The American military should not have "standards" for recruitment

Military service should be the right of every citizen who fulfills the conditions for full citizenship, i.e. has the right to vote.

Those who are too disabled to make a useful contribution should still be allowed to serve a term, if they so wish, perhaps in some sheltered situation. (During WWII, Communists were sent to peel potatoes in the Aleutian Islands.)

I know this will arouse the ire of people serving in the miltary, who don't want to become a dumping ground for society's failures and inadequates. Nonetheless, we should implement this policy. The military will have to deal with a complete cross-section of society, just as the public schools do. And drill sergeants, as I recall, have resources denied to school teachers.

At the same time, we must prevent the "victim" culture from spreading any more deeply into the military. Political Correctness in military situations can be deadly -- in civilian life, we can pretend that a certain person who is of the "right" sex or race is up to the job, even while privately knowing that this is a fiction. But there are some jobs where this polite pretence can be fatal.

Traditionally, military service has been a route into civilized manhood for a certain stratum of young males who do not fit into the usual high school to job stream.

An old friend of mine was one of these: a Hobson's choice at age 17, presented to him by a merciful judge, sent him into the Marines. He was not the best Marine the Corps ever had; and perhaps he would have grown out of his youthful propensities anyway -- but he became a model citizen after his time in the Corps (well, not from the conservative point of view -- he spent some time trying to organize farm workers in the Valley in South Texas into the United Farm Workers -- but we can forgive him for this).

The right to serve your country should be like the right to vote.

in civilian life, we can pretend that a certain person who is of the "right" sex or race is up to the job, even while privately knowing that this is a fiction.

So you think that sex and race determine what jobs a person can do?

Why am I not surprised...

edited to add... and from your final analogy, "The right to serve your country should be like the right to vote," the implication is that you think the right to vote should be restricted based on sex or race, since you clearly think that what jobs a person can do to "Serve their country" should be.

*thumbs up, with a wink* Right on, Doug. Really.

Well I truly disagree in this. The government has civilian jobs available where one can serve the country. The military is a fighting force, where everyone should be able bodied and able to fight to defend themselves in a combat situation. Mental and physical handicaps are just that to any fighting force, a HANDICAP.

(I am assuming the OP was serious and not sarcastic)

I am more that willing to provide service; as a matter of fact, I did for my entire working life prior to retirement. I taught in public schools, dealing with many challenges with few resources. I am still serving during retirement - on a community board, working in a free food distribution program. I do not, nor did I ever, want to "serve" in a killing machine. I do not want to kill any one, I do not want to know how to kill any one. I am not afraid that someone is going to kill me.

OK, that's my point of view on the topic, thank you very much.

Talk about not being my field! But from what I've read, the following seems not too crazy:

Modern warfare is a kind of industrial activity that requires specialized equipment, specialized training.

People who claim to know about such things usually say that success in combat requires flexibility, the ability to think on ones feet, resourcefulness, cunning, persistence, intelligence, stamina and a whole host of mental and physical qualities not equally distributed throughout the population.

There may be reasons to offer the honor of service to as wide a spectrum of the population as possible, but if you want a win a war, the people out where the rubber meets the road need to be the best you can manage to recruit.

I'd go a different route, and ask that everyone commit to provide 1 year of service between the ages of 17 and 23 and 1 year of service between the ages of 60 and 70. Then I'd give people lots of options for service, including but not limited to the military - if you don't find what fits between 17 and 22, you get assigned from 22 to 23, and if you don't find what fits between 60 and 69, you get assigned from 69 to 70.

It's more of a free-market approach. But once you are dealing with an obligation rather than a right, you aren't creating a military that gets overwhelmed by the bottom of every class.

It's not that the military can't use people of all skill sets and abilities - it's that the military has particular shortages and needs in areas that require higher level skills or abilities.

>6 A_musing: How would you justify such an obligation? In other words - where does the state get the legitimate authority to demand such a thing of me?

Philosojerk: You misunderstand me. (Assuming you are being serious, which I doubt, since you are inferring conclusions from what I say which are diametrically opposite to my intentions. By the way, I would be interested to see if anyone else has drawn the same conclusions as you have.)

I am talking about a situation where someone gets a job, or a place at university, because they are of a particular race or sex, rather than because they are the most qualified for it according to objective criteria. You may not be aware that this happens. When this occurs, the polite (Politically-Correct) reaction is to pretend that the person got the position based on objective merit, even though everyone knows otherwise.

