Mandatory national service: creating generations of civic minded citizens.

• Author: Pauwels, Andrew M.

1. INTRODUCTION

   While on the campaign trail in the fall of 1960, Senator John F. Kennedy addressed students at the University of Michigan, proposing a novel idea:

   How many of you who are going to be doctors, are willing to spend your days in Ghana? Technicians or engineers, how many of you are willing to work in the Foreign Service and spend your lives traveling around the world? On your willingness to do that, not merely to serve one year or two years in the service, but on your willingness to contribute part of your life to this country, I think will depend the answer whether a free society can compete. I think it can! And I think Americans are willing to contribute. But the effort must be far greater than we have ever made in the past. (1) With this call to action, Kennedy launched the Peace Corps, (2) a federal program that continues to place thousands of Americans in service-work opportunities abroad. (3)

   While Kennedy evoked higher principles to draw young Americans on college campuses to action, young Americans on the same college campuses--and elsewhere--were publicly raging against a public duty: the military draft. (4) As the war in Vietnam ramped up, and more and more young American males were conscripted into the armed services, people asked more and more questions about the legitimacy--both constitutionally and practically--of requiring military service. While many proposed eliminating the draft completely, others proposed a broader and more creative solution: expanding service to create an obligation for all Americans. (5) While the scope of such proposals varied, the intentions were the same. None of these suggestions gained much traction, however, and calls for an expanded national service program faded, especially as increased hostilities in Vietnam distracted America's leaders. (6)

   In the late-1980s and early-1990s, the efforts of both Presidents George H. W. Bush (7) and Bill Clinton (8) led to the creation of AmeriCorps, a federal organization with goals similar to those of the Peace Corps, focused on domestic service. (9) AmeriCorps, and the many organizations under its umbrella, (10) have spiked in popularity, (11) attracting highly qualified young Americans and placing them in some of the most impoverished areas of the United States. (12)

   Despite the popularity of such programs, some scholars, mainstream media members, and politicians argue this is not enough, calling on the government to broadly expand the national service programs. (13) Many modest expansions of existing programs are met with little controversy. (14) However, a few have advocated for sweeping changes in the form of mandatory national service. (15) Merely mentioning mandatory national service can invoke calls of socialism and slavery, sparking pointed criticism regarding the merits and the constitutionality of such a program. (16)

   This Note will focus on the constitutionality of such a compulsory national service program in hypothetical form. While debate in the media has focused on the socio-economic and vocational benefits of a broad national service program, legal scholars have said little on the issue of whether such a program would even withstand the scrutiny of the Supreme Court. Although no court has addressed the issue, legal scholars in the 1980s briefly engaged in a dialogue regarding the validity of mandatory service. (17) This dialogue will serve as a good starting point, with a set of circuit opinions providing an additional analytical framework for what remains an open issue. This Note will argue that such a scheme, though unprecedented in scope and impact, would withstand constitutional scrutiny. Politicians, scholars, and--ultimately--voters must decide whether or not a program similar to that proposed by this paper should move beyond the hypothetical and become reality; such a normative argument, however, is beyond the scope of this Note.

   Part II will briefly describe the history of national service movements in the United States by focusing on two broad programs which preceded the wave of volunteerism sparked by the Peace Corps and AmeriCorps: the military draft and the Civilian Conservation Corps. Part III will analyze the Thirteenth Amendment prohibition against slavery, focusing broadly on the Supreme Court's jurisprudence before turning to specific applications of the Thirteenth Amendment: the military draft and mandatory "volunteer hour" programs in public high schools. In Part IV, this Note will propose and discuss three statutory schemes for making "mandatory" national service a reality and the constitutionality of each.

2. A HISTORY OF NATIONAL SERVICE IN THE UNITED STATES

   While mandatory national service has never been instituted in the United States, several statutory regimes have created broad programs with sweeping effects. While a detailed history of all service initiatives in the United States (18) is beyond the scope of this Note, a few examples will help frame the constitutional analysis.

