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JOE MICHAEL COBB, Emigration as an Alternative to the Draft - Ralph Raico, New Individualist Review [1961]

Edition used:

New Individualist Review, editor-in-chief Ralph Raico, introduction by Milton Friedman (Indianapolis: Liberty Fund, 1981).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Emigration as an Alternative to the Draft

JOE MICHAEL COBB*

An iron despotism can impose no harder servitude upon the citizen, than to force him from his home and occupation, to wage offensive wars, undertaken to gratify the pride or passions of his master.

—The Hartford Convention, 18151

THE PROBLEM OF LOYALTY and patriotism in modern society is one so surrounded with emotional tension that only two approaches to the subject are usually observed. In polite circles it may be unfashionable to discuss the subject at all: the assumption that everyone is adequately patriotic and loyal is almost universal, and insofar as one may rarely consider the question of his own ultimate loyalties, so one will not in general doubt his neighbor’s feelings. The second approach to the problem of loyalty and patriotism may be regarded as gauche, but it is not unknown: whenever it is discovered that a person is openly unpatriotic or suspected of disloyalty, the feelings of fear and animosity dominate one’s reactions. Since the rise of nationalism and the appearance in this century of the phenomenon of total war, there seems to be no middle ground for discussion of this question. The task of this article is to raise the question of loyalty in the context of emigration, and to discuss some of the factors surrounding a decision to reject the government of one’s homeland and seek freedom abroad.

It may be an overstatement to characterize a decision to emigrate with the word oppression, especially in reference to a Western nation such as the United States, but oppression is not a quantifiable, aggregative concept, such as per capita income; nor is it a quality easily isolated and tested by sociologists and political scientists, such as the absence of habeas corpus or the secret ballot. Oppression is necessarily an individual assessment of social well-being. The increasing degree to which the subject of leaving the United States to avoid the draft is considered by young men, and the number of recent magazine and newspaper articles about those who have done so, tend to indicate that impressment is no more acceptable in the service of a democratic government than it was under the repressive, feudal regimes of Europe during the last century.

Of all the demands made upon their subjects by European governments that of compulsory military service has been among the strongest influences causing emigration. . . . This enforced service in the army and navy has been among the causes giving to the United States immigrants from Russia, Germany, Denmark, Austria, and Italy.

Conscription has been more of a factor in Germany, from which country thousands of young Germans have emigrated annually in order to avoid compulsory military service. Evidence of this is found in the official announcements of the penalty and punishment to which they have been sentenced. This has been particularly true since 1866, the right of emigration, which had been regarded as a fundamental one, being limited in that year by the restriction that it could not be permitted by emigration to avoid this duty. It was this compulsory service in the army and navy that caused many young men to whom passports were refused to emigrate across the frontiers. In Austria the law rendering every able-bodied man liable to military duty prompted not a few young men to leave the country before they reached the age of twenty.2

It is evident from discussions of the subject with that one per cent of Americans who are currently serving involuntarily, or who face induction within the next few years, that compulsory military service is regarded widely as a bitter imposition on their lives.3

It is not germane here to analyze whether we, in some detached overview, consider military service a burden or a privilege. It is clearly not a sought-after employment; if it were, there would be no need for conscription. Yet it may be unpleasant without being oppressive, if the draftee is resigned to it and regards it as his duty. The majority of adult, male Americans who have served—especially those who fought the three wars—regard a term of military service as the expected thing for any young man to do, as it was indeed for them. It does not seem possible for resisters to organize any effective movement against conscription in the face of this monolithic attitude towards the military; those who try are scorned, those who are inducted soon learn that any attitude other than docile cooperation can be perilous. The concern in this article is with the obstacles placed in the path of that minority who would rather emigrate than perform military service, by a government determined to shore up an anti-liberal institution with illiberal restrictions on a basic freedom.

