As opposition to the Draft reaches dramatic proportions in the House, attempts to replace the military draft with a sort of compulsory domestic Peace Corps are growing. These attempts are aimed at splitting up the antidraft movement by offering a compromise to the antiwar group. "National Service," as it is called, is being proposed as an alternative to the military draft. However, advocates of National Service see it as the salvation for the youth of the nation and a permanent American institution.
It is very difficult to pinpoint just when or with whom in the last few years the idea of National Service started; it has developed so gradually. Secretary McNamara in his 1966 Montreal address to The American Society of Newspaper Editors proposed the Government "asking every young person in the United States to give two years of service to his country—whether in one of the military services, in the Peace Corps, or in some other volunteer development work at home or abroad." What McNamara meant by the word "asking" is not clear; he probably meant to be ambiguous so as to test public reaction. The CHRISTIAN SCIENCE MONITOR editorial for June 18, 1970 states:
There are risks in developing an all-volunteer or professional army—the risk that only one class of citizens will join, the risk that a militaristic 'German general staff' complex might spring up. But the latest presidential evaluators conclude that these risks are minimal.
While reform studies are under way it will also be worthwhile to consider whether the United States should not, even if abolishing the military draft, retain some form of 'national service' for the youth of the nation. For instance, a year with the Peace Corps or at work in ghetto rehabilitation, antipollution, care of the aged, and suchlike. To such unselfed service, which all young people might share on a basis of equality, very few could have conscientious objection.
The analogy in the editorial of a volunteer army to the "German general staff" is puzzling since Germany was noted for conscription. The President's Commission on an All-Volunteer Armed Force (often called the Gates Commission after its chairman, former Secretary of Defense Thomas Gates), is alluded to as just "the latest presidential evaluators," and avoids the concise logic of that commission's report which included such notables as General Guenther, General Norstad, Milton Friedman, and Roy Wilkins. The Commission in its report revealed that only one out of six men is a first-term only soldier, that is, a draftee or draft-induced volunteer. He is typically at the lowest level of the military ladder, and as a "civilian representative" could hardly affect military policy.
The CHRISTIAN SCIENCE MONITOR editorial is not presented for its cogency but because it represents a prevailing mood that seems to be developing and has, in fact, developed thus far into at least one bill before the House.
NATIONAL SERVICE BILL INTRODUCED
Congressmen Bingham, Addabbo, Bergland, Byron, Carey, Rees, Roybal, and Udall have introduced H.R. 6223, a bill to create a National Service. According to this bill, a National Service Agency will replace the Selective Service System. The National Service Agency will be divided into three divisions: Civilian Service, Military Lottery, and Registration and Placement. The latter is for administration of local placement centers. Under the provisions of the bill, all male citizens on their nineteenth birthday will register and will have an option to go into Civilian Service, Armed Forces, or take their chance on the Military Lottery. Civilian Service will include government agencies, nonprofit hospitals, private and parochial schools, but not religious organizations, profitmaking business organizations, labor unions nor commercial farms. Conscientious opposition to National Service is provided for by the bill, but "a registrant must prove by a clear preponderance of evidence that service in general in a military and civilian capacity would be a violation of his most profound convictions." Also such opposition must be "by reason of training and belief.…" If one's conscientious objection to National Service is not recognized by the National Service Agency, the bill then provides that he be sent to prison for up to two years. Since service under the Act is deferred for such time that a person is in prison, he can be prosecuted again and again. Such repeated prosecutions do not technically constitute double jeopardy since each refusal to comply with the Act is considered as a separate offense. Congressman Thomas Rees, one of the sponsors of the bill, believes that probation should be given instead of prison and he hopes that, "some positive changes can be made in current policy so that we can discontinue this insane practice of locking up some of this nation's more principled citizens." When objectors to conscription are presently offered probation, the condition of the probation is usually that they comply with conscription. Most do not, and go to prison.
The current thinking regarding national service can be traced back to 1910 when William James proposed a form of national service in his essay "The Moral Equivalent of War." James believed that "a man acquires [the feeling of] dignity when he knows that the services of the collectivity that owns him needs him." Therefore, in order to prevent war, his herding instinct had to be channeled into constructive goals. James also saw national service as a means of education "to get the childishness knocked out of them."
After World War I, peacetime military conscription was advocated by the military to be a national training system. According to John Dewey writing in THE NEW REPUBLIC it was proposed to "assimilate the foreign born," create "public mindedness," "a sense of public service and responsibility," and provide "cross-fertilization of our various strains." Dewey denounced the plan saying that it would only produce an "anonymous and drilled homogeneity."
While Roosevelt was creating three-letter service organizations in the 1930's, others were advocating that those organizations should be compulsory and not voluntary. The National Livelihood Plan was proposed as a form of national service. Hitler's Germany started "compulsory Labor Service." Military and labor conscription however were well established in Germany since the Prussian States.
In 1938 the Sheppard-Hill Bill was introduced before Congress; it gave the president sweeping power over business and labor and received the strong support of the American Legion. While the Sheppard-Hill Bill did not give direct power to the president to conscript labor, many critics were sure that conscription was inferred. Later, the Sheppard-May Bill was introduced, and it would have given the president in a "national emergency," proclaimed by Congress, power to draft men for military and civilian service. The May Bill was defeated.
Only the emergency of World War II was able to convince the American people (before American entry into the war) that any form of peacetime conscription was warranted. The first peacetime conscription in the United States was inaugurated by the Selective Training and Service Act of 1940.
Following World War II, the advocates of peacetime military conscription, aided by a top-heavy army facing unemployment, started a massive propaganda campaign. Motion pictures favoring conscription were subsidized; the army even lent searchlights to publicize their premieres. The propaganda was so successful that it caused a wave of volunteers. In order to "prove" that it needed conscription to fill the ranks, the Pentagon was forced to raise enlistment standards temporarily. In response to this propaganda, Senator Robert Taft of Ohio stated in a 1945 speech before the Senate:
Military conscription is essentially totalitarian. It has been established for the most part by totalitarian countires and their dictators led by Napoleon and Bismark. It has heretofore been established by aggressor countries. It is said it would insure peace by emphasizing the tremendous military potential of this country. Surely we have emphasized that enough in this war. No one can doubt it.…Military training by conscription means the complete regimentation of the individual at his most formative period for a period of twelve months.
The proponents of peacetime conscription were not as interested in what the individual could do for the state, as what the state could do for the individual in the form of "education." The post-World War II advocates of military conscription emphasized the possibility of moral and social education through "universal Military Training." Taft replied in the same speech:
It is said that we are going to teach the boys citizenship in the camps. This argument makes clear a real danger in the whole system. By handing boys over for 12 months to the arbitrary and complete domination of the Government to indoctrinate them with the political doctrines then popular with the Government, it has all the dangers of Federal education and none of its advantages.
The argument that it is more economical to conscript than to hire men is at best a specious one. The Gates Commission concluded that the army would need only three-fourths as many first-term all-volunteer enlistees to provide a re-enlistment rate to fill the ranks of the existing army. Since much of the present army is engaged in first-term training, an all-volunteer army would eliminate superfluous personnel at a great saving to the tax payer. This is not considering the cost to the individual. When we ask a man to work for less than he would willingly, we are taking the difference out of his pocket. These arguments certainly apply not only to the army, but to any government service. Taft commented in his 1945 Senate speech:
If we admit that in peacetime we can deprive a man of all liberty and voice and freedom of action, if we can take him from his family and his home, then we can do the same with labor, we can order the farmer to produce and we can take over any business. If we can draft men, it is difficult to find an argument against drafting capital.…
VIOLATING INDIVIDUAL LIBERTIES
Conscription of any kind contravenes any constitution that professes to guarantee individual liberties; otherwise, what is to prevent conscription from being the twelve months Senator Taft feared or the two years we now have, the four years of the National Service Act Bill, or forever? If conscription is limited to an emergency, then who decides what is an emergency? Is ten percent unemployment a sufficient enough emergency to warrant conscription?
The United States Constitution does more than just guarantee individual liberty. Based as it is on the philosophy of the Lockean Social Contract, it tries to limit the government by only giving it specifically proscribed power. The power to raise an army is an old favorite of the government in justifying military conscription, even though this extension of power was eloquently refuted by Daniel Webster during the War of 1812. Webster argued that the Federal Government is, under the terms of the Constitution, entitled only to the aid of the militia of the States and then only "to repel invasion, suppress insurrection, or to execute the laws," and that a general draft would thus circumvent this express limitation. Furthermore, Webster contended that the government cannot use just any means to exercise even its constitutionally granted power. The government's assertion that it could not afford to hire a voluntary army and thus had to resort to conscription in order to exercise its power to raise an army was, according to Webster, "subduing the difficulties which arise from deficiencies of the Exchequer." Webster reasoned that if lack of funds could become an excuse for government to employ drastic means to implement its powers, then that government's own prodigality could become a rationale for despotism.
