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The 13th Amendment bans all slavery except for "a punishment for crime whereof the party shall have been duly convicted." It doesn't appear to contain any language about military service or national security.

A draft is involuntary work that there is no way to opt out of. They can send you anywhere in the world and force you to perform any tasks they want, even some tasks that would be illegal for civilians (like killing people). If you refuse, you go to jail. Why isn't this considered slavery?

SegNerd
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    What about Jury duty? – spacetyper Oct 11 '21 at 05:40
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    Article 4 of the European Convention on Human Rights had the same issue, and the designers solved it by just adding an explicit exception for military service (and for civil service that is done in place of military service). – Heinzi Oct 11 '21 at 07:47
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    It is. It just serves the government interest so it is explicitly permitted. The accepted answer describes how. Jury duty is similar in type but not degree. – Eric Hauenstein Oct 11 '21 at 13:24
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    In the US context, slavery was always an inherited condition--whereas the children of conscripted military personnel are not automatically drafted. Also, enslaved people could be owned by private individuals (not true of draftees) who had near-absolute right to dispose of their labor & lives, including to sell them to others (not true of draftees either). That's just the tip of the iceberg really... – Tiercelet Oct 12 '21 at 18:25
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    The idea that you cannot opt-out of conscription is not always true. The Danish for instance have a type of conscription but do allow for the concept of a conscientious objector as well. – Neil Meyer Oct 12 '21 at 20:04
  • The conscription system of Eritrea is so tantamount to slavery, and so many have fled it, that it has become a major issue for determining the refugee status of asylum seekers. See eg The Eritrean Military/National Service Programme: Slavery and the Notion of Persecution in Refugee Status Determination by Sara Palacios-Arapiles in Laws 2021, 10(2), 28; https://doi.org/10.3390/laws10020028 (Open Access) – Silverfish Oct 12 '21 at 21:30
  • Because there is payment for service, no chattel ownership, and no inheritability. – user207421 Oct 13 '21 at 04:10
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    The same reason that taxes aren't theft. – J... Oct 13 '21 at 20:14
  • @NeilMeyer but the objector can be compelled to conscription into non-violent work instead, so I'm not sure that example counts. – Prof. Falken Oct 14 '21 at 09:30

4 Answers4

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The only real answer is that the US Supreme Court, in interpreting the constitution, and specifically the argument that the 13th Amendment prohibits a draft for compelled military services has totally rejected that argument. For many years now the US has not used a draft, and it is obviously possible for the US to have an enduring and powerful military without any draft, which was perhaps not apparent to the Justices in 1918. A draft had been common in this country from the colonial period, through the Revolution, the Civil War, World Wars I and II, the Korean War, and the Vietnam War. In reaction to the problems during the Vietnam War, and the great opposition to any draft at that time, the US has not used a draft since, although it retains a legal requirement to register for a possible draft, and the legal authority to impose one should it be thought wise. Note that this was not because of the 13th Amendment. Note also that compelled service by the citizens (or residents) in a locality, particularly to fight fires and floods, when the usual forces are inadequate to that end, has been commonly used. Such compulsory service has never been thought to be prohibited by the 13th Amendment.

Also, as mentioned in comments, citizens can be compelled to do jury duty, which could in theory be considered "involuntary servitude" but has never been thought to be prohibited by the 13th amendment.

The answer by Trish (now deleted) thoroughly described the many differences between a slave and a drafted soldier. Still, drafted military service might be thought to be a form of involuntary servitude. But the Court (and the laws and other courts as well) have not treated it as such. In the Selective Draft Law Cases, 245 U.S. 366 (1918) the Court thought the idea that compulsory military service constituted involuntary servitude was so wrongheaded that it thought a very brief mention sufficient to refute this contention. It wrote (at 245 U. S. 390):

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.