The rationale for military impressment is cogently stated in the words of Mr. Chief Justice White, in the decision upholding the constitutionality of the World War I draft:

It may not be doubted that the very conception of a just government and its duty to the citizen includes the reciprocal obligation of the citizen to render military service in case of need and the right to compel it.4

The argument is that of the social contract—those who desire the benefits of a free society must bear the costs of those benefits: everyone pays taxes, everyone refrains from violence, everyone serves two years in the army. Oddly, it is not the case that the contrapositive argument is accepted by the government. On the basis of the social contract rationale, a citizen who is willing to forego the privileges of living in the United States should be allowed to emigrate without any further obligations to the United States. That person would have entered into a new social contract, with his chosen country, to pay its taxes, obey its laws, and serve in its army instead. The government of the United States, however, does not permit the nullification of military obligations by emigration.

Although the United States maintains no general barriers to emigration, it is significant that the Selective Service System has in the past operated to deny the right of emigration, and currently maintains regulations which cast doubt upon the legal status of draft-liable emigrants. Only extreme tyrannies impose repressive general laws. The modern state—“absolute, minute, regular, provident, and mild”—imposes piecemeal restrictions, upon only small minorities at one time: a practice guaranteed to maintain a general opinion of support and loyalty. Yet if oppression is piecemeal, one must examine in each case whether a restriction on emigration exists, because a general freedom of exit is fraudulent if those groups who might seek to claim it are expressly kept in.

IT IS NOT COMMONLY realized that the United States imposes any restrictions upon exit. The actual statutes passed by Congress do not explicitly forbid emigration by men of draft age, and it is usually only Acts of Congress which we consider relevant. Under Title I, Subsection 10(b)(1), of the Universal Military Training and Service Act, however, “The President is authorized to prescribe the necessary rules and regulations to carry out the provisions of this title.”5 The regulations so promulgated stitch together a binding network of law with which, entirely on its own initiative it seems, the Executive branch of government has denied young men of draft age a significant human right.6 A detailed examination of the regulations is necessary to make this denial clear. In an attempt to make the avoidance of military service as difficult as possible, the Selective Service regulations provide:

When it becomes the duty of a registrant or other person to perform an act or furnish information to a local board or other office or agency of the Selective Service System, the duty or obligation shall be a continuing duty or obligation from day to day and the failure to properly perform the act or the supplying of incorrect or false information shall in no way operate as a waiver of that continuing duty.7

It is by virtue of this declaration by the Executive of a perpetual duty, without any provision of machinery or conditions under which it may be cancelled, that all citizens and resident aliens of the United States between ages eighteen and twenty-six are legally obligated to perform military service—expatriation or emigration notwithstanding. The details and severity of this regulation will be made clear in the course of this article.

One further regulation of the Selective Service System bears upon the question of emigration in a direct way. It is important to note the wording of the single condition imposed upon the issuing agencies:

The Director of Selective Service, the State Director of Selective Service, or the local board may issue to a registrant a permit to depart from the continental United States, the State of Alaska, the State of Hawaii, Puerto Rico, the Virgin Islands, Guam, or the Canal Zone to any place which is not within any of those areas whenever the registrant’s absence is not likely to interfere with the performance of his obligations under the Universal Military Training and Service Act, as amended. Such permit shall be issued by completion of a Permit for Registrant to Depart from the United States (SSS Form No. 300).8

One might argue that emigration cancels all such obligations, and therefore the issuance of the permit would not “interfere” with their performance; but it is clear on the basis of its past actions that the Selective Service System does not hold such a position. At the present time, a permit is not actually required for exit, but the Selective Service System has indicated that this permit is the only insurance one would have against being declared delinquent and prosecuted. That the Selective Service authorities regard this discretionary power over travel with satisfaction, and are willing to use it, can be inferred from a close reading of the following quotation from the eighteen volume official history of Selective Service during World War II, discussing emigrant aliens (who could presumably use foreign passports to leave the United States with greater ease than citizens):

Finally, alien registrants who had departed from the United States and were no longer residing here were classified IV-C. Such classification was authorized as a practical solution to an awkward situation. There was some doubt and difference of opinion as to the extent of the liability under the Selective Service law for an alien who had departed from the United States.

