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Artful Dodger

Updated: Aug 27, 2023

With fewer than 300,000 men enlisted in the Army, the United States declared war on Germany in April, 1917. Recognizing this shortfall of manpower, on May 18, 1917, the Selective Service Act authorized a military draft for men aged 21-45 to expand the armed forces to fight the War to End All Wars. Not everyone was thrilled. Indeed, some men and women printed up various circulars in which they specifically claimed that the First Amendment to the United States Constitution protected their speech against the draft. In these documents, they called the draft “involuntary servitude” in violation of the Thirteenth Amendment. At least some of the flyers were printed by the Socialist Party of Ohio. See, Hammerschmidt v. United States, 287 F. 817 (6th Cir. 1923). A group of people who may or may not have been Socialists busied themselves with handing out these documents wherein they claimed a free people should not submit to this worst form of involuntary servitude (suggesting, perhaps, that they missed the history lesson explaining why the Thirteenth Amendment was needed in the first place, but I digress.)

Several of these folks in Ohio were charged with conspiracy to defraud the United States by impairing, obstructing, and defeating the lawful function of the government of the United States. The act in furtherance of this conspiracy was the distribution of these pamphlets encouraging men to dodge the draft refuse to register for conscription.

Famously, on the eleventh hour of the eleventh day of the eleventh month of 1918, an armistice agreement ended active fighting in the war. But, it was not until July, 1919 that the defendants went to trial. They were convicted of conspiracy to defraud the United States and appealed. The Court of Appeals for the Sixth Circuit affirmed the conviction. Id. Judge Denison dissented. Id. at 825

He began his dissent by explaining that if the Supreme Court of the United States takes cert, they should direct their attention to his more correct view of the law (which – wow - how fun would it be to write briefs like that?!) The thing is, he was right. He explained that these defendants believed a law to be unconstitutional – which would prove to be an incorrect belief. However, that was actually unknown at the time as this was the first draft since the Civil War which predates the Thirteenth Amendment. They themselves did not appear to be subject to conscription, but were expounding their view and thereby encouraging others, who would need to register under the law, to defy the law on constitutional grounds. He noted that there was no intent to defraud the United States. He walked through prior decisional law and concluded that even disobeying the draft law itself should not be understood as defrauding the United States. Not bad for a guy who never even went to law school.

Anyway, as it turns out, the Supreme Court of the United States did take cert. The Chief Justice (who, coincidentally, when he was president of the United States, appointed Judge Denison to the Court of Appeals for the Sixth Circuit – small world) wrote the unanimous opinion agreeing with Judge Denison that the indictment should have been quashed. Hammerschmidt v. United States, 265 U.S. 182 (1924). The defendants did not conspire to defraud the United States.

Fast forward almost 100 years in a case having absolutely nothing to do with questioning the validity of conscription in wartime and instead involving words and actions intended to impede the peaceful transfer of power. These words and actions sought to encourage others to assist in obstructing an official proceeding for the purpose of defeating the results of a presidential election (did I just give too much away?) Here the charges are a wee bit more emphatic than the Socialists for their pamphlets – here the charges are conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding and conspiracy against rights.

So, after these charges become public, a defense attorney walks into a tv interview and says there’s a case – a case on point – this thing has already been decided. It’s free speech, he says – First Amendment (and who doesn’t love the First Amendment?)

The case that lawyer was referring to was the very case in which 13 distributors of flyers encouraged people to refuse their draft notices. While the Court did quash those indictments, it also said,

“[t]o conspire to defraud the United States means … to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane, or the overreaching of those charged with carrying out the governmental intention.”

Hammerschmidt v. United States, 265 U.S. 182, 188 (1924).

Pretending that a free and fair election was “stolen” was, at a minimum, dishonest. Encouraging an assault on the United States Capitol and the members of Congress within that building for the purpose of stopping the certification of the vote from that election certainly seems to be intended to obstruct a lawful governmental function. That is not the same as passing out circulars seeking to dissuade men from responding to draft notices because of a belief that conscription in wartime amounts to involuntary servitude in violation of the Thirteenth Amendment. It’s not even close.

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