It is clear from the text of that opinion that the justices thought that the existence of a power to draft soldiers was essential to the implementation of the constitutional power (article I section 8):

  • To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
  • 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;
  • To make Rules for the Government and Regulation of the land and naval Forces;

The opinion discusses the history of compelled military service in the United States, in the colonies before there was a United States, and in Great Britain before that. The opinion says that:

Compelled military service is neither repugnant to a free government nor in conflict with the constitutional guaranties of individual liberty. Indeed, it may not be doubted that the very conception of a just government and its duty to the citizen includes the duty of the citizen to render military service in case of need, and the right of the government to compel it.

and

Further, it is said, the right to provide is not denied by calling for volunteer enlistments, but it does not and cannot include the power to exact enforced military duty by the citizen. This however but challenges the existence of all power, for a governmental power which has no sanction to it and which therefore can only be exercised provided the citizen consents to its exertion is in no substantial sense a power.

One may disagree, but that is the law of the land as interpreted by the final body authorized to make such interpretations, the Supreme Court, and it remains good law today.

David Siegel
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    "It is clear from the text of that opinion that the justices thought that the existence of a power to draft soldiers was essential to the implementation of the constitutional power (article I section 8):" But it's an amendment. Surely by definition, any conflict between the original constitution and amendment should be resolved in favor of the amendment? – Acccumulation Oct 11 '21 at 02:38
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    @Accumulation I agree, but it is not hard to see why the justices on the Supreme Court (the ultimate masters of the enslaved) would disagree. – emory Oct 11 '21 at 02:46
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    @Accumulation What does the amendment mean? If the authors had meant for it to conflict with Article 1, Section 8, then they would have said so, either directly in the text, or at least publicly at the time. Since they didn't, the argument can be made that the amendment clearly didn't have the intent to do that, that the authors neither considered the draft slavery nor intended to end the draft with the 13th Amendment. When reading two texts like that, it's often better to read them so they don't conflict, instead of in a way that they do. – prosfilaes Oct 11 '21 at 06:11
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    Levee is French for raised-up. Levees are called that because the ground is raised up and so is the water behind it. It has nothing to do with "raising a work force". – Tom V Oct 11 '21 at 07:03
  • @Tom V Thank you. I have struck the incorrect derivation. – David Siegel Oct 11 '21 at 14:45
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    @Acccumulation Yes, an amendment changes what was present, and in a conflict, the amendment prevails over the original. But a standard rule of construction is that if there is a reasonable interpretation that does not involve a conflict it is chosen over one that does. Also that major changes are not made by indirection. Yet another is that an absurd interpretation is not selected when there is a sensible one. The 1918 Court thought a state sans power to conscript was absurd. If this idea had been raised when the 13th was drawn, an exception for a military draft might well have been added. – David Siegel Oct 11 '21 at 14:54
  • This refers to an "answer by Trish", which I presume has been deleted since I cannot see it. – kaya3 Oct 11 '21 at 23:25
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    @KAYA3 That is correct Trish gave the first answer to this Q, which I edited. That answer explained at some length the difference between the lack of rights of a slave (particularly in the pre-Civil War South of the US) and the rights retained by a drafted soldier. But it did not address the issue of "involuntary servitude" as opposed to slavery, nor some cases in which slaves were found to retain certain rights (particularly in Northern states), and after a comment pointed this out, Trish deleted the answer. I wish it were still on view. – David Siegel Oct 11 '21 at 23:35
  • Interesting answer and some great references. This sentence feels messy though, think it could be revisited to make it clearer? - "Note that this was not because of the 13th Amendment Note also that compelled service of citizens in a locality, particularly to fight fires and floods, when the usual forces are inadequate to that end, has been commonly used and not thought prohibited by the 13th Amendment." – RyanfaeScotland Oct 12 '21 at 09:11
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    @RyanfaeScotland I have edited that section of the answer, which was missing a period. Do you think it is clear now? – David Siegel Oct 12 '21 at 17:20
  • So essentially the answer is that, whether that amendment, as written, should be understood to outlaw conscription or not - *either way* - Supreme Court Justices in 1918 made a blind assumption, could not even understand what the other side was saying (even though it sounds pretty clear to us, right or wrong), could/would not even justify their reasoning, and has thus guided society into making a similar blind assumption for over a century, without this ever being properly/legitimately analyzed by the overall legal system? It's just a total shot in the dark that was never looked into? –  Oct 12 '21 at 21:55
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    I would not put it that way @Panzercrisis I think that had the issue been raised (an not dismissed out of hand) in 1865, in the aftermath of a war in which the Union used conscription extensively, a specific exception for a military draft would have been included. Beyond that, historically conscription has been treated differently than indenture, peonage, or other forms of servitude once legal. Many challanged the draft during Vietnam, and not even the more liberal Justices (such as Black or Brennen) ever suggested this argument, not even in a dissent [...] – David Siegel Oct 12 '21 at 23:34
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    @Panzercrisis [...] In short the 13th was very unlikely to have been intended to bar a military draft, no court decision I know of has so interpreted it, nor has any serious legal argument I have heard of. That is just not how it is treated by the US legal system. And I think if, even today, it were so interpreted, it would be promptly amended to provide such an exception. I think the reasoning in the 1918 case was perfectly clear, just not textual. Those justices thought banning a draft simply absurd.. – David Siegel Oct 12 '21 at 23:38
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    @DavidSiegel, yep a lot clearer now. I thought the "13th Amendment Note" was a thing in its own right (some sort of note on the 13th Amendment) which garbled the sentence as a result. The period straightens it all out, thanks. – RyanfaeScotland Oct 13 '21 at 09:21
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It is. But because laws are made to benefit the ruling mainstream mayority, or the political class, or whatever you choose to believe, conscription is magically not slavery, because as a citizen you have duties towards "the society" or "the nation" or "democracy". Just like taxiation is magically not theft, because majority agree it's useful. Well... it may be useful, but still is not consented. https://en.wikipedia.org/wiki/Taxation_as_theft