ReadaFew: There is a strong argument to be made for your point of view. If in fact what I am proposing would seriously weaken the military, then we should not do it. But please notice that when the military was racially integrated, and later, sexually integrated, the people who proposed it did not do so because they thought it would strengthen the military -- in fact, I suspect a lot of them were anti-military. And the sexual integration of the military has almost certainly weakened it, for the reasons you put forth, since we have to pretend that women are the same as men. And yet, it has not weakened it significantly. In any case, I am not proposing that, for instance, someone who is blind be allowed to serve in a combat position -- only that they be allowed to serve in the military. (As I explained in my original post, in fact.)

Maggie: Military service is something different. It's not just that you risk your life, but that -- unlike being a policeman or fireman, where you also risk your life -- you can't just quit if the going gets tough. Thus we rightly accord our military a special ration of esteem.

A nice, decent, civilized society, with schools and charities like the ones you worked in, requires an efficient killing machine to protect it. If it doesn't have one, it won't last long. Of course, no one is asking you to do the killing that you benefit from. But those who wish to risk their lives in the service of their country, in the unique and special way that military service allows, should be able to do so.

ModalUrsine: Your argument is basically the same as ReadAFew's, and is the only good argument against my proposal. It's the argument some conservatives make against women in the military. It would be valid, if I said that anyone should be allowed to serve in any position regardless of his suitablility for it. But I didn't.

>7 philosojerk: A fascinating constitutional question.

I would tell you that I believe the state has the authority under existing jurisprudence (for example, the Japanese Internment cases) but that I also believe the cases establishing that authority were wrongly decided. Essentially, the line of cases holds that there are rights that the state has as a sovereign that are super-constitutional. Some of the recent Guantanamo related caselaw may be starting to wear away at those cases. The constitutionality of a draft seems to be generally accepted (I haven't checked the cases); it is the idea of extending that more broadly to service as a whole. The 13th amendment prohibiting slavery has been ruled not to limit the draft (during WWI).

As unworkable propositions go, I prefer mine to Doug's. But it probably would require a constitutional amendment, and it would be hard to draft such an amendment without opening the door to all sorts of disagreeable things. But universal service would probably also cut back significantly on the saber-rattling; I believe the draft did more to end the Vietnam war than anything else.

We should not have a draft. We should simply restrict full citizenship -- mainly, the right to vote -- to those who have served in the military.

A nice, decent, civilized society, with schools and charities like the ones you worked in, requires an efficient killing machine to protect it. If it doesn't have one, it won't last long.

List of countries without armed forces

Granted, some of these places have peacekeeping services and coast guards, or a bargain with another country to take care of it if need be. But having that instead of a standing military and remaining neutral in conflicts is a long way from having an "efficient killing machine," in my opinion.

Although, I do agree that if the U.S. had mandatory military service for everyone, it might prevent the U.S. government from getting us involved in causes that most people don't believe in. If everyone were forced to serve in Iraq, I think U.S. citizens would have told the government to shove it a long time ago.

9:I would tell you that I believe the state has the authority under existing jurisprudence (for example, the Japanese Internment cases) but that I also believe the cases establishing that authority were wrongly decided.

You believe those cases were wrongly decided, and yet you believe it is moral and right to have compulsory military service?

Real free-market approaches do not deal in obligations. There is not much choice in slave labor.

>9 A_musing: OK. You are taking the question from a practical legal perspective - which is OK, and interesting. I was actually asking the question from a theoretical perspective, in which case the question can actually be extended to, "where does (or would) the Constitution get the legitimate authority to demand such a thing of me?" if in fact we were to amend the Constitution to allow such a thing. My question is just a more specific version of the question as to where political authority comes from in the first place - what justifies it, and why am I obligated to obey it? This question is in many ways easier to answer when my obligations to the state are minimal and more difficult for me to deny receiving an overall benefit from. The more obligations you impose on me, however, the more difficult of a time you're going to have justifying the form of the state which you propose. This is especially true if you're going to sustain any claims to self-ownership.

Of course, this is a political discussion group, and not a philosophy one, so maybe I'm way off topic with all that.

Coming back to the constitutional rather than the theoretical question, in terms of current American jurisprudence I think you'd be hard pressed to find case law supporting the authority to demand such a thing. You reference the Japanese internment issue, which was decided by the Koramatsu case, but most legal scholars would not say that this case provides ample precedent, but rather, that in this case the wrong decision was made. I'm a little rusty on my con law, but I actually think there are later decisions which directly imply as much. (Note that I can't back up this last claim without doing more research on the matter than I'm inclined to right now.)

edited to insert the word "overall" in the first para.

OK, Doug - you say no one will ask me to do the killing however if I am unwilling, refusing, to serve as a part of a killing machine, I get no vote. Is this a re-creation of Sparta? I don't know my Greek history well enough but seems to me that Sparta is a good example for having citizens be those who are able to be athletic and military.

