Are We Sure the Draft's Constitutional?

During the Civil War, the Union government instituted a draft to supplement the ranks of the army as the war took its toll over the first couple of years. Many Northerners didn't much like this. In fact, much Northern rhetoric against the draft compared it to slavery, and you can see why: slavery and conscription are both, very literally speaking, forms of involuntary servitude. I think this fact, that many Northerners thought a draft akin to slavery, interesting in light of the World War One-era Supreme Court case rejecting a claim that the draft was unconstitutional. Only in one paragraph near the very end of the opinion does the Court even consider the Thirteenth Amendment claim, i.e. the claim that a draft is involuntary servitude, and hence proscribed by the same Amendment that abolished slavery. The Court basically just laughed this claim out of court, basically just saying that something so noble as fighting to defend your country could never be the same thing as the degradation of slavery. But people didn't necessarily agree with the Court when conscription was new in the North. Of course you can't really make the argument anymore, because slavery has a kind of Godwin's Law-esque status that you're not allowed to compare anything to it. But on the merits, I think it's hard to argue that a draft isn't involuntary servitude, and we know that it's not clearly true that in the language of 1865 no one would've thought that the words "involuntary servitude" could refer to the draft. Maybe the draft is unconstitutional after all.

About that Nobel Peace Prize

So today Barack Obama announced that he is going to ultimately and wholly ending the War in Iraq at year's end. Now, okay, I know that he's done lots and lots of stuff that isn't very peacenik-y, but looking at the roster of Nobel laureates it looks to me like anyone who ever is involved in the ending of a war gets a Nobel Peace Prize. And Barack Obama has single-handedly ended a (decade-long, illegal, catastrophic) war. Nobel Peace Prize, deserved.

The War Powers Act

I just read a post by Eric Posner, son of the conservative jurist Richard Posner and author of a book called The Executive Unbound, arguing that criticizing Harold Koh and John Yoo for advocating narrow interpretations of statutes to give the executive broader latitude in conducting foreign policy really amounts to criticizing the entire way American executives have handled foreign policy throughout history. I'm not sure I find his particular argument convincing, but I honestly don't really have a very easy time getting worked up about the War Powers Act. As I see it, basically, the Constitution prescribes a particular division of war-making powers: Congress is responsible for providing the military and for declaring war, and the executive is responsible for managing war. Maybe the practice in the post-WWII world of not really declaring war is unconstitutional. Maybe the executive really can just bomb some random country without asking Congress. Maybe NATO and the UN really are constitutional commitments of support for international military undertakings that change the prior balance of power among the branches of the U.S. government. But whatever the truth is about all of those issues, they are issues that Congress cannot change by simple statute. If Congress must declare all wars, and that includes everything from Vietnam to Iraq to Libya, then Congress can't give the President a 60-day window to conduct undeclared wars. Likewise, if these types of conflict can be legitimately begun by the President, I don't see that Congress can say that 60 days later the Commander-in-Chief needs to ask for authorization. Now, of course, Congress can always defund anything it wants, but in terms of formal war-making powers I just don't think that the process can be changed by a simple law. Whether you favor executive power or congressional power over war, the War Powers Act just isn't of a high enough constitutional stature to change what really ought to be going on. So yeah, Obama's violating the War Powers Act. But so what?