Two eminent scholars, Thomas Woods, Jr. and Kevin Gutzman wrote a book last year with a startling and disconcerting thesis. Their argument is that the Constitution is dead not just dying, and they identified a dozen ways—the dirty dozen—in which all three branches of the federal government have removed restraining elements from federal officials so they can do whatever they want! Number Eight is the power to draft and to say there is no constitutional power to draft runs counter to some conservatives’ patriotic instinct, but then it gets to the heart of what constitutes the American republic and its citizenry, the relationship between them and the extent of power legitimately exercised.

One could argue as William F. Buckley, Jr. did, that if government is entitled to require the people to complete twelve years of schooling then a year or so of labor is perfectly consistent. Indeed, we may well ask ourselves whether the federal government (as opposed to state government) has authority to mandate public schooling and the obvious answer is that it does not, albeit almost no one will stand up and say that today. If you concede of the power then ask yourself, why not sixteen years of schooling or even twenty? Why not one year of labor or perhaps ten, at community service and/or in the military? In one of the few instances where a post-Civil War Amendment actually reinforces Original Intent for the majority, the Thirteenth Amendment makes plain that "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." The military draft is nothing if not involuntary servitude, but not to worry if you haven’t any qualms—because as in so many other instances, the Supreme Court has given its approval and redefined it from being involuntary servitude (one’s private perspective) to being an exceedingly wonderful obligation (the Court’s pronouncement). Incidentally, the pronoun "their" in the Thirteenth Amendment refers to United States in the plural, exposing again the lie that we became a unitary national democracy as a result of the War Between the States.

There is no article or section contained in the Constitution in which it is written, that the federal government may take children away from parents or parents from their children and compel them to fight the nation’s wars. Even in declared wars and even in cases of invasion such as the War of 1812, this was never the case. Today when the presumption has shifted and turned towards such extraordinary power invested in a national government, the country no longer even declares its wars but is constantly at war and no one threatens invasion. The government of these United States was erected to keep a free people free, not to subjugate them and make them serve its own ends of empire building or as a Court might redefine it, extending democracy.

It was Lincoln who first raised "national forces" by means of the draft. The Chief Justice of the Supreme Court at the time rebuked the measure for being unconstitutional on numerous and substantive grounds. The War rendered his opinion very much beside the point as it were, and the Supreme Court did not consider constitutionality of the federal draft again until World War I. Amazingly, the Selective Draft Law Cases of 1917 upheld legislation that actually incorporated the National Guard and National Guard Reserve into service of the United States. This effectively converted the states’ self-defense organizations into federal agencies! Defendants in the cases had refused to present themselves for the draft ordered by President Woodrow Wilson. Some rural sections of the country rendered enforcement of the draft all but impossible, because of constitutional scruples and an instinct towards freedom—it wasn’t cowardice, since armed resistance to the draft was more likely and actually occurred.

The first constitutional precedent for a federal draft the Supreme Court could find was the Conscription Act of 1863—the law so powerfully criticized in Lincoln’s day. The law certainly did not follow normal constitutional processes and arguably took place during an existential suspension of the Constitution. The Court finally justified the draft, however, and not surprisingly, according to the post-Civil War Fourteenth Amendment! Chief Justice Edward White wrote that the people had elevated the significance of federal citizenship above that of state citizenship and conveyed with it the power of conscription. Since 1917 the federal government merely assumes it has the power to draft men into the armed forces. Furthermore, there is no legal distinction remaining these days to even exempt women.

Ronald Reagan condemned conscription and said that it "rests on the assumption that your kids belong to the state. If we buy that assumption then it is for the state—not for parents, the community, the religious institutions, or teachers—to decide who shall have what values and who shall do what work, when, where, and how in our society." Exactly. Maybe that’s why recent administrations silently reinforce the constitutionally fallacious, and anti-republican precedent. Because even though the draft ended amidst protest in 1973, it gives ambitious chief executives and progressive socialist congress people, particularly in times of crisis, the philosophical wherewithal and basis of unlimited government power over United States citizens. It makes grotesque expansion of government spending programs far easier too. And anyway, if the government can keep you twelve years in school, a few more years of involuntary servitude is really just a continuation of your excellent education.

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