The New York Times had an article in its magazine over the weekend about U.S. military personnel fleeing to Canada because they don't want to fight in the Iraq war. The point of the article is that

the Canadian House of Commons is slated to debate a resolution that would allow conscientious objectors “who have refused or left military service related to a war not sanctioned by the United Nations” to apply for residency in Canada. The phrasing is vague but the intent is not. The war in question is the Iraq war, and the resolution represents the culmination of a four-year debate about what to do with the small but steady stream of American soldiers who have fled across our northern border to avoid fighting in Iraq.

The Canadian government is taking up this measure because human rights lawyers in Canada are unable to show that American war resisters are "refugees" under Canadian immigration law. When things don't work out in the courts, turn to the legislature to pass a law.

During the Vietnam war, Americans fled to Canada to avoid the draft. Canada took in these young man, some of whom certainly would have been killed or maimed had they been drafted to Vietnam. Since we don't learn from our mistakes, this country is mired in another quagmire that we can't get out of. The difference is that there is no draft this time around. But American soldiers still have to follow orders or face severe punishment for refusing to return to Iraq for another tour of duty. According to the article, quoting a soldier named Justin Colby,

Most of the [war resisters] say they joined the military in part out of patriotism. “I thought Iraq had something to do with 9/11,” Colby says, “that they were the bad guys that attacked our country.” But unlike Hinzman, most did not apply for conscientious-objector status. They tend to say they aren’t opposed to all wars in principle — just to the one they were ordered to fight. It wasn’t until Colby arrived in Iraq that he started to see the conflict as “a war of aggression, totally unprovoked,” he says. “I was, like, ‘This is what my buddies are dying for?’ ” Midway through his tour, he decided: “I’m never going to do this again.” He went AWOL the day before his unit left to train for a second deployment. [Colby's lawyer] House says that more than two-thirds of his clients have been deployed to Iraq at least once. “One is resisting a third deployment.”

There's an old saying in American law: just because something is unfair does not mean it's illegal. Sometimes we hear a variation on that: just because something is not fair does not mean it violates the U.S. Constitution. Indeed, the Constitution protects fewer rights than you might think. Once you get past free speech, freedom of religion and rules guaranteeing criminal suspects a fair trial, it's slim pickings.

Isn't there anything in the Constitution that allows a soldier to back out of his commitment for a war that he no longer supports? Actually, a cold reading of the Constitution would help these soldiers. It's in the Thirteenth Amendment, enacted after the civil war as a means to help the freed slaves. That provision reads:

Neither slavery nor involuntary servitude, except as a punishment for crime where of the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

That's right: slavery or other forms of involuntary servitude are illegal. You can't force someone to do things against their will. So doesn't the Thirteenth Amendment prevent the government from mandatory military service? The answer is no. In the case of Butler v. Perry (1916), "The Supreme Court . . . ruled that the Thirteenth Amendment does not prohibit mandatory military service in the United States."

In that case, the Supreme Court reasoned:

The 13th Amendment declares that neither slavery nor involuntary servitude shall exist. This Amendment was adopted with reference to conditions existing since the foundation of our government, and the term 'involuntary servitude' was intended to cover those forms of compulsory labor akin to African slavery which, in practical operation, would tend to produce like undesirable results. It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state, such as services in the army, militia, on the jury, etc.

Despite its broad language prohibiting involuntary servitude, the Supreme Court in 1916 interpreted it narrowly, finding that it does not cover military conscription. That case is still binding today, because the Supreme Court has not overruled it. But that does not mean that the Supreme Court cannot overrule this precedent. It does that all the time. As I write this, the Supreme Court is poised to re-interpret the Second Amendment to make it much more difficult for the government to enact gun control laws. In order to do this, the Supreme Court would have to overturn or seriously modify one of its rulings from 1939 which ruled that the Second Amendment only covered the rights of a state militia.

The problem with the Second Amendment is that it's poorly worded. It reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." No one knows what this language means. There are too many commas and it does not conclusively tell you who enjoys this right. True, the Second Amendment makes reference to "the right to bear arms." But in the same sentence, it makes reference to "A well regulated militia." The Supreme Court might say that the Second Amendment covers both the rights of a militia AND the right to bear arms as a citizen. That would be a compromise finding, and it would certainly reflect an expansive reading of individual liberties, provided your idea of freedom is carrying a pistol.

If the Supreme Court is willing to creatively interpret the Second Amendment to guarantee the right to carry a handgun to defend yourself, why won't it interpret the Thirteenth Amendment to prevent the government from forcing people to fight in a war they don't support? Is there anything more coercive than forcing someone to be a soldier, taking away from their homes and their families to risk life and limb in a foreign land with the possibility of death? I don't think so. It's a sad commentary that decades of pressure from the National Rifle Association and other guns-rights groups has compelled the Supreme Court to re-consider one of its precedents on the Second Amendment, but no one is clamoring for a re-interpretation of the Thirteenth Amendment to include forced military conscription.