution was written with the intent that government should serve men, you are right. It’s a cookbook.