Libertarian
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    Your answer could be improved with additional supporting information. Please [edit] to add further details, such as citations or documentation, so that others can confirm that your answer is correct. You can find more information on how to write good answers in the help center. – Community Oct 12 '21 at 12:28
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    This is really a statement of opinion about what the law should be, not a supportable answer about what it actually is. The US is not currently a libertarian country. Laws are often interpreted in line with existing practice, or in accord with the apparent intent of the legislature, even when some details are not apparent from the actual words of the law. This is even more true of the Constitution, because that is designed to last for an extended time, and is intentionally hard to change. – David Siegel Oct 12 '21 at 14:45
  • Taxation is not theft. If the money gets misused, people might be considering the misuse as "theft". Life in society is akin to slavery, is it not? I remember someone named Raphael Samuel who wanted to sue his parents because they gave birth to him without asking his permission, and while fully knowing that he'd have to suffer through life. – Nav Oct 13 '21 at 19:33
  • @Nav That seems like a stupid idea. Even if a court would agree with you, you still have to suffer through life. No amount of compensation would change that. – MechMK1 Oct 13 '21 at 23:17
  • @MechMK: Raphael knew it's a stupid idea. Google it. The point however, is that the way we are forced to go through life does seem to be a superset of a form of slavery. – Nav Oct 14 '21 at 08:17
  • Sorry guys, may be my opinion, but I will still disagree. Taxation is theft regardless of the eventual use of money, because no consent was obtained from the victim. Please don't conflate living in society with being forced by neighbours to do something. My understanding of a society is an aggregation of free individuals. You may want to voluntarily pay for some public service if you want to use it. But please don't opt anyone in to your ideas at a gunpoint. As the off-grid folks have proven, you don't need electric grid, public waters, or even roads, so why is anybody forced to pay? – Libertarian Oct 16 '21 at 11:57
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I'm no expert, but there's a distinct difference between slavery and a military draft or jury duty. Slavery is unpaid work. With a military draft and with jury duty, the mandated person is paid for his/her work. Compensation might not be entirely fair, but it is paid work.

