This is the sixth post in the Law and the Multiverse Retcons series, in which I discuss changes in the law (or corrections in my analysis) that affect older posts. Or in this case the book The Law of Superheroes as well as some older posts about drafting superheroes.
The impetus for this Retcon came from a letter (that’s right, a real, physical letter!) I received from a doctor in Tennessee. She wrote:
You doubt that there could be a superhero draft, because of the intrinsic unfairness. However, there was a specific doctors’ draft during World War II, Vietnam, etc., which could serve as a model for [conscripting] mutants and resident aliens.
Physicians could be and were drafted despite being middle-aged, 4F (the thought being that if you could get to your office, you could serve), or having already served.
Although I attended medical school soon after the institution of the volunteer army, this was still a source of fearful discussion amongst my male classmates and professors.
The doctor draft was indeed a real thing, and it extended well into peace time. It was expressly held constitutional by the Fifth Circuit in Bertelsen v. Cooney, 213 F.2d 275 (5th Cir. 1954):
Neither is appellant entitled to any relief under the Fifth Amendment because, unlike the Fourteenth Amendment, the Fifth contains no equal protection clause. In order to invoke the Fifth Amendment to secure relief against inequality, appellant must show that the inequality practiced against him has been so flagrant as to amount to a denial of due process, and this he has not done.
The Act extends to all doctors and dentists under the age of 50, and to ‘allied specialist categories’, which by the express terms of the Act includes, but is not limited to, veterinarians, optometrists, pharmacists and osteopaths, imposing upon them all alike the obligation of military service when called by the President under the terms of the Act. In our opinion such a classification satisfies the requirements of the Fifth Amendment.
Bertelsen, 213 F.2d at 277. The court also denied relief under the Thirteenth Amendment prohibition on involuntary servitude, as is typical in draft cases.
However, it is arguable that a draft of superpowered individuals could be such a flagrant inequality as to violate Fifth Amendment due process. This would be especially likely if Congress picked specific superpowered individuals rather than superpowered individuals as a class.
In fairness to us, however, I don’t think we actually concluded that a superhero draft would be unlikely to pass constitutional muster. To quote from The Law of Superheroes:
… Congress has a lot of authority here. It certainly has the ability to authorize and fund a superhuman branch of the military.
But does it have the ability to force superhumans to register and work for the government? Maybe. Conscription is not directly addressed by the Constitution, but it has long been held that conscription is part of Congress’s power to raise armies, and the Supreme Court tends to make unusually strong statements of congressional power when faced with this particular issue.
But directly targeting specific individuals raises due process implications far beyond the skewed drafts of the nineteenth and early twentieth centuries. The draft is a pretty huge imposition upon civil rights, and while it is an imposition Congress is permitted to make, the Supreme Court might balk at permitting Congress to go so far as to shed even the pretense of fairness.
In the case of superheroes, however, it may well be that the courts would permit such an action, as the draft power is pretty sweeping, and the courts have not really displayed any willingness to limit that power before. If Congress thinks it needs the assistance of a uniquely capable citizen to fight a war, the courts would most likely not object.
So although the doctor draft and the associated cases are a notable gap in our research, I don’t think our correspondent disagrees with us as much as it might appear. Nonetheless, I felt the letter was thoughtful and deserved the full Retcon treatment.