   1. The Military Draft

      Compulsory military service--or, simply, a draft--is most likely what comes to mind for most Americans when they hear compulsory national service. Because the Vietnam War and the surrounding social turmoil are so engrained in our collective consciousness, it might be easy to assume that the draft has been an enduring part of the American military and national identity. This, however, is far from the truth. For roughly the first century of nationhood, the "regular army of the United States was little more than a token force" and Americans "despised conscription." (19) America won the Revolution using a combination of state militias and unprofessional volunteers, recently recruited, (20) and the young American nation relied on similarly constructed forces in waging its wars in the early nineteenth century. (21) The system exemplified "basic American conditions and values--localism, pluralism, non-professionalism, devotion to liberty, and a folksy egalitarianism." (22)

      Despite early calls from the likes of George Washington, (23) conscription or coerced service had no place in the American military until the Civil War, when both the North and the South enacted military drafts. (24) This invasion on liberty was not well received, with "widespread and violent resistance, especially in the North." (25) After the war's end, the draft came to a close. A draft was utilized again in World War I, but, much like after the Civil War, the draft ceased when the war ended. (26)

      Congress enacted a peacetime draft for the first time in 1940, albeit reluctantly, as World War II expanded in scope internationally; (27) in fact, it has been argued that the draft of 1940 "was justified only by the existence of an emergency approximating a war crisis, and it was generally expected that the restoration of normal times would bring the end of conscription." (28) In effect, the draft was less of a peacetime draft and more of a "pre-war" draft. Despite these short-term intensions, Congress continued to extend the selective service law after the conclusion of the war, and the peacetime draft became a part of the American military culture. (29) The draft continued--to much controversy (30)--through the Vietnam War. (31) In 1973, at the conclusion of that conflict, the draft was again suspended and the military returned to its all-volunteer roots. (32) For a five year period--from 1975 to 1980--the government also suspended registration for the Selective Service. (33) However, President Carter reinstated the registration requirement in 1980, (34) and the Military Selective Service Act (35) continues to make registration for the draft an obligation of all eighteen-year-old American males. (36)

   2. The Civilian Conservation Corps (37)

      The Civilian Conservation Corps (CCC) is perhaps the most successful and least controversial example of the federal government mobilizing a large portion of the population to perform nonmilitary service. (38) President Franklin D. Roosevelt oversaw the creation of the CCC within a month of taking office in March of 1933 as part of the New Deal. (39) To Roosevelt, the CCC served a dual purpose: putting people back to work to combat the Great Depression and preserving America's natural resources. (40) Affectionately known by some as "Roosevelt's Tree Army," (41) this unique collaboration between the Departments of Agriculture, Interior, Labor, and War put people to work on forestry, park maintenance, flood prevention, and other conservation programs. (42)

      The CCC specifically targeted a segment of the population hit hard by the Depression: young men. (43) Of the roughly 3,000,000 who served in the Civilian Conservation Corps between 1933 and 1942, eighty-four percent were "young, unmarried men between the ages of about 17 and 28," (44) The government provided camp-style housing, food, and clothing for the men, who were often working in remote parts of the country far from home. (45) In addition, to combat high levels of illiteracy among the men in the camps and to provide for meaningful activity in the evenings after they had concluded their work, the CCC installed academic programs in the camps. (46) Life lessons were also a crucial part of the CCC; the director of the CCC referred to the program as "a practical school where young men in their teens and early twenties are taught how to work, how to live, and how to get ahead. (47)

      With the coming of World War II, Congress dissolved the Civilian Conservation Corps; the war eliminated the justifications which had spurred the program's creation, as fifteen million Americans, most from the same pool the CCC drew from, were about to be called to serve in the military. (48) While programs at both the state and national level have attempted to recreate the success of the Civilian Conservation Corps, none could match the New Deal era program for its scope and impact. (49)

3. CONTOURS OF THE THIRTEENTH AMENDMENT'S PROHIBITION OF...