As a practical matter, however, the System had no means of enforcing the orders of a local board upon an alien outside of the country. On the other hand, the board had to continue processing and reprocessing such cases, to report them to the United States attorney as delinquents and to make other futile motions of this nature. Consequently, a procedure was adopted whereby such registrants were placed in a class not available for service. Under the revised regulations if an alien so classified returned to the United States, he was subject to prosecution for any penalties he had incurred before departing and any subsequent obligations which had occurred for him under the act.

On the whole, this solution was in the best interests of Selective Service. Aliens liable for training and service could not leave the country without the consent of their local boards. The Immigration and Naturalization Service of the Department of Justice cooperated wholeheartedly in this regard. Thus, the control of the System over the departure of aliens and its inability to enforce orders, after the alien had departed, appeared to justify the adoption of the IV-C classification procedure.9

Here is an excellent example of bureaucratic thoroughness. In spite of “some doubt and difference of opinion as to the extent of the liability . . . for an alien who had departed from the United States,” rather than remove such emigrant alien from the rolls as no longer liable for military service to the United States, the Selective Service authorities decided to keep his dossier for possible use against him if he should ever return, perhaps to visit friends or on vacation. On the other hand, if the person should attempt to obtain permission from the government before departing, the police powers of the Department of Justice would be there to intervene.

ALTHOUGH INVOLVING other factors as well, the treatment of Japanese Americans during the Second World War provides an interesting study of one group of people obviously subject to oppression who were denied the chance to emigrate by Selective Service, and subsequently ordered to report for induction. Again from the official history, the Selective Service authorities obliquely admit this denial of the right of emigration:

The alien problem was one of the first to demonstrate the effectiveness of coordination between local boards and their State Headquarters. On the west coast large numbers of Japanese registrants began asking permission from their local boards to leave the United States. This was a new and troublesome situation and the boards turned to State Headquarters for advice. The pattern was uniform enough from board to board that the State Directors of this part of the country felt the problem must be met directly and promptly. They therefore held meetings with the Japanese leaders of the Pacific Coast States who indicated their disapproval of such action by Japanese registrants. The State Headquarters concerned then recommended that the boards disapprove the requests.10

The decision of the individual concerning his loyalties and attitudes toward various duties was never considered relevant; a group policy was formulated with Procrustean disdain. “Thus, it was that the initial contact of Selective Service with many Japanese American and Negro registrants was not with men who lacked patriotism, but with those who to a considerable extent were just not ‘sold’ on the war.”11

Prior to Pearl Harbor, Japanese Americans were drafted like other ordinary citizens, but from February 1942 they were considered by the War Department as generally unacceptable for service.12 In January 1944, the Selective Service System altered its policies, however, pursuant to a War Department decision of the preceding November. The new approach was to screen every eligible registrant, and to induct those found acceptable.13

The reintroduction of Selective Service for Japanese Americans in January 1944 came without advance notice and apparently as a rather complete surprise to many residents of War Relocation Authority Centers. Almost immediately, the number of requests for repatriation or expatriation showed a marked increase. . . . This was done not only by men disloyal to the United States, but also by those whose interest was solely draft dodging. Some of the latter could not even speak the Japanese language and had no relatives, property or other apparent interest in Japan.

In a War Department memorandum, dated March 30, 1944, it was stated that requests for repatriation or expatriation to Japan made by Japanese American citizens who were liable for military service would be considered an effort to evade such duty if filed after January 21, 1944, or when the registrant’s induction was imminent.14

It is clear that the government maintained an exceedingly hostile attitude toward those who sought to emigrate as a means of cancelling military obligations.