If the body politic can be analogous to a human body this is like making your way through life without much reading, philosophy, art. You get physical education and obedience. Oops, reminds me of a recent fascist state.

OK, I know I am roaming far afield and probably willfully misunderstanding you but perhaps you can see a glimpse of the problems implied by your position.

We have all sorts of social obligations, including the obligation to pay taxes, for example, that falls on all people. Is a loose obligation of service, with a broad definition of service, so very different morally?

I believe we have all sorts of personal moral obligations, some form of public service being among them - should we be, as a society, compelling people to do something that is morally right?

I'm not going to answer the question yet, just restate it in my own words. But I'm not tempted to answer it with a simple yes or no.

We should not have a draft. We should simply restrict full citizenship -- mainly, the right to vote -- to those who have served in the military.

OK. And since you're restricting my citizenship and ability to vote for not having served, we can at the same time restrict what laws I have to follow and how much I have to pay in the form of taxes.

I believe we have all sorts of personal moral obligations, some form of public service being among them - should we be, as a society, compelling people to do something that is morally right?

No.

A simple no works for me, too.

PHJ - I may need to pull out some of my old work on the issue - but I think some of the later cases, before the Guantanamo decisions, include the cases involving Haitian refugees. Some of the earlier cases go back to 19th century immigration cases and some of the cases involving Lincoln's declaration of martial law and suspension of constitutional rights during the Civil War. On the pure legal side, there's a series of Supreme Court cases that essentially say that certain sovereign rights pre-empt constitutional consideration - this is a "get out of jail free" card for governmental powers to do certain things that are viewed as broadly beneficial to society. Lots of legal scholars criticize Korematsu (and Hiraybiashi - I may have the spelling wrong, but its the case one year prior on Japanese internment), but it remains good law and has been cited in S.Ct. cases on government powers, particularly in the immigration area.

We should not have a draft. We should simply restrict full citizenship -- mainly, the right to vote -- to those who have served in the military.

(1st this appears to be different than original question and isn't this Starship Troopers?

Beyond that, why does it have to be military service, if someone won't be subjected to doing the killing or put on the front lines, why does it have to be a part of the military and not just civil service of some kind?

> Doug: We should simply restrict full citizenship -- mainly, the right to vote -- to those who have served in the military.

Uh huh. Pacifists and anyone else who either doesn't wish to serve or is temperamentally unsuited for service will be denied the right to vote. Trying to get the group riled up, Doug? ;-)

As philosojerk replied, "The more obligations you impose on me, however, the more difficult of a time you're going to have justifying the form of the state which you propose."

Doug, you'd probably enjoy the first 50 pages or so of J.M. Coetzee's Diary of a Bad Year in which the logic of conquest and government is relentlessly laid bare. If you're not just shitstirring, i'd be interested in your take after reading those pages.

Under Article 1, Section 8 of the United States Constitution we find congress has the power:

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;

Looks to me like the Constitution gives congress the right to do whatever it has to, including conscription, to raise an Army and a Navy, the Air Force might have a Constitutional issue with the legality of its existence.

I would suggest this is all the authority the US needs to raise a military,including by means of conscription. Compulsory non-military service does not seem to have any Constitutional basis.

Geneg - to play the angel's advocat, the 13th amendment on slavery and indentured servitude came afterwards, and how do you distinguish compulsory military service from slavery or indentured servitude?

Also, there is no constitutional basis for deporting illegal aliens (there is a constitutional basis for establishing uniform rules of naturalization) - does the government not have that power?

i thought the main qualification for military service was a willingness and ability to obey orders.

Weener: Reading through your list of states without armed forces, I have to force myself not to take the opportunity for unkind ridicule. But two serious points: they have "armed forces," just not special military forces. That is, they have men armed with guns who will kill people when necessary, as all states do. And they have a military to protect them from outside aggression, too, most of them: yours and mine, in fact (assuming you are an American).

Native Roses: No, I am serious, although I ran out of my usual meds a week or so ago and for some reason feel less restraint than usual in voicing Oldthinker ideas. I will read the Coetzee, on your recommendation, especially since -- I am ashamed to admit -- I have never read anything by him.

Maggie: Actually, universal male military service was normal in all Greek states. (If they didn't want to be overrun by the Spartans or any of a dozen other nasties, it had to be.) As it should be in all free societies, although voluntarily.

So -- remember, the next time you are reading The Symposium, that all those nice educated Greek gentlemen sitting around discussing the nature of love, were citizen-soldiers. Over their couches probably hung their shields and spears.

Societies where we let a few people bear the burden of fighting and dying for the rest of us are probably not good societies, in the long run.

