Is the Selective Service System unconstitutional?

[her209]

The 13th Amendment states:

Section 1.
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.

Section 2.
Congress shall have power to enforce this article by appropriate legislation.

Passed by Congress January 31, 1865. Ratified December 6, 1865.

If the sole purpose of the SS is to keep track of the eligible males in the event of a draft, why isn't it considered "involuntary servitude"?

 

[IndyColtsFan]

The 13th Amendment states:


If the sole purpose of the SS is to keep track of the eligible males in the event of a draft, why isn't it considered "involuntary servitude"?

The court has ruled that it does not constitute involuntary servitude.

There has also been some question raised about the draft in regards to the 13th Amendment. Surely the draft, for at least some, constitutes involuntary servitude, prohibited by the 13th. The only exception the 13th contemplates for slavery or involuntary servitude is as a punishment for a duly convicted crime. However, the courts have ruled that the intent of the 13th was never to abolish the draft, and that serving in the military, even against your will, is not involuntary servitude.

Source here.

 

[ProfJohn]

Constitution also says:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

 

[her209]

The court has ruled that it does not constitute involuntary servitude.

Source here.

If its not "involuntary servitude", what is it?

 

[IndyColtsFan]

If its not "involuntary servitude", what is it?

Hey, I'm not saying I disagree with you, but the court ruled differently and the link I provided delves into their logic a little more.

 

[nobodyknows]

Constitution also says:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

Since they never mentioned a draft or conscription and limited it to two years I think a damn good argument could be made that they never intended for a draft, but were authorizing Congress to make the funds available to hire the soilders to raise an army, navy, and equipment.

But times change and I fully support the SS and the use of a draft if needed.

 

[Carmen813]

More important question: if we are all equal, why aren't women required to sign up?

 

[her209]

Constitution also says:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

Not to digress from the OP, but nothing there about an "Air Force".

 

[ShawnD1]

Makes ya wonder why the constitution even exists since it can be avoided whenever it causes a problem. That's not just today. The people who made the thing allowed for ways to change it.

 

[dfuze]

More important question: if we are all equal, why aren't women required to sign up?

I have often wondered the same thing.

 

[IndyColtsFan]

More important question: if we are all equal, why aren't women required to sign up?

The link in my post a few posts up addresses this point:

The restriction of the draft to just men was challenged in the Supreme Court in Rostker v Goldberg (453 U.S. 57 [1981]). In this case, men brought suit against the SSS, because women were not included in the draft. The Supreme Court ruled against the men, stating that the sole purpose of draft registration is the accumulation of a pool of names of eligible men to serve in combat. Because women were excluded from combat by the armed services, the draft registration as it stood met the need. The Court also said that since the Congress is given exclusive constitutional authority to raise armies, it was disinclined to overrule Congress on this point. The last time the SSS notes that the issue was taken up was in 1994. It concluded that though women, at that time, made up 16 percent of the armed force personnel, and the combat roles for women were expanding, the need to register women for the draft was still not sufficient. It noted that such expansion might be prudent in the future.

 

[piasabird]

Then by the same reasoning filling out a census would be considered the same. How about Voter registration as well?

This is the stupidest post I ever saw.

 

[nonlnear]

Since they never mentioned a draft or conscription and limited it to two years I think a damn good argument could be made that they never intended for a draft, but were authorizing Congress to make the funds available to hire the soilders to raise an army, navy, and equipment.

But times change and I fully support the SS and the use of a draft if needed.

I completely agree with you on this point. There was a better line of argument available to the court, and it's unfortunate they didn't use it: SS is not involuntary servitude until one is actually compelled to serve, so in times of peace there is no issue. In times of war it could be argued that a draft is a reasonable tool for emergency war powers to invoke. Thus the Constitutionality of a draft would be contingent on the legality of whatever special war powers the executive has. I think that would have given a much better feel to the ruling, even if the effect was the same. It would the court embarrassing itself by making the bizarre claim that "involuntary servitude is not involuntary servitude".

 

[werepossum]

Haven't you heard? Nothing government does is unconstitutional; it is all "promoting the general welfare".

 

[CADsortaGUY]

There are many things that are done by the Feds that are "Unconstitutional". Some have been ignored(or codified) by the courts and others have yet to be challenged.
IMO, just because there are other things the Feds do that go against the text AND intent of the Constitution does not mean present or future concerns are invalid.

 

[Zargon]

Then by the same reasoning filling out a census would be considered the same. How about Voter registration as well?

This is the stupidest post I ever saw.

don't get me started on the census

so much $$ spent just to track the jobless

 

[Thump553]

There are many things that are done by the Feds that are "Unconstitutional". Some have been ignored(or codified) by the courts and others have yet to be challenged.
IMO, just because there are other things the Feds do that go against the text AND intent of the Constitution does not mean present or future concerns are invalid.

Back forty years ago when the draft meant a whole lot more than putting your name in a database you "conservatives" were vehemently defending it. My how times have changed.

BTW the constitutionality of the draft is an absolutely settled issue. You'd need an activist Supreme Court willing to overlook and throw out over a 100 years of established decisions and replace it by their interpretation of the Constitution in order to reach a different conclusion (satire intentional in case you missed my point).