In general, Japanese Americans who made strong enough statements of disloyalty during their individual screenings by Selective Service after January 1944 would have been found unacceptable to the military authorities, thereby avoiding the draft without actually being expatriated. By its own admission, however, the Selective Service System was so inefficient and uncoordinated with the War Department that many clearly disloyal registrants were still classified as acceptable even months after a change in their status or opinions.15 When these registrants were occasionally ordered to report for induction, which they refused to do, the courts consistently upheld the authority of the government to deny the right of emigration, to detain the individual, and to order him into the Army if he should be classified as acceptable. In the case of Hideichi Takeguma et al., defendants were convicted of failing to report for induction even though the government had granted their requests for expatriation, while detaining them in fact for the duration of the war. The court held:

It remains to be considered whether or not the granted expatriation request by the other two appellants, together with the order of exclusion and segregation, are so inconsistent with the order to report for induction as to void the latter order. . . . If, as these two appellants claim, this completed act of expatriation transformed them from United States citizens into subjects of Japan, hence alien enemies, appellants have not gained their goal for the reason that alien enemies who are acceptable to the military authorities (and these appellants were) still may serve in the land and naval forces of the United States.16

The injustice of this practice was remarked by one District Court Judge, who acquitted other defendants on different grounds:17

It is shocking to the conscience that an American citizen be confined on the ground of disloyalty, and then, while so under duress and restraint, be compelled to serve in the armed forces, or be prosecuted for not yielding to such compulsion.18

This case, Kuwabara v. United States, is mentioned here only because it stands in such contrast to the general attitude of the courts, and the Selective Service System, towards the role of citizens in respect to the state. The right of emigration and the social contract rationale for duties to the state both imply a liberal, individualistic orientation: an individual may not transgress the laws of society, but the decision to obey or to emigrate is his own; his loyalty is something he extends to the state, not something the state can demand by reason of an accident of birth.

DURING THE PAST DECADE the Supreme Court has acted to restore to American citizens many rights of foreign travel which formerly had been infringed by the Passport Division of the Department of State, and by Congress.19 Mr. Justice Douglas, delivering the opinion of the Court in Kent v. Dulles, wrote:

The right to travel is a part of the “liberty” of which the citizen cannot be deprived without due process of law under the Fifth Amendment. So much is conceded by the Solicitor General. In Anglo-Saxon law that right was emerging at least as early as the Magna Charta. . . . Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. . . . Freedom of movement is basic in our scheme of values.20

With language this strong, one might speculate that the Supreme Court would guarantee a draft-liable individual the right to emigrate, but the Supreme Court has not yet addressed itself specifically to these questions.21 Given the emotional atmosphere surrounding the issue of compulsory military service—and resistance to it—and considering that the courts have never been very receptive to the pleas of citizens against the Selective Service laws,22 the question is moot. This writer was unable to locate any decisions relating directly to the question of emigration per se, and by the nature of the crime, there are no decisions involving those who fled and have not been brought to court by reason of their permanent residence abroad. Apparently extradition for draft evasion has not been widely used, although several recent indictments may yet alter that; we may soon see more vigorous prosecution of dissenters. Unfortunately for our purposes here, the willingness of the Selective Service System to allow delinquents to avoid criminal prosecution by reporting for immediate induction has probably very much reduced the chances of these points of law being considered by the courts.

The ease with which a person may leave the United States, especially the ease with which Americans can enter Canada or Mexico, is well known. The point of this discussion has not been to assert that a person would be physically prevented from departing if he were liable for conscription. Enforcement is not adequate to check all tourists passing into Canada and Mexico in order to apprehend draft evaders. Our concern, however, is with the absence of any lawful means of cancelling the military obligation through emigration, and the continuing liability and threat of apprehension and prosecution to a draft-liable individual who chooses to emigrate rather than serve. To a classical liberal, the accident of being born in Detroit rather than Windsor, or Seattle rather than Vancouver, for example, ought to have no bearing upon the freedom of that person to renounce loyalty to the United States and seek Canadian citizenship, and to enjoy all privileges thereof—including the treaty rights of traveling and carrying on business in the United States. Under present law, the accident of birth is all-important: the government does not regard citizenship as an accident.

