posted by Gerard Magliocca
I’ve been busy with a couple of projects (hence the dearth of blogging), but here’s an interesting chestnut. I was reading a book about Harry Truman that discussed a series of strikes in 1946 that threatened the economy. Truman eventually decided that he would draft the strikers into the Army if they refused to return to work and made this threat public. (The strike quickly ended.) When told that his plan was illegal, Truman essentially replied that the courts would sort that out. This was a preview of his decision to seize the steel mills in 1952, which led to the Court’s decision in Youngstown.
Why would selective conscription (if authorized by Congress) be unconstitutional? Presumably the answer is something like “Because the draft was being used as punishment for the exercise of a legal right.” But is that saying that conscription violates the Eighth Amendment when used as a punishment? Or that it is an improper legislative punishment (a bill of attainder)? Or something else? The result (that what Truman proposed was unconstitutional) must be right, but what is the right reason for that conclusion?