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Selective Conscription

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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6 Responses

  1. Josh Chafetz says:

    Thirteenth Amendment? I would think that you could make a plausible claim that what separates conscription from involuntary servitude is that it is spread across the population using some sort of criterion that we don’t find suspect.

  2. Paul Gowder says:

    I think the bill of attainder idea is right on. The legislature doesn’t get to decree retrospectively that a certain class of people gets punished for what they’ve already done. The legislative power only operates prospectively and generally.

    Were I representing the draftees, I’d probably raise procedural due process and equal protection arguments as well. For PDP, the argument would be that such an enactment falls on the wrong side of the Londoner/Bi-metallic line between general legislative acts without PDP rights and individual/small-group determinations with. (There’s a distinct isomorphism between the attainder clause and PDP there.) For equal protection, I’d probably go with some version of what you characterize as an 8th amendment argument, i.e., that punishing people who exercise a legal right isn’t a legitimate government purpose, so the selective draft fails even rational basis.

  3. Michelle C. says:

    I definitely think that it would have been ruled as involuntary servitude. Which we can’t have in the land of the free.

  4. Sykes Five says:

    Classifying any form of military conscription as Thirteenth Amendment involuntary servitude would open a huge can of worms.

  5. Rob says:

    When looking into the whole “Conscription as Involuntary Servitude” I came across an interesting viewpoint:

    http://www.overcomingbias.com/2011/05/conscription-is-slavery.html

    What do you think?

    Also interestingly, according to a stranger on quora this paragraph of a 1918 decision by the supreme court is the only part that addresses the 13th Amendment:

    “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.”

    I’m no legal mind, but it doesn’t exactly seem cut and dry to me…

  6. brad says:

    What about if the government drafted only those with military experience (but not / no longer in any reserve program)? Or if the government were to draft only trained doctors, finding that unlike other military specialties such positions could not be adequately filed by volunteers?

    At least intuitively, the above hypos seem like they would fairly easily fit within the draft power.

    Other than perhaps immigration where courts have bandied about the term plenary, military affairs seem to be the place where the courts are least willing to give effect to the equal protection clause. Rostker v. Goldberg, 453 U.S. 57 (1981) was an intermediate scrutiny case, and the Court took the government’s explanation at face value. Any steelworker case would be under the far less rigorous rational basis test.

    Assuming there were no inter-branch issues (a la Youngstown) I think any winning legal argument would have to come from a determination that the draft was punishment rather than to meet a genuine military need (grounded in 13th amendment or BoA law rather than equal protection).