In the case Rostker v. Goldberg, 453 U.S. 57 (1981), the U.S. Supreme Court ruled that requiring only men to register for a potential military draft didn't violate the Constitution.
The American Civil Liberties Union (ACLU) recently asked the high court to reconsider this decision.
Nobody has been drafted since an all-volunteer military was established during the Nixon administration.
But requiring young men to register remains on the books in case Congress ever revives the draft.
The ACLU notes that in 1981 women weren't allowed to serve in combat, but now they can. So while excluding women from required registration in 1981 made sense, continuing that policy now arguably violates the equal protection of the law implicit in the Fifth Amendment's due process clause.
It is paradoxical that an organization devoted to individual liberty seeks to force the government to register women for possible involuntary induction into military service.
And although its constitutional argument sounds reasonable, the ACLU is ignoring a more fundamental problem with military conscription: its incompatibility with the rule of law.
Since a genuine law, a rule of action threatening sanctions against violators, must apply to everyone, requiring only men to register is clearly not a law.
It's a pseudolaw.
But requiring women to register would not convert the rule into a genuine law. The system administering this rule would still be the ''Selective Service," a very descriptive name.
The legislation would only apply to men and women of a certain age.
And, as in the past, if a draft were restored, not all registrants would be drafted.
The government would still select individuals and treat them differently from other registrants who have acted exactly the same way. (Just imagine a ''selective income tax'' where only people unlucky enough to have their names pulled out of a hat must pay a heavy tax!)
A ''selective'' draft system is therefore incompatible with the rule of law and with the equal protection of the law guaranteed by the Fifth and Fourteenth amendments. It also would seem to violate the Thirteenth Amendment, which prohibits both slavery and ''involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted …''
The U.S. Supreme Court ruled in 1918 that the draft was not involuntary servitude but stated no reasoning.
Since the court uses bad reasoning to support a decision when it cannot find good reasoning, apparently it couldn’t even find any bad reasoning. Its inability is not astounding, since if a draft doesn't produce involuntary servitude, it is hard to imagine what does.
The coupling of slavery with involuntary servitude in the Thirteenth Amendment is highly appropriate. Military conscription in effect makes the draftees into slaves of the government. The first American draft was during the Civil War, and it is ironic that the temporary slavery created by military conscription was used to destroy permanent slavery.
The all-volunteer military has required increased compensation for military personnel in order to attract enough qualified volunteers.
This meant spending less on other programs, raising taxes, or borrowing more money so as to increase the national debt, all unpleasant results.
But the all-volunteer military was and is fully compatible with the rule of law since nobody is singled out and threatened with fines or imprisonment for failing to serve.
As the ACLU lawsuit notes, women, like men, are now free to volunteer and to serve in any military capacity.
But since conscription cannot be reconciled with basic American values and with fundamental constitutional principles, we should not perpetuate its possibility by forcing women as well as men to register.
Instead, we should even up the situation by getting rid of the requirement that men register.
Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published in 1981 and his most recent book is "Beyond Capitalism: A Classless Society With (Mostly) Free Markets." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. Read Prof. Paul F. deLespinasse's Reports — More Here.
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