The anti-liberal attitude of the United States government may be merely a reflection of the prevailing majority opinion—that if a man will not loyally serve the country of his birth, he ought to be permanently exiled or imprisoned; but this is hardly an attitude conducive to or compatible with other widely held beliefs in the United States, such as freedom of opinion and speech, the right to travel, etc. It is not the case that a person who emigrates from the United States forfeits all liberty and rights enjoyed by American citizens, for Britons, Canadians, Australians, and many other nations share the liberal heritage with citizens of this country. Americans would be very disturbed if France, for example, were accustomed to detain and conscript United States citizens of French ancestry vacationing in Paris, even if only first-generation immigrants were so liable. The United States government, on the other hand, actively engages in the harassment of expatriates who emigrated in order to avoid military service. The administrative regulations of the Department of State, for example, provide:

Aliens ineligible to citizenship or who departed to avoid service in the Armed Forces. An alien shall be re-refused a nonimmigrant visa under the provisions of section 212(a) (22) of the [Immigration and Nationality Act, as amended] if, having other than nonimmigrant status, he departed from or remained outside of the United States on or after September 8, 1939 to avoid or evade training or service in the United States Armed Forces.23

The purpose of a regulation such as the above can only be to place as large a penalty as possible upon foreign nationals, unfortunate enough to have been born in the United States or to have lived here, who did not make the decision to emigrate until after age eighteen, when it was too late to escape the military obligation lawfully (since the requirement to register and serve commences on that date). In terms of practical enforcement, though, it would seem that Canadians would be less likely to be affected by this hostile attitude because of a loophole arising from cordial United States-Canadian relations:

The provisions of section 212(a) (26) of the [Immigration and Nationality Act, as amended] relating to the requirements of valid passports and visas for nonimmigrants are waived by the Secretary of State and the Attorney General, acting jointly, in pursuance of the authority contained in section 212(d) (4) of the Act under the conditions specified for the following classes:

(a) Canadian nationals, and aliens having a common nationality with nationals of Canada or with British subjects in Bermuda. A visa shall not in any case be required of a Canadian national, and a passport shall not be required of such a national except after a visit outside of the Western Hemisphere. . . .24

Although the probabilities of arrest are smaller for those draft evaders who might become Canadian citizens, the permanent danger of imprisonment still represents a serious threat to all former Americans, especially if the Attorney General were to become more concerned with emigre draft dodgers and were to have such persons placed under surveillance. It is already the case that some draft-liable emigrants to Canada have been arrested at the border upon returning to the United States to visit friends or conduct business.

ALTHOUGH THE PRESENT Selective Service regulations made pursuant to the Universal Military Training and Service Act deny the social contract premise which defends the Act, there are marginal circumstances by which many people desiring to emigrate would be able to avoid the trap which closes on one’s eighteenth birthday. Once a person (whether citizen or alien) has registered with the Selective Service System, his only recourse if he wishes to emigrate is either to violate the law and risk imprisonment, or to fulfill the required term of service beforehand. Even aliens who wish to return to their own countries are no less subject to this unfortunate dilemma than citizens victim of an “accident of birth.” Aliens do, however, have more flexibility with regards the registration requirement, if they know the construction of the regulations.

Certain categories of aliens who can claim a permanent foreign residence can qualify for the status of “non-residents,” and not be required to register. The most likely persons to avoid the military dilemma in this way are students, who as non-residents would not have to register for Selective Service and not be faced with the age-extending problem of the II-S classification. These persons would be expected to leave the United States upon completion of their studies, but would not be barred from returning to or later seeking citizenship in the United States. For a person with dual citizenship—discussed below—it would be necessary to emigrate to his other homeland prior to the age of eighteen, and then apply for a non-resident student visa for college in the United States.