PhilosojerkSorry, but non-citizens would have to obey the laws and pay taxes. If they cannot defend the state, they should not have the right to determine its course. But if they live there, they should obey the laws and pay the taxes.

ReadAFew: Bingo! It should be military service because only in the military can you be ordered to die and executed if you refuse. Working with inner-city deprived youth may actually have a higher mortality rate, but it ain't the same thing.

Of course, if someone is temperamentally unsuited to pushing a bayonet into someone else, a wise military will let them do something more efficient in increasing enemy mortality, like firing a machine gun, or teaching potential machine-gunners how to read, or healing the bayonet-wielders so they can return to their good work.

But the principle is the same: if you are so morally deficient, so selfish, or so muddle-headed, that you refuse to defend your society with your life if need be, you should not be allowed the privileges of a free man.

where does . . . the Constitution get the legitimate authority to demand such a thing of me?

In the military context? The Army Clause. See U.S. Const. art. I, Section 8, cl. 12. ("The Congress shall have power to raise and support armies"); the Selective Draft Law Cases (affirming the constitutionality of compelled military service); see also dicta in United States v. O'Brien ("The constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping. The power of Congress to classify and conscript manpower for military service is 'beyond question.'").

I would tell you that I believe the state has the authority under existing jurisprudence (for example, the Japanese Internment cases) but that I also believe the cases establishing that authority were wrongly decided.

I don't think Korematsu is relevant at all. How does Korematsu establish the authority for what you propose? Can you elaborate?

I would have thought that the analysis turns on the Thirteenth Amendment ("involuntary servitude") and that 'national service' is presumptively constitutional under Butler v. Perry (affirming that the Thirteenth Amendment "introduced 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, etc.").

>26 enthymeme: You're misunderstanding the question. I'm not asking where in the constitution the authority is found. I'm asking what gives the constitution any authority over me in the first place.

Its the problem of political authority (or alternatively, the problem of political obligation). Some of the most common answers to this question are appeal to social contract, consent theory, the so-called "principle of fairness." Going into them all here is beyond my time constraints right now (a good book that is both an enjoyable read, and gives a good accounting of most of the major answers to the authority question is A. John Simmons' Moral Principles and Political Obligations. Some of his arguments for his own position (philosophical anarchism) are iffy, but it provides a good survey of the field).

And my point to Doug, in response to his short reply in #25, is that whatever means of justifying the state you come up with - consent theory, contractarianism, etc.... any of them is going to fall far short of justifying the a state in which "We should simply restrict full citizenship -- mainly, the right to vote -- to those who have served in the military."

Doug is making the fallacious assumption that I have to justify my existence to the state, when in fact, it is the other way around. Convince me your state has any authority over me, and then I'll follow your laws. Telling me I'm "not a full member of the state" is not going to get that from me. And without some actual justification for the legitimacy of the state, there is no foundation for its coercive use of force to apply any law to me. Without such justification, it is nothing but tyranny by use of force and a usurpation of my rights.

Ok. But I was also responding in part to this:

"Coming back to the constitutional rather than the theoretical question, in terms of current American jurisprudence I think you'd be hard pressed to find case law supporting the authority to demand such a thing."

I don't have an answer to your philosophical query, unfortunately.

Enthymeme - it may be Hirabyashi (again, I haven't checked spelling) that has the discussion, but one of the two Japanese Internment cases has a discussion relating to the manner in which war powers trump protected constitutional rights, and the war powers discussion goes back to the interpretations of War Powers as essentially supra-constitutional.

I think for the draft case to apply here, you've got to have a notion that the government had authority pre-13th amendment to impose universal service - it's clear it had military draft, but could it conscript, for example, to build a road? If you like to limit your governmental powers to ennumerated ones, it's hard to find that.

I find the comparison to jury service, though, interesting.

It sounds like you've read these more recently than I (it's been over a decade since my conlaw and immigration law days).

ref #28
"Convince me your state has any authority over me, and then I'll follow your laws. ... it is nothing but tyranny by use of force and a usurpation of my rights."

The state is nothing but tyranny by use of force and a uurpation of my rights. Agreed.
But funny thing, I (mostly) obey the laws. Since when has accepting the "authority" (I mean legitimate authority) have anything to do with it?

Some laws are worth obeying if other people do too. Stop on red, go on green. Some laws are hard to evade...easier to get a real passport than a forged one and more reliable to boot. Some laws are prudent to obey. Beating up a policeman is probably more hassle than its worth. Besides, my ways are the ways of pleasantness and all my paths are peace. Mostly.

Besides, the alternatives actually on offer are not so hot. Sure, liberty, equality and solidarity, from each according to his ability and to each according to his needs, works for me; if the world would agree, I would agree. But it wont any time soon, so a government that (for the time being) thinks it is limited by law and that citizens have rights is a better deal than most of the others. Not my ideal, but I'll take it.