Tim
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  • Your answer could be improved with additional supporting information. Please [edit] to add further details, such as citations or documentation, so that others can confirm that your answer is correct. You can find more information on how to write good answers in the help center. – Community Oct 11 '21 at 19:21
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    Slavery is about the rights and status of the enslaved individual, not necessarily their wage. A slave can be paid, and still be a slave. – Nuclear Hoagie Oct 11 '21 at 19:24
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    Military service might also be a tax in kind. Indeed traditionally you could buy your way out of it. – mckenzm Oct 12 '21 at 01:33
  • Welcome to Law.SE. Answers here need to be based in the law and provide citations. This isn't Politics.SE – coagmano Oct 12 '21 at 02:49
  • @NuclearHoagie questionable. A slave generally has no rights, so no rights to owning property (including money) either. In ancient Rome this was recognised and owners planning to free a slave would set up what's effectively a trust fund for them with money that'd be transfered to the (now former) slave upon his manumission. – jwenting Oct 12 '21 at 06:48
  • Some enslaved people actually got wages. – ouflak Oct 12 '21 at 06:52
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    You're correct, you are "no expert". Slavery does not mean being given absolutely nothing for forced labour or other abuses (such as forced copulation). At the least, slaves are typically given at least some tiny amount of food and minimal shelter so their masters can keep keep them alive to continue to be slaves. – End Anti-Semitic Hate Oct 12 '21 at 08:05
  • @NuclearHoagie : Indeed, historically slaves have been paid with food and lodging. But in pre-industrial times, most of the free population was also barely living on subsistence level, therefore we shouldn't neglect "food and lodging", as most of the rest of the population wasn't living all that much better. Still, being a slave, meant they weren't allowed to seek employment elsewhere, and, depending on the era and location, weren't allowed to freely marry and have private property. – vsz Oct 12 '21 at 11:14
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    In the context of US slavery, enslaved persons (particularly outside the Deep South--lots of regional variation) could be entitled to own money and to work extra jobs for cash wages. One of the ways enslaved people became free was "self-purchase," often paid for with savings from these kinds of jobs--for example John Berry Meachum. This was obviously very risky & most accessible to those with trade skills, but payment not strictly limited to food & lodging. @vsz – Tiercelet Oct 12 '21 at 18:00
  • (cntd) In fact, one way that slaveholders--well-documented in Virginia, but I've seen references elsewhere & it appears to have been everywhere--would profit from enslaving people was to rent out the enslaved person's labor. So there was already a market for this labor; doing more of it in nominally free time (if the enslaver permitted it) was kind of a natural outgrowth. – Tiercelet Oct 12 '21 at 18:13
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    (3/3) In fact, the hiring-out of enslaved labor was (probably consciously) used as a way to disempower white laborers as well by suppressing their wages. You can see this in the life of Frederick Douglass, who was being made to work on shipbuilding in Baltimore; white carpenters (probably motivated by a mix of racism and concern for their labor power) staged a strike at the shipyard to force out free Black workers there. (Slavery touches everything about the American labor market.) – Tiercelet Oct 12 '21 at 18:19
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    Slavery is not "unpaid work". You may be thinking of "indentured servitude" which is closer to your definition, but still significantly different. Slavery is a condition of human existence wherein a person is treated as property and may be compelled as such. – RBarryYoung Oct 13 '21 at 13:36
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Because it is enshrined into the Constitution & applies to everyone (citizen), in contrast to slavery that applies only to the 'slaves', exempting masters, slave owners, slave traders, the Crown, the nobility, etc

As opposed to slavery, the Constitution prescribes the penalties for breaching the laws of the land, whereas in slavery, the penalty is dictated by anyone who's not a slave and is in control/charge of the slave, almost always amounts to death.

Zimba
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    Historically the U.S. draft has excluded at least 50% of the adult population. – shoover Oct 12 '21 at 02:33
  • The question is asking about the difference between draft & slavery. – Zimba Oct 12 '21 at 04:40
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    This doesn't explain anything remotely relevant to how the draft is different from slavery; it barely explains how Constitutional rights are negated by being a slave. –  Oct 12 '21 at 04:41