Aliens not qualifying for a non-resident student visa would be required to register with the Selective Service System at age eighteen or within ninety days after entering the United States. The regulations give aliens the option of declaring themselves resident or non-resident, the former being subject to conscription immediately and the latter being allowed one year to finish their business and depart or be registered as resident aliens. Because of the diplomatic problems involved in drafting aliens, however, the government has provided SSS Form No. 130, which allows resident aliens to declare that they do not wish to perform military service, and that they accordingly foreswear the opportunity ever to obtain American citizenship. The execution of this form is irreversible—even if the person decided later to serve in the military, he could never obtain American citizenship; and if he subsequently departed from the United States, he might be denied re-entry under the State Department regulations quoted above, unless he could utilize the Canadian loophole. The existence of the possibility of obtaining such an exempt alien classification, Class IV-C, merely by renouncing future United States citizenship would suggest interesting possibilities for dual citizens and pre-eighteen emigrants; but the liberal ideal is far from being realized when ordinary citizens cannot escape impressment similarly.25

The most interesting category of aliens involves those born with both United States citizenship and some other citizenship. Such persons are typically those born abroad of United States parentage, or born in the United States of foreign parents. Such dual citizens usually must choose between their two “homelands” before age twenty-five, at which time the choice is deemed to have been made for them by virtue of residence. For purposes of qualifying under Selective Service in some non-liable category, the choice for non-United States citizenship would have to be made prior to the eighteenth birthday; but since the person would still be a minor, this would have the beneficial effect of not damaging the possibility of a change of heart later—whereupon the person could regain full, natural-born American citizenship. To avoid as much as possible the appearance of one’s name on government lists, the correct procedure of choosing non-United States citizenship involves obtaining documents from the foreign government, passport, health certificate, drivers license, etc., establishing that citizenship, rather than executing any renunciation of United States citizenship because the latter is automatically terminated when foreign citizenship is obtained. To escape Selective Service, it is only necessary to successfully terminate United States citizenship prior to age eighteen, and, if returning to the United States, then to execute SSS Form No. 130 and obtain a IV-C exempt alien classification.

Because of the many anti-liberal aspects involved in being a citizen of some particular country—passport restrictions, draft liabilities, taxation, and property penalties—it would seem desirable from the standpoint of a classical liberal to allow the individual himself to make the choice of citizenship (natural-born if possible, because naturalized citizens are restricted in many countries in minor ways, as in holding public office or residing abroad for long periods) rather than leaving this highly significant choice up to an accident of birth. For these reasons, it would not be surprising if in the future a large number of Americans were to spend a summer or a year in Canada, coinciding with the birth of a child (the timing of birth could be accurately controlled within a month’s vacation period by birth control measures), especially if conscription is not soon abolished in the United States. Such children could be reared and attend school in the United States, and by qualifying for a non-resident visa even obtain a college degree in this country. Once such children had passed military age (twenty-sixth birthday) they would still be free to return permanently and, if they desired, take out United States citizenship.

THE ONLY LAWFUL WAY in which a United States citizen can avoid military service through emigration is to depart from the country before age eighteen and renounce his citizenship once abroad. Legally, it would be absolutely necessary to renounce United States citizenship, since all citizens, whether at home or abroad, must register at age eighteen—and the goal is not to register. Such a person would become in effect a stateless person for the period of time required for naturalization in his new homeland, and would not qualify for a passport during this period (though limited foreign travel would be possible with documents of identification obtainable from most governments). Persons planning to maximize their freedom and violate the law if necessary in the short run, provided likelihood of arrest is minimal, would probably be able to cut the period of time as a stateless person to two years (under current United States passport regulations) simply by acquiring a new passport immediately before departing and not renouncing citizenship at all, but waiting for it to become forfeit when they acquire their new citizenship after five years (Canada or United Kingdom). This same tactic could be used without violating the law by emigrating prior to age fifteen.

