By Matthew Wadler:
The Army Times has reported that as of January, the Department of Defense will open up to women all those jobs previously restricted to only their male counterparts. Personally, I do not have particular issue with this, as I discussed in my previous article. However, this decision does call some things into question, primarily the draft and actual equality.
First and foremost we must discuss what the draft is, especially since it has not been implemented in the United States for forty-three years. Conscription is defined by Merriam-Webster as, “compulsory enrollment of persons especially for military service,” and it has existed in some form or other since the Babylonian Empire. In our country, it was first utilized during the Civil War, although it was proposed during the Revolutionary War. During the Civil War both the Northern and Southern States implemented a draft although not without issue as the North allowed the wealthy to purchase their reprieve. This was not taken well by the poor and there were riots brought on by this unfairness. At the conclusion of the war the US suspended conscription and it was not utilized again until we entered into the Great War (World War I).
In 1940 the congress passed the Burke-Wadsworth Act which created the Selective Service. This was also the nation’s first peace time draft. Since its inception the selective service has been utilized during World War II and the Korean and Vietnam Wars.
Interestingly enough, the requirement to register for the draft was suspended from 1975 until 1980. It was the invasion of Afghanistan by the Soviet Union that prompted the government to force the citizenry to register in fear that the conflict could lead to a global encounter. Since 1973 when the draft last ended the military has been made up of men and women who volunteer for service either through enlistment or appointment.
While the draft has been implemented off and on throughout our history it has not been without difficulty. One of the greatest calls for the dismantlement of the system came before its inception by Congressman Daniel Webster. In 1814 he stated, “The administration asserts the right to fill the ranks of the regular army by compulsion…Is this, sir, consistent with the character of a free government? Is this civil liberty? Is this the real character of our Constitution? No, sir, indeed it is not…Where is it written in the Constitution, in what article or section is it contained, that you may take children from their parents, and parents from their children, and compel them to fight the battles of any war, in which the folly or the wickedness of government may engage it? Under what concealment has this power lain hidden, which now for the first time comes forth, with a tremendous and baleful aspect, to trample down and destroy the dearest rights of personal liberