In the discussion thread: Fired federal employees have limited route for challenging dismissals [View all]
Response to James48 (Reply #5)
Wed Jun 13, 2012, 04:53 PM
happyslug (14,318 posts)
6. The 14th does NOT apply to the Federal Government, only the 5th Amendment's Due Process clause apply
You have to remember the 14th made is a FEDERAL guarantee that each STATE will give people Due Process and Equal Protection of the Laws, it did NOT address FEDERAL DUE PROCESS for that was already covered by the Fifth Amendment.
No person shall ... deprived of life, liberty, or property, without due process of law;... .
nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Given that Selective Service is a FEDERAL ACTION, any attack is via the FIFTH AMENDMENT NOT the 14th. The problem with such an attack is the US Supreme Court has UPHELD previous drafts and Selective Service Acts on the grounds that is a power Congress retains. i.e. Congress has the right to draft whoever it wants (The best example of this was the Doctor's draft of the 1950s and 1960s, even if you had previously served in the Military, any doctor, upon graduation from medical school, could be drafted into the service for the Military needed Doctors (The doctor's draft applied even to women). Thus if you want to attack the present Selective Service System,you have to work around the fact Congress passed drafts of men only during the Civil War, WWI, WWII, Korea and Vietnam. Given that the Equal Rights Amendment was never ratified, it can NOT be used in any constitutional challenge to the draft.
Another problem is the Fifth was passed with the Second, and the Second clearly refers to the "Militia" and under the laws THE SAME CONGRESS THAT PASSED THE BILL OF RIGHTS ALSO PASSED THE MILITIA ACT OF 1792 (and was repassed in 1795. with some corrections, but no actual changes, after the Bill of Rights was adopted).
The 1792 Militia Act clearly required "ALL WHITE MALES" to serve in the Militia (The post Civil War Amendments clearly made the Term "White" to mean "ALL" thus including the then newly freed African Americans in the Militia of the US). Thus ALL MALES were subject to military service under the Fifth Amendment at the time the Fifth was adopted and that has been good enough argument for the Supreme Court ever since.
Side Comment. I see Scalia supporting a draft of men only, I have my questions as to Roberts and Alito (Thomas position is unclear in my mind, he more often then note a lap dog to Scalia, but has at times dissented from Scalia over odd things, thus makes him a question mark as to the draft). Scalia is an older conservative who tends to support National Unity over Individual rights, thus would tend to support a draft of men only, given in combat, if a draft is needed, it will be for infantrymen (i.e. boots on the ground).
Robert and Alito is of the post-Reagan Conservatives, Individual right is supreme to them, even at making the country worse (i.e. more important to leave individuals to have the freedom to pollute, then to protect the majority of people from such pollution). Thus Roberts and Alito may very well oppose a draft for it restricts individual "freedom" i.e. the right to run away while the rest of the country is destroyed (A position old fashion conservatives like Scalia would reject). Thus Alito's dissent may very while reflect his attitude to the draft, i.e. economic drafts are acceptable (i.e. only job is to join is the Army is alright to them) on the other hand FORCING people to fight is an attack on freedom, even if the only way to save the country is to draft people to defend the country (i.e. it is better for the country to be destroyed then to draft the rich).
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The 14th does NOT apply to the Federal Government, only the 5th Amendment's Due Process clause apply
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