Author:Richard Danzig, Ira Nerken

Page 506

The power of the federal government to conscript may derive either from its power to raise armies or, more debatably, from its broadly interpreted power to regulate commerce. It is restricted by the THIRTEENTH AMENDMENT'S prohibition of involuntary servitude or, conceivably, by the Fifth Amendment's guarantee of liberty. The manner in which conscription is conducted must comport with a familiar range of constitutional protections, notably those that guarantee EQUAL PROTECTION and RELIGIOUS LIBERTY.

Though the nation has employed systems of military conscription during the CIVIL WAR, WORLD WAR I, WORLD WAR II, and for all but twelve months between 1945 and 1972, the interplay of these different constitutional considerations has been remarkably underdeveloped. Two hundred years after the Constitution was written, at least two fundamental questions about conscription remain unresolved. What is the power of Congress (or the states) to conscript for civilian purposes? How, if at all, is a conscription system obliged to take account of CONSCIENTIOUS OBJECTION ?

The ambiguity surrounding these questions derives in part from the fact that although the constitutionality of military conscription is well settled, the issue has not been settled well. In SELECTIVE DRAFT LAW CASES (1917) the Supreme Court reviewed the World War I military conscription statute and declared that it was "unable to conceive" how the performance of the "supreme and noble duty" of military service in time of war "can be said to be the imposition of involuntary servitude." Therefore, in its view, this contention was "precluded by its mere statement."

This terse comment establishes no conceptual basis for the analysis of later questions. Unfortunately, also, history is not a particularly helpful guide. The intention of the Framers is not clear. At the time of the Constitution, it was accepted that state militias could conscript soldiers, but the central government could not do so. At the same time, the Constitution gave the Congress the power to "raise armies" and it was widely recognized that it could not tenably rely on volunteers. On the basis of this evidence some scholars have argued that to conclude that conscription (as opposed to enlistment) was a power given to Congress is logical, and others have called this conclusion absurd.

Legislative history and judicial PRECEDENT in this first century of the Republic are similarly uninformative. When...

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