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Monday, February 27, 2023

Conscription in Constitutional Argument

There are many ways in which conscription makes itself felt in constitutional argument. One is as an argument for expanding voting rights--the 26th Amendment is a good example. The second is as an argument for equality. Concurring in Edwards v. California, Justice Jackson pointed out that discrimination against the indigent was problematic given that the indigent were subject to the draft. Sometimes it's an argument against equality--consider the opposition to the ERA.

A fourth is as an argument against a libertarian reading of the Constitution. Justice Holmes said (infamously) in Buck v. Bell that the compulsory draft supported the policy of compulsory sterilization, for example. I'm trying to figure out when this third type of argument was first made. There is a concurring opinion from 1870 that says something comparable, but I think that the first opinion of the Court to do so was Justice Harlan's opinion in Jacobson. Here is the key passage:

The liberty secured by the 14th Amendment, this court has said, consists, in part, in the right of a person ‘to live and work where he will’ (Allgeyer v.Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427); and yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense.

The Court said this to reject Jacobson's argument that he could not be fined for refusing a compulsory smallpox vaccination. I'm still thinking about other examples. 

Posted by Gerard Magliocca on February 27, 2023 at 08:38 PM | Permalink


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