Draft and 13A

The decision to change the combat restrictions for women (the details still under advisement; see here for some good discussion) has led some to discuss the draft, including current doctrine that women can be selectively exempt. As suggested here, the original ruling here was questionable when decided, more so now with a stricter concerns for gender equality and different military needs.

The argument that the draft itself is clearly unconstitutional pursuant to the Thirteenth Amendment is a lot weaker.  I had a back/forth with a couple people at that blog over this issue, leading to a lot of heat since it seems so obvious, putting aside that the draft is not currently seen as "involuntary servitude" as that term is used in the amendment not only by the USSC but also the general public.  The term has a certain meaning and various traditional duties to the state is seen as quite different.

Utilizing the language of the Ordinance of 1787, the Thirteenth Amendment declares that neither slavery nor involuntary servitude shall exist. This amendment was adopted with reference to conditions existing since the foundation of our government, and the term "involuntary servitude" was intended to cover those forms of compulsory labor akin to African slavery which, in practical operation, would tend to produce like undesirable results.

So noted a 1916 ruling that upheld a traditional road work requirement that applied equally to adult males of a certain age. In other words, the terms of the Thirteenth Amendment has a certain meaning, and like the Heller ruling said as to the Second Amendment, simply taking a literal interpretation of them is inappropriate. I am sympathetic to a liberal reading of the amendment all the same, including honoring the broad spirit of the terms, including the sort of things that were covered. So this application to abortion is very sensible and it might even be seen as a problem here -- serving as road labor has a forced labor taint to it that jury duty or compulsory education does not. 

no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state, such as services in the army, militia, on the jury

Contra to a concern on the thread, I am not one to be, um slavish, to history alone here.  In the old days, motherhood could have been seen as a duty to the state in some respect, making abortion abolition appropriate. But, there is clearly some specific context here, and a strict libertarian reading is fictional.  Such literalism comes up from time to time online and in discussions,  the person at time seeming to think the question has not been talked to death. Thus, one person couldn't see how personal possession of drugs (not even making an exception for medicine) can without totally being arbitrary or prejudicial not be an aspect of a constitutional right to privacy if sexual freedom is honored.  Or,  if we allow same sex marriage, what about incest or polygamy.

The questions have a germ of truth since going the next step often is reasonable, even if the status quo is as well.  Take the draft.  Putting aside the Selective Draft Cases (rightly stated as conclusionary by the OP), there has been a long acceptance AND opposition to it, in part because some see it as a type of servitude.  The Second Amendment underlines that the need to serve in the militia, which can also be dangerous in certain situations, is not of the same caliber -- consider something from the 19th Century cited in Perpich v. DOD, a ruling curiously not cited by the majority in Heller:

Lexicographers and others define militia, and so the common understanding is, to be 'a body of armed citizens trained to military duty, who may be called out in certain cases, but may not be kept on service like standing armies, in time of peace.' That is the case as to the active militia of this State. The men comprising it come from the body of the militia, and when not engaged at stated periods in drilling and other exercises, they return to their usual avocations, as is usual with militia, and are subject to call when the public exigencies demand it.

Jury service is of a similar caliber.* The draft to the armed forces is closer to servitude and up until at least the Civil War, a federal draft in that respect was quite controversial in some quarters up to the top. On the other hand, especially after over a hundred years of history, it simply is not the sort of "involuntary servitude" that we usually consider the concern of the amendment. Forced pregnancy, which is quite literally forced labor with slavery implications (as slave women could tell you), is not quite seen as it either, which is why that even many pro-choice people do not quite accept the application.  I think the case is mixed.

The draft is clearly a sort of involuntary servitude for a span of years and would have threatened many in 1776 as an act of tyranny for which unfree people served as cannon fodder for the king. This would be true even if the people could be said to have agreed to it via the Parliament (to the degree that even worked for the virtually represented colonies). But, today, if our representatives are going to authorize wars, it is valid to argue there is a general duty to fight in them. Quite true any draft in practice will be inequitable, but women in combat and the end of DADT underlines the advancements in that area just in the last few years.  Also, though it's not likely to happen, if we actually had a draft, I would support a broad civic responsibility, to address the needs of the public and those who are conscientious objectors, broadly defined. 

Trusting in some select few will lead to various problems, including a weaker connection to the campaigns and a select view favored by the actual fighting men and women.  After all, the armed forces clearly lean conservative, a result of the military tradition of certain areas of the country, not just the nature of the fighting force itself.  A concern was put that the draft would lead to use of people as cannon fodder.  As someone noted, if that was the aim, changing incentives will bring more people in for that purpose. Many already join in part for fiscal benefits, some non-citizens doing so for hope of citizenship. And, looking at history, including the Civil War (where the draft came later), not really sure if that as compared to other factors influenced how to use troops.

Anyway, I'm inclined to not think the draft into the armed forces violated the 13A and that it could be an appropriate "necessary and proper" means to fill forces in question.  Also, though the above suggests its value even in other contexts, the draft has been used carefully over the years. It has been used to call up the people as a whole only in limited cases where there is a serious need, where the usual limited membership of the armed forces would not do the job.  So, a small standing army was in place to guard the borders and such with the militia serving as a limited means to guard against invasions as well but the Civil War needed manpower that a voluntary call-up could not offer.  Ditto certain 20th Century conflicts.

It is ultimately a political question to determine how this serious threat to liberty, even if it is not accepted as an illegitimate sort of involuntary servitude (I don't see it that important if we see it as a type but an acceptable exception or to simply say it is not the sort covered, though some might ... the 1A says "no" ... are we to say "no" means "yes" since libel is "speech"?).  So, before we do draft people for foreign wars and such, it better be damn necessary.  OTOH, perhaps that should be true regardless, especially given many a person didn't join the NY National Guard with the expectation to repeated stints in Afghanistan.

Anyway, I think the concerns about the draft are quite reasonable, but still think it is simply not obvious that the 13A is violated.  Other things of a forced labor character are clearly allowed, even though the amendment only (unlike most other amendments) lists one exception.

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* Some libertarians wish to get around this by a means of voluntary jury service, but  the value of the institution is watered down when it becomes a select group.  The whole point here, as well for the militia, education and arguably the draft into the armed forces is to state a general duty of citizenship that balances out general benefits.  The general nature has various values, including to provide a "cross section of the community."