INVOLUNTARY SERVITUDE A NOBLE DUTY?
But what power could possibly be misconstrued to enable compulsory labor? Clearly, National Service contravenes that section of the Thirteenth Amendment of the Constitution prohibiting "involuntary servitude except as punishment for a crime" However, those who were sent to work camps during World War II were denied relief by the Thirteenth Amendment because they elected to be conscientious objectors. The court held that conscientious objectors could have accepted military conscription, but were privileged to be sent to a work camp. Thirteenth Amendment appeals from military conscription have been denied. In its opinion, the court quoted from the "Selective Draft Law Cases" which upheld the constitutionality of the 1917 Selective Draft Law:
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.
National Service could just as easily be considered as "performance of (one's) supreme and noble duty…contributing to the honor of the nation." "Contributing to the health and welfare of the nation" is a favorite phrase of the Selective Service used to describe conscientious objector work. Terrence Cullinan, a proponent of National Service writes in THE DRAFT (1967), "the trend in Supreme Court decisions makes it clear that public education is related to 'the general welfare of the United States as a whole.'"
The Fifth Amendment of the Constitution attempts to prevent the government from confiscating an individual's property; can it be constitutional then to take an individual away from his property? Is not labor property? In a very real manner of speaking an individual's labor is his "trade"; it is that which he trades for the tangible property he needs. Although the government pays wages to conscripts, it cannot be contended that this is the "going rate" compensation. The fact that the government resorts to compulsion shows that the market value for the labor is not being paid, since market value is in the words of the court (United States v. Miller), "what a willing buyer would pay in cash to a willing seller."
CHALLENGING NATIONAL SERVICE
Fighting National Service in the courts will be difficult. Ordinarily, one must first break a law in order to challenge its constitutionality and have "standing" before the law. When attempting to test the laws regulated by "administrative agencies," such as the Internal Revenue, National Labor Relations Board, or Selective Service, the court maintains that one must make every attempt to seek relief from the particular agency before going to court in order to have standing. Ostensibly these rules are to keep the courts from becoming overburdened with abstract and hypothetical debates about what a law might do, and to make the court the last resort for those that have "exhausted their administrative remedies."
Another rule of court is that if you cooperate too much with the administrative agency, then you have acquiesced to the law and have no standing in court. Often the threshold is so tenuous as not to be discernible to even a skilled attorney, and the court decides after the fact exactly where the point of no return lies. The rich find the administrative remedies; the poor enter court with no standing or no money to take their case to the Supreme Court. Thus they lose their turn and go to jail. Even if an attorney gave $15,000 worth of free time, it would cost $500 just for the "right" to file "a petition for writ of certiorari" before the Supreme Court.
The proponents of National Service on the left claim that it will perform racial and cultural integration and offer economic opportunity for the poor and the black; those on the right maintain that it will straighten out the drug using, sex orgying, long hairs and help build character. Edward Kennedy leads a group that claims that a voluntary army will be all black. They, no doubt, will start moving to initiate a National Service giving exemption for military enlistees. Why is anyone afraid of an all black army? If the economic condition was such that an army career would provide opportunity to blacks, which it does not, why not let them have that opportunity? When prejudice against the Irish was rampant, they found opportunity in the police forces. Likewise the Jews found opportunity in small business.
Conscription is total control of the individual by the State; it is by definition totalitarian. If the United States were to find itself at war no doubt we would all lose certain civil liberties. It might be argued by some that the state does not have the right to suspend liberties even during a state of siege while others might maintain that such revocation of some liberties is at least understandable under such circumstances. But what on earth can justify surrendering our liberties to public works. We must end peacetime military conscription and prevent National Service from becoming law.
Fred Etcheverry is a licensed engineer in Los Angeles. He went to jail for eight months as a conscientious objector, before his conviction was overturned by the Ninth Circuit Court of Appeals in 1965.
NOTES AND REFERENCES
 REPORT OF THE PRESIDENT'S COMMISSION ON AN ALL-VOLUNTEER ARMED FORCE (1970). Copies obtainable from Superintendent of Documents.
 Letter to the author.
 Taft, Robert A.: CONGRESSIONAL RECORD, A 2609, May 31, 1945.
 Cooke, Fred J.: THE WARFARE STATE (New York: MacMillan Publishing Co., 1962).
 Gates, op. cit.
 Taft, op. cit.
 Webster, Daniel, in an address to the House. Copies of original available through the New Hampshire Historical Society.
 C. Gordon Post, et. al, BASIC CONSTITUTIONAL CASES (Oxford University Press, 1948), p. 271.