The lesser of two weevles. Sucks, doesnt it?

Ms. Jerk - I think a key point here is one you made above - the greater the obligations, the more difficult the justification. This strikes me as being right constitutionally as well as morally. It's part of why my concept of compulsory service would have flexibility as to what, when and where services were performed. Doug's approach of limiting rights based on whether particular military service is performed may not sound like compulsion (you can choose not to have your rights), but if you really think of these as "rights" rather than "privileges", then it is just as compulsory.

Doug's approach of limiting rights based on whether particular military service is performed may not sound like compulsion (you can choose not to have your rights), but if you really think of these as "rights" rather than "privileges", then it is just as compulsory.

But Doug is most interested in limiting my right to vote, while you want to limit my right to almost any self-determination for two years of my life (unless I don't make it to age 70, I guess). Of course, you admit that your plan is compulsory, so I guess the fact that self-determination itself is a right rather than a privilege doesn't enter into things much.

Philosojerk: The state I propose, like every other state that has ever existed and will ever exist, requires certain things of its citizens: things they may not do (build nuclear weapons in their basement), things they must do (pay their taxes).

I justify this general arrangement -- i.e. state coercion -- on the grounds that without it, we will be coerced by non-state actors. I don't want that to happen, so I force you to pay taxes, etc. It doesn't really matter whether you like it or not, although I would prefer that you like it.

I am simply considering the question: who should have the right to determine the actions of the state? And I answer it: those and only those who are willing to defend it.

That seems awfully fair to me. The choice -- to defend and have some influence in the state -- would be open to everyone. Of course, it has not a chance in hell of happening. Current events are running in the other direction: soon we will be giving criminals the right to vote, followed, or preceded, by children.

Yes, my approach says, we have a burden that we need to shoulder, that includes but is not limited to the military. Let's all pitch in and handle that burden.

The alternative, of course, is to all chip in (via taxes) rather than pitch in, and hire people to take care of that burden.

The alternative is what we have chosen. A benefit of a universal service model is that we all suffer from our own collective decisions - such as the decision to go to war. And by including a late year as well as an early one, you don't have a bunch of over-the-hill armchair warriors voting to send the kids into danger without risk to their own hide.

oh, it pains me to say this, but in Maine and Vermont convicted felons already have the right to vote - while in prison, even.

And being violent selfish individuals, they tend to vote Republican, no doubt.

And yet it's Democrats who favor felon voting -- a wonderful act of self-abnegation?

Or do I have something wrong?

By the way, what would be the benefit of universal service?

Someone I know who has been involved in criminal justice reform told me that the main reason American prisons do little or nothing to reform offenders is because we basically guarantee that everyone put in prison will spend their term without a decent role model anywhere in sight. Many of the guards and staff at our prisons are not kind, thoughtful, well-educated people - prison guards tend to be a tough lot, and include a lot of people who wanted to be cops but couldn't make it. Still a bunch of LTers in American prisons talking about books and things will improve. Likewise, one set of programs that tend to do pretty well in mediocre schools are mentor programs. We need a bit more mixing in our society, and universal service programs can provide that mixing on several levels.

ref #38
What woud be the benefit of universal service?

Are you kidding? A tax in kind and a standing army.
Yee hah! Wall to wall war forever. A government's dream.

Many of the guards and staff at our prisons are not kind, thoughtful, well-educated people - prison guards tend to be a tough lot, and include a lot of people who wanted to be cops but couldn't make it. Still a bunch of LTers in American prisons talking about books and things will improve.

But why would kind, thoughtful, well-educated people choose working in prisons rather than some other form of service?

We need a bit more mixing in our society, and universal service programs can provide that mixing on several levels.

And what is the benefit of mixing to the "servants"? I've already spent more than enough uncompensated time in mediocre public schools. And not everyone would agree with your normative statement to begin with. I'm not at all sure I do.

First, I should note that I must be wrong because Doug and I agree on too much here. I also do not believe this country will even consider a universal service model anytime in my lifetime. But, I would like it if we had more of an ethos of universal service.

I've known thoughtful, well-educated people who found working in the prison system very rewarding if very difficult. Same with teaching in mediocre public schools, something my mother did with great rewards over several decades. In a universal services model, I think the benefits are the same for everyone participating - broadening your horizons and working with people from a broad range of backgrounds. I've heard relatively few people say they didn't get a lot out of their time in the peace corps, vista, city year, or, for that matter, the military. And think about it - couldn't Paris Hilton really use a year like this?

