Dispatches from the Creation Wars

The Unconstitutionality of Forced Service

I agree completely with Ilya Somin’s series of posts on compulsory national service plans, which seem to be proposed by candidates in every Presidential election cycle, and the military draft. As Somin notes, calls for such programs come from all sides of the political spectrum, including Charles Rangel, Rahm Emanuel, John McCain and William F. Buckley. A long excerpt below the fold:

Be that as it may, there is a deeper moral issue here: mandatory national service is not just an inefficient policy proposal, it is forced labor. And forced labor on a massive scale. Most proposals would require millions of young people to do compelled work at the behest of the government for one to two years each. Even in the unlikely event that mandatory national service could be shown to provide benefits that outweigh its costs, it would still be morally repulsive. It would still strike at the heart of the liberal idea that each person owns his or her own body, and cannot justly be compelled to work for others merely because it might be convenient to do so. Short of outright slavery or the murder of innocent people, it is hard to think of anything that violates individual liberty more clearly than forced labor.

The rhetoric of “national service” obscures the true nature of the idea, perhaps intentionally. It suggests that forced labor at the orders of the government (“national service”) is somehow morally different from forced labor at the behest of other private individuals. But there is no intrinsic moral difference between the two. Yes, forced labor for the government might benefit the nation (though that result is by no means guaranteed). But so could forced labor for a private enterprise. Indeed, even outright slavery was regularly defended on the grounds that the labor of slaves produced valuable benefits to society as a whole.

And yes, the same thing applies to a military draft. The Supreme Court has upheld the government’s authority to require military service (Arver v United States in 1918) despite the clear language of the 13th amendment forbidding involuntary servitude, but as Somin points out, it did so in one of the most weakly reasoned rulings the Court has ever handed down:

The main judicial precedent going against my view is the Supreme Court’s 1918 decision in Arver v. United States, which upheld the constitutionality of the military draft. In my view, however, the plain text of the Constitution trumps any judicial decision, even though lower courts have little choice but to obey flawed Supreme Court precedents. Moreover, Arver’s analysis of the Thirteenth Amendment issue is extraordinarily weak. Here’s all the Court had to say on the subject:

Finally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation as the result of a war declared by the great representative body of the people can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement.

There is no real argument here, just a bald, unsupported assumption that the Court’s view is obviously right. In my view, it is the claim that forced labor is not “involuntary servitude” merely because it serves a “supreme and noble duty” that is “refuted by its mere statement.” The fact that forced labor may help achieve important objectives does not make it any less involuntary. And the Thirteenth Amendment includes no exception permitting involuntary servitude so long as, in the opinion of the Court, it discharges a “supreme and noble duty.” Arver’s non-analysis of the Thirteenth Amendment is an embarrassment to legal reasoning and should be overruled as soon as the issue arises again. Since we don’t currently have a draft or a mandatory national service program, and have not for almost 35 years, there is no serious argument for retaining this flawed precedent because of longstanding reliance interests or for the sake of “stability.” In any event, I’m not sure even a very great reliance interest should be enough to set aside so vital an individual right as freedom from forced labor.

I agree. No one who calls for a draft or any sort of compulsory national service plan has any chance of getting my vote for any office.