In all of the above examples, the cooperation of the individual’s parents would be absolutely necessary, inasmuch as the person must be a minor to emigrate and avoid military service thereby. In the extreme case, the parents would accompany the child to his adopted country. It might not be unreasonable to expect a family of Quaker or pacifist convictions to take this step with the fate of their minor children in mind, although most parents would consider the suggestion absurd. A more likely case might be the sending of children abroad for school or college with the knowledge that they would initiate foreign naturalization proceedings as soon as possible. Except for Canadian schools, this would mean not seeing one’s children for some time unless the parents themselves went abroad on vacation. If the realization of the full impact of conscription did not occur to the individual until the age of seventeen, even then it would not be too late to decide upon a Canadian or British university, and parents might be much more receptive to that suggestion than to any other. The prestige of study abroad might outweigh any objections they would have to the suggestions of emigration and renunciation of citizenship. The laws of citizenship and nationality are intricate, and it is unlikely that a teenage boy would have the knowledge or sophistication to research the problems adequately. For this reason, the above cases are purely hypothetical; but for purposes of this article, it is useful to set forth the full picture of Selective Service and emigration law, loopholes included. If the fact that United States military obligations commence at age eighteen—and not at birth—were more widely known, it seems likely that fewer draft resisters would attempt conscientious objection status, which requires two years of menial alternative service as objectionable on libertarian grounds as military service, or fall afoul of the law when finally fleeing the United States to avoid impressment. It seems intellectually more honest to confront one’s attitudes toward military service and loyalty to a government which compels it, and to reject the government outright through emigration, rather than to attempt to evade the law—in effect taking the benefits of a country without paying the costs. Most individuals, however, are caught in the Selective Service trap simply because they innocently register at age eighteen without realizing that they could have taken other options.

The decision to renounce United States citizenship is one that few Americans would ever make. Certain metaphysical characteristics attach to the citizenship of one’s native land that tip the scales heavily against giving it up, although one might live abroad for many years. Even in this cosmopolitan age, we see Britons and expatriate Americans living in every major city of the world, with no diminution of loyalty and attachment to their homes. Our purpose in this article has been to discuss the surprising denial of freedom to an oppressed minority who might want to escape through emigration; a minority which does not share the loyalty of most. In the nineteenth century, America welcomed with open arms the Germans and Eastern Europeans who fled military service and burdensome taxation in their homelands. Now that America itself has shouldered the double burden of world empire and domestic dirigisme we ought to be less hostile and intolerant towards those among us who still remember the old American dream and want to follow it to whatever land it has now gone.

NIR_1360-016_figure_093

The COUNCIL FOR A VOLUNTEER MILITARY is a non-partisan organization aiming to elevate public debate on the merits of voluntarism.

The COUNCIL will be happy to receive, and will attempt to answer any questions concerning the draft in America, and will utilize any information regarding those who wish to abolish it.

The COUNCIL invites interested persons to write for more detailed presentation of its policies and positions, and for membership information.

[* ] J. M. Cobb is Editor-in-Chief of New Individualist Review. He received his A.B. in Economics from the University of Chicago in 1966, and is currently doing graduate work there.

[1 ]The Proceedings of a Convention of Delegates (Hartford, Conn., 1815), p. 11.

[2 ] F. J. Varne, The Immigrant Invasion (New York: Dodd, Meade and Co., 1913), pp. 43-44.

[3 ] Cf. “Evading the Draft: Who, How and Why,” Life Magazine, Dec. 9, 1966, pp. 40-43.

[4 ] Selective Draft Law Cases, 245 U.S. 366, 378 (1917). The Court cites Vattel, Law of Nations, Book III, chaps. i and ii. In addition the Government argued: “Compulsory military service is not contrary to the spirit of democratic institutions, for the Constitution implies equitable distribution of the burdens no less than the privileges of citizenship.” 245 U.S. 366, 368.

[5 ] 62 Stat. 619.

[6 ] Cf. Universal Declaration of Human Rights (New York: United Nations, 1948), Articles 13 and 15.

[7 ]Code of Federal Regulations, Title 32, chap. xvi, sec. 1642.2. In Fogel v. United States, 162 F.2d 54 (1947), the court upheld a conviction over appellant’s argument that the statute of limitations applied. Mr. Justice Sibley, dissenting, wrote: “The theory of the conviction is that by doing nothing he renewed his crime every day to the date of the trial; which amounts to saying there is no statute of limitations for this offense. This seems to me not to be in accord with authority, when the thing which is made a crime is the failure to perform a continuing duty, when nothing at all happens after the crime became complete.” Ibid., p. 56. See note 21 below.