>29 enthymeme: I'm going to leave the con law issues here to others. It's an area in which my knowledge is clearly less than others posting on this thread, though I'm far more sympathetic to the reading A_musing is applying, if only because I'm more sympathetic to the position he ends up at ;)

>31 modalursine: You're conflating two issues. There are lots of reasons to do what the laws say you're supposed to do. One of those reasons is because the law says so. For that reason to apply, you need to convince me of your legitimate authority. Other reasons, such as morality or simple efficiency, saftey, etc - these can apply even outside legitimate authority. But we're talking about whether the government can legitimately force me to serve in the military, or else restrict my citizenship. I'm saying that there is no legitimate authority for it to do so.

A_Musing: I know the feeling. Two or three kind, or even neutral, personal comments directed towards me from liberals, and I start worrying that I am going soft. One or two statements of agreement on some issue -- and I have trouble sleeping. It's probably just diabolical psychological warfare, but it still makes me nervous.

But I don't like the idea of conscription in peacetime, or even in demi-wartime like we are in. A free society should be defended by its citizens. No one who is not willing to defend it should be a citizen. Simple.

>34 Doug1943: Doug - I am simply considering the question: who should have the right to determine the actions of the state? And I answer it: those and only those who are willing to defend it.

Interesting. I'd be willing to defend the state, if the state was one I found to be legitimate, and if there was an invasion into our land. But that form of defense, and what our military does, are two very different things. I was thinking about this thread during ride home (ahh how LT has permeated my brain), and I think there is a relevant question we've all overlooked:

Maybe our attention shouldn't be so much on building up a bigger and better and stronger military (whether it be by conscripting every American or whatever other means), but instead on how to navigate the complicated contemporary multi-national market economy in a way that doesn't rely on military strength, but on intelligent business and investment.

I am not "anti-military," as I've seen you accuse some "leftys" of in this thread or another today. In fact, I'm from a military family, with a military upbringing. I am, however, anti-war. And however much the neocons want to blur that distinction, it is a real one.

A_musing and others may be interested in reading Simone Weil's The Need for Roots in which she draws a distinction between obligation and rights:

"The notion of obligations comes before that of rights, which is subordinate and relative to the former."

Moral obligation is higher - and cannot be coerced by the State. Weil - Gide called her the patron saint of all outsiders - is often overlooked by many, because she defies classification - but that is precisely what draws me to her.

>45 enevada: Simply pointing out that somebody drew that distinction, and that she made the assertion of which was primary... does nothing to actually defend the point.

Whether obligations or rights come first is actually not a "decided" issue, by any means, and there is also a very big distinction between moral obligation on the one hand, and political obligation on the other. Whether you think rights are moral or political will also, ultimately, have a big impact on which you think is primary: obligation or rights.

I, for one, can't defend a point until I've read something about it, that's why I make the suggestion to read Weil. Her arguments have weathered well, and are worth looking at.

Admit I'm catching up on this thread, but if I follow you, Doug, people like Cheney, Rice, Gonzales and McCain's mother, as well as Clinton (take your pick), Obama and Barbra Streisand, would in a better America be stripped of their voting rights?

. . . the war powers discussion goes back to the interpretations of War Powers as essentially supra-constitutional.

I disagree. Executive and Congressional war powers are firmly rooted in the Constitution. Under Korematsu, war powers are no less constitutionally valid than regulatory powers derived from the Commerce Clause. See Frankfurter, J., concurring ("If a military order such as that under review does not transcend the means appropriate for conducting war, such action by the military is as constitutional as would be any authorized action by the Interstate Commerce Commission within the limits of the constitutional power to regulate commerce. And being an exercise of the war power explicitly granted by the Constitution for safeguarding the national life by prosecuting war effectively, I find nothing in the Constitution which denies to Congress the power to enforce such a valid military order".).

Under Hirabayashi, all that is required to determine the constitutionality of a curfew order is a rational basis test ("In this case it is enough that circumstances within the knowledge of those charged with the responsibility for maintaining the national defense afforded a rational basis for the decision which they made.").

If war powers trump constitutional rights in any such interaction, all it would be is a straightforward case of constitutional conflict constitutionally resolved. It doesn't make the result "supra-constitutional"!

In any case, I still don't see how the Internment Cases are relevant. In the Internment Cases, Japanese-Americans were forced to relocate from designated military areas in the west coast and/or were subject to curfew during wartime. They weren't forced into labour in service to the state (I believe internees were free to work anywhere outside of the exclusion zones) regardless of whether a war was on or not, which is what you proposed in 6.

Because the 'war powers' argument only applies in wartime, Korematsu and Hirabayashi won't be on point. Rather, the basis for challenging compulsory service would be the Thirteenth Amendment. But as we've already observed, the Thirteenth isn't implicated at all in the Internment Cases.