 

[rudder]

Makes ya wonder why the constitution even exists since it can be avoided whenever it causes a problem. That's not just today. The people who made the thing allowed for ways to change it.

The government has the power to make people fight a war. But many young men and women have serious questions about whether it is right to take part in war. That may mean that they are conscientious objectors. They may not know the term, or that there is such a thing as conscientious objection to war.

Fortunately, there is a long tradition that is getting stronger as people with all kinds of backgrounds share the conviction that war is wrong. The Constitution gives the government the power to raise an army and people can be drafted to fight. But, there is an established right to conscientious objection dating from before the Constitution which has been recognized during the periods that people were forced into the military.

Often the beliefs of these objectors to war are well thought out, showing study and detailed knowledge. Sometimes their convictions are simple and uncomplicated. Many have their beliefs as part of their religion. Others have come to their beliefs on their own.

They all have a right to have these beliefs in opposition to war and should be supported in them. They are conscientious objectors (COs) whether or not the government says so.

Once people hear about conscientious objection, they want to know what is necessary to qualify as a CO with the government. That process is sometimes hard. The rules are fairly specific (but not always fair). However, if COs are properly prepared, NISBCO believes they will be recognized.

What Does the Government Say?

"Nothing contained in this title shall be construed to require any person to he subject to combatant training and service in the armed forces of the United Slates who, by reason of religious training and belief, is conscientiously opposed to participation in wsr in any form. . . the term `religious training and belief' does not include essentially politicsl, sociologicsl, or philosophicxl views, or a merely personal moral code. Any person. . . whose claim is sustained by the local board shall, if he is inducted into the xrmed forces. . . be assigned to noncombatant service. . . or shall, if he is found to be conscientiously opposed to participation in such noncombatant service. . .perform ... civilian work contributing to the maintenance of the nxtional health, safety, or interest. . . "-Section 6(j) of the Military Selective Service Act.

What Does That Mean? "Religious"

The statute (above) says that no person "who by religious training and belief is conscientiously opposed to participation in war in any form" can be required to kill or train to kill in the military. CO provisions like this have been a part of American law since the time of the colonies.

United States courts have interpreted the meaning of religion according to the first amendment of the Constitution. That amendment guarantees the right to practice one's religion and guards against the government favoring a particular religion over another.

For a few years the legal recognition of conscientious objection was limited to those who belonged to religions that believed in a "supreme being." This wording favored certain religions over others.

Earlier, during World War I, the government would only give CO status to people who were members of "peace churches," such as the Society of Friends (Quakers), Mennonites or Brethren. But, this has changed.

In 1965 and in 1970 the Supreme Court ruled that the words "religious training and belief" must now be interpreted to include moral and ethical beliefs that have the same force in people's lives as traditional religious beliefs.

So, the word "religious" here refers to the nature of a person's training and beliefs. That means that the law considers many sincere beliefs "religious" even if they are not a part of what most people call a "religion."

Now, you don't have to belong to any particular religion to qualify as a CO. In fact, you don't have to belong to any religion at all.

Almost all Christian religions, Judaism, Buddhism, Jainism, and many other religions have teachings that support the CO position. If you follow the teachings of a religion, you can use that fact to help show that you qualify for a CO classification. But, remember, mere membership in a religious body does not qualify; a CO claimant must show that he or she personally and truly holds the beliefs.

If you do not follow the teachings of a formal religion you must show the government that your beliefs are like a religion to you and that you hold them sincerely.

To summarize: CO claimants with the Selective Service System and in the armed forces will have to "demonstrate" their moral, ethical, or religious belief in opposition to "personal participation in war." They must also show that their beliefs are sincerely held.

"

 

[Atreus21]

More important question: if we are all equal, why aren't women required to sign up?

Equal rights does not equate to real equality. Men are not women, and vice versa.

 

[Brainonska511]

Equal rights does not equate to real equality. Men are not women, and vice versa.

Yes, but there are roles in the military that women can serve equally well in. Plenty of support roles that need to be filled as well as just combat roles.

 

[Anarchist420]

Yes it is Unconstitutional, by the 9th, 10th, and 13th Amendments. But I'm sure Obama will invoke the draft again. I'll be surprised if he doesn't do so within the next two and a half years.

 

[ProfJohn]

Not to digress from the OP, but nothing there about an "Air Force".

Ever notice that you can be drafted into the Army or Navy but not the Marines or Air Force?

Perhaps this is the reason.

 

[Atreus21]

Yes, but there are roles in the military that women can serve equally well in. Plenty of support roles that need to be filled as well as just combat roles.

Agreed, but one could certainly argue that in a war, two things are reasonably certain:

- If a draft is necessary, it's because combat roles are the most needed.
- Men are better than women at that (generally).

 

[Brainonska511]

Agreed, but one could certainly argue that in a war, two things are reasonably certain:

- If a draft is necessary, it's because combat roles are the most needed.
- Men are better than women at that (generally).

Well, then you could argue that men can be pulled from support roles to combat roles and women could fill those spots.

Not all men drafted would be going to combat positions anyway. There are more support troops to compared with combat roles - ~7:1 support:combat.

 

[WHAMPOM]

The 13th Amendment states:


If the sole purpose of the SS is to keep track of the eligible males in the event of a draft, why isn't it considered "involuntary servitude"?

It's not a punishment, it's a reward for being a US citizen.