[8 ]Code of Federal Regulations, Title 32, chap. xvi, sec. 1621.16. Emphasis supplied.

[9 ] U. S. Selective System, Problems of Selective Service; Special Monograph No. 16 (Washington: Government Printing Office, 1952), Vol. I, Text, pp. 117, 120.

[10 ]Ibid., pp. 222-23.

[11 ] U. S. Selective Service System, Special Groups; Special Monograph No. 10 (Washington: Government Printing Office, 1953), Vol. I, Text, p. 67.

[12 ]Ibid., p. 117.

[13 ]Ibid., pp. 123-24.

[14 ]Ibid., pp. 128-29.

[15 ]Ibid., pp. 127, 136.

[16 ] Hideichi Takeguma v. United States, 156 F.2d 437, 440 (1945).

[17 ] Defendents were in fact incarcerated by the internment center authorities and denied the opportunity either to obey or disobey the order to report for pre-induction physical examinations.

[18 ] Kuwabara v. United States, 56 F. Supp. 716, 719 (1944).

[19 ] E.g., Kent v. Dulles, 357 U.S. 116 (1957); Aptheker v. Secretary of State, 378 U.S. 500 (1963); and United States v. Laub, 385 U.S. 475 (1967).

[20 ] 357 U.S. 116, 125-26.

[21 ] There is no decided Supreme Court case concerning the application of the statute of limitations vs. the continuing duty concept. The lower courts in general follow Fogel v. United States, 162 F.2d 54 (1947), but two recent cases, Graves v. United States, 252 F.2d 878 (1958), and Venus v. United States, 266 F.2d 836 (1959), both in the Ninth Circuit, show a marked hesitancy to follow the continuing duty theory of Fogel. If the precedent of Fogel is overturned by the Supreme Court when an emigration case is finally decided—as authority would suggest; cf. United States v. Irvine, 98 U.S. 450 (1879), Prendergast v. United States, 317 U.S. 412 (1943), and Fiswick v. United States, 329 U.S. 211 (1946)—emigration as a practical method of nullifying Selective Service obligations after five years would be established, provided the statute of limitations applied to the particular case. The right of emigration as a cancellation of Selective Service obligations, however, will not be established merely by overturning Fogel, because the concept of social contract cancellation through emigration implies an immediate termination of duties, not just an acquisition of immunity from prosecution after five years. There is further the problem that the Government might successfully argue to the Supreme Court that the statute of limitations is suspended during the period of the emigrant’s residence abroad, under the provisions against “fugitives from justice.” 18 U.S.C.A. 317.

[22 ] Cf. United States v. Cornell, 36 F. Supp. 81 (1940); United States v. Garst, 39 F. Supp. 367 (1941); United States v. Herling, 120 F.2d 236 (1941), affirming United States v. Rappaport et al., 36 F. Supp. 915 (1940).

[23 ] Code of Federal Regulations, Title 22, chap. i, sec. 41.91 (a) (22). Italics in the original. The restriction is broadened by the Act itself to include immigrant visas also, 66 Start. 184.

[24 ] Code of Federal Regulations, Title 22, chap. i, sec. 41.6 Italics in the original.

[25 ] The person who might obtain a IV-C classification by executing SSS Form No. 130 must be distinguished from those emigrants fortunate enough to have obtained a IV-C classification from their local boards under C.F.R., Title 32, chap, xvi, sec. 1622.42(c), which provides: “In Class IV-C shall be placed any registrant who is an alien and who has departed from the United States. Such alien shall be placed in Class IV-C even though he is a delinquent but this classification shall in no way relieve him from liability for prosecution for violation of the selective service law. If any registrant so classified under the paragraph returns to the United States, his classification shall be reopened and he shall be classified anew.” See also the quotation cited in note 9 above.