Thus, Korematsu and Hirabayashi aren't precedents for anything except the generalized proposition that 'sometimes, constitutional war powers trump constitutional rights.' As such, they aren't particularly helpful to the present inquiry.

I think for the draft case to apply here, you've got to have a notion that the government had authority pre-13th amendment to impose universal service - it's clear it had military draft, but could it conscript, for example, to build a road?

Butler v. Perry isn't a draft case, but it addresses the example you cite here. The short answer is, 'Yes'. Road building was at common law one of those "duties which individuals owe to the state". Jury duty would fall in the same category.

philosojerk,

On reflection, I have half an answer. You write:

"Doug is making the fallacious assumption that I have to justify my existence to the state, when in fact, it is the other way around. Convince me your state has any authority over me, and then I'll follow your laws. . . . Without such justification, it is nothing but tyranny by use of force and a usurpation of my rights."

But you are free to repudiate your citizenship and leave the country. What rights you have are guaranteed only by force of arms (whether the state's or your own). If you believe that you can keep these undefined rights by force, you may try. If you believe that you can live hermetically off the grid and away from all organs of state power - by all means. If you cannot do either, you're forced to come to a pragmatic compromise: a social contract with the state, with all the legal obligations that it entails. Effectively, you come within the ambit of state power and largesse.

So no, you don't have to justify your existence to the state . . . because you are welcome to leave. (This makes the assumption unnecessary.)

ref #50
"But you are free to repudiate your citizenship and leave the country"

That sounds like bullying malarkey to me.

By the state's own rules, I was born here so they or it is stuck with me as I am stuck with the state.

As it turns out, as states go the US is among the better ones with its foundation ideas about limited government and the rights of citizens.

As long as I pay my taxes and generally obey the law, the state has no ground to complain.

I appreciate the state's advantages in keeping order and guaranteeing certain of my rights, but I'm suspicious of its greed for power and wary of it as a necessary evil.

By enforcing order and maintaining a monopoly of force, the state makes certain rights such as property rights and the right to go about ones business unmolested possible, but paradoxically that very power to enforce rights can very easily become the enemy of all rights.

The state doesnt need your love, it needs watching.

What's your point? You vaguely sound as if you're disagreeing with me, but you haven't actually contradicted what I wrote.

Since I was replying to someone who hypothetically rejects the rules of her state of origin (which entails rejecting the very rights occasioned by those rules), pointing out the fact that she is at liberty to renounce her citizenship of a state whose constitutional order she rejects ought to be congenial to her. Not "bullying".

And no one said anything about "love". That's just clueless malarkey on your part.

Krolik: You said: "If I follow you, Doug, people like Cheney, Rice, Gonzales and McCain's mother, as well as Clinton (take your pick), Obama and Barbra Streisand, would in a better America be stripped of their voting rights?"

In my hypothetical society, these people, and everyone else, would have a choice: do I want to defend my society enough to enlist in the military, where I can, in some circumstances, be ordered to my death? If yes, then they get a vote. If not, not.

Although I don't rationally accept the "chickenhawk" argument, it does have strong emotional appeal. Chickenhawks under this plan would still be able to urge war, perhaps even as employees of the state, but would not be able to vote for it.

This idea is a straight rip-off from Robert Heinlen's Starship Troopers!

It brings to mind the story of an aesthetic young man being buttonholed during WWI by an indigant old lady, who demanded:

'Young man, why are you not in uniform, fighting to defend civilisation?'

To which the young man replied:

'Madam, I *am* that civilisation!'

The US keeps getting itself embroiled in silly wars left, right and centre. However, those voting for them tend to make damn sure that neither they nor their families get anywhere near the fighting. Maybe a plan such as Doug outlines would act as a brake on them voting for the more hare-brained of these adventures.

Enthy -

Well, I actually started to slog through a few cases to try to give your post the response it deserved, and discovered that Butler v. Perry is really exceedingly relevant, as it deals with conscripting labor to build roads!

Well, why didn't you say so! (I know, I know, I should have looked it up before responding.) I pulled out the road-building thing as something that I knew had existed in colonial times but really didn't know whether it continued to exist in constitutional days - but here you've found it. For those interested, the case is here: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/ButlervPerry.html

Interestingly, this deals with the State of Florida, not the federal government, so a key question in the case is whether the constitution constrains the state of Florida in some way; there can be a separate question where the federal government claims a power, which is whether that power is ennumerated or can be read into the ennumerated powers or otherwise found to exist in the federal government. I don't know if the federal government conscripted road builders the way state governements did - there was obviously a very big debate about what role the federal government should be playing in such projects in the early Republic, and if historically the same logic would apply to the federal government.

I'm convinced the Supreme Court would read the power to demand universal service in to the ennumerated powers; governmental powers are read so broadly today - the side jaunt that arose from my comment about the Japanese Internment and other cases (which generally, for example, find war powers or other powers exceedingly broad based on quite sparse constitutional language or without regard to constitutional language at all), is one we may want to play with on another thread. But I still struggle with just where the power would get shoe-horned in.

Doug,

A question: when you deny people who "choose" not to serve a fundamental right, are you not "compelling" them to serve?

Stated another way, I think if it were a requirement to serve or face imprisonment, we'd all agree that the requirement is compulsion.

What is there about our right to vote and participate in government that is less valuable than our right to wander the streets and breath in dirty air?

A_Musing: I don't actually think in terms of "rights" the way most people seem to, so I am not sure how to answer your question.

I think you are saying: the right to vote is so fundamental, it is like the right to live.

So not letting someone vote if they don't serve a term in the military is like not letting them live if they don't serve a term; or at least, like not letting them live freely.

Since I don't accept the premise, I don't accept the conclusion.

I don't think there is a right to choose the direction of the state, regardless of what you do to defend and maintain it. If someone refuses to pay taxes, for example, I would deprive them of their liberty and of their vote. (I think that is the norm.) I just extend this idea -- if someone refuses to defend the state, I would deprive them of the right to determine its direction. (Not my original idea -- as I indicated earlier, but perhaps too cryptically -- this idea is stolen from Robert Heinlein.)

Also: many anti-war liberals make a big play about "chickenhawks" -- people who advocate fighting wars but who did not themselves serve.

It's a powerful argument, and was routinely used by Nazi sympathyzers in the 1930s to denounce Jewish opponents of appeasing Hitler: these Jews are keen to get us into a war, but will not do the fighting themselves.

My (stolen) idea is just the logical extension of this liberal/Nazi argument.

How about giving vets two votes?

Doug,

The way I would phrase it is that you view voting as a privilege, not a right.

Do you view us as having any rights? Or only privileges, that may be taken away.

A_Musing: I use the term "rights" very loosely, without having a proper philosophical foundation for them. I know this will call down a firestorm on me from my fellow conservatives, many of whom are People of the Book when it comes to things like this.

I think we are just a bunch of hairless chimpanzees, existing in a universe where there is no transcendent order, certainly not a supernatural one.

Some ways of ordering society work better than others, at securing our ability to lead good lives. I am for whatever works. Liberal democracy seems to be better than the alternatives, in the long run, for societies which can sustain it.

If a "right" is just a shorthand way of saying "something we have found that it is a bad idea to let the government interfere with", then fine.

I don't think that there is a "right" to determine the direction of the state.

And I don't think most people do, either.

For example, a lot of my ancestors in Georgia were deprived of the right to vote, until they swore loyalty to the state that they had tried to overthrow. Quite right, too.

Should I say this yet one more time? Why not. Rights proceed from the barrel of a gun.

I'm convinced the Supreme Court would read the power to demand universal service in to the ennumerated powers; governmental powers are read so broadly today . . . . But I still struggle with just where the power would get shoe-horned in.

At a guess, the Militia Clause ("The Congress shall have power to provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States . . .") read in conjunction with the Necessary and Proper Clause, broadly construed.

Or the Postal Clause ("The Congress shall have power to establish . . . post roads").

More indirectly, Congress could condition the grant of federal highway funds (under the Spending Clause; see, e.g., South Dakota v. Dole) on a state-imposed program of mandatory service that involves road-building and maintenance.

There is no obvious legal impediment to such legislation.

. . . there can be a separate question where the federal government claims a power, which is whether that power is ennumerated or can be read into the ennumerated powers or otherwise found to exist in the federal government.

Certainly.

Apart from jury duty, another obvious example of compelled public duty is that of the material witness providing evidence in a court of law (via the subpoena authority); or analogously, the duty to testify as compelled by Congress (see 2 U.S.C. 192-194).

While the judicial subpoena authority is explicit under the Sixth Amendment (see, e.g., Kastigar v. United States; Blair v. United States (1919)), there is no corresponding express provision that authorizes Congress to compel testimony. Nevertheless, the Supreme Court has found that such power flows implicitly from Congress's legislative and investigatory functions. See Watkins v. United States ("The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. . . . It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the facts needed for intelligent legislative action. It is their unremitting obligation to respond to subpoenas, to respect the dignity of the Congress and its committees, and to testify fully with respect to matters within the province of proper investigation.").

Thus, the Court may read from the broad vesting of legislative power upon Congress the power to compel testimony, even if none of the enumerated powers provide for it.