Conscription After Bostock, 1220 RIBJ, RIBJ, 69 RI Bar J., No. 3, Pg. 7

• Position: Vol. 69 3 Pg. 7

Conscription After Bostock

v.

Clayton County

No. Vol. 69 No. 3 Pg. 7

Rhode Island Bar Journal

December, 2020

November, 2020

Jerry Elmer, Esq.

Whenever the United States has enacted conscription, draft resisters and draft evaders have sought legal and illegal methods to avoid the draft.

The United States' first federal conscription law was enacted by the thirty-seventh Congress and signed into law by President Abraham Lincoln on March 3,1863, at the height of the Civil War.^[1] When federal enrollment (draft registration) officers came to cities and towns to register men, tens of thousands of men hid out in the woods so they could not be registered; at the time, they were called "skeedaddlers."^[2] After receiving draft notices, over 20% of actually drafted men simply refused to appear,^[3] but no-show rates were significantly higher in some places than in others: 30.6% in Wisconsin, 31.4% in Maryland, and a whopping 43.8% in Missouri.^[4]

And that's not all. Men stole draft records from enrollment officers at gunpoint, burned down draft offices with the records inside, and assaulted and even killed draft officers.^[5] (Thirty-eight enrollment officers were killed and another 60 were wounded in attacks from unwilling conscripts.^[6]) The New York City draft riots in July 1863, immediately following the enactment of the country's first draft law, were the worst riots in American history up to that point - or since.^[7]

When the Civil War ended, conscription in the United States lapsed. On December 18,1865, the first of the post-Civil War Reconstruction-Era Amendments was adopted. The Thirteenth Amendment barred "involuntary servitude."

In the later drafts that accompanied World War I, World War II, and the Vietnam War, some creative draft opponents (and their creative lawyers) tried arguing that conscription was an unconstitutional violation of the Thirteenth Amendment's ban on involuntary servitude. This was, of course, an argument that had not been available during the Civil War draft, because the Thirteenth Amendment had not been in existence during the Civil War. During World War I, this approach was tried by Donald Stephens and others.^[8] During World War II, the approach was tried by Jack Bryant Ryals,^[9] Edward C. Commers,^[10] and others. During the Vietnam War, this was tried by George

William Crocker^[11] and many others.

The argument that the draft is unconstitutional because it represents involuntary servitude in violation of the Thirteenth Amendment never worked - not once, not ever. Courts uniformly explained that the Thirteenth Amendment was meant to, and did, ban chattel slavery in the immediate aftermath of the Civil War that had been fought, in part, about the issue of slavery. Many of the courts that so held quoted a 1916 Supreme Court case, Butler v. Perry: This amendment was adopted with reference to conditions existing since the foundation of our government, and the term involuntary servitude was intended to cover those forms of compulsory labor akin to African slavery... [It] 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.^[12]

And, of course, these many courts were absolutely correct. The Thirteenth Amendment was meant to ban slavery. It was not intended to make conscription illegal. High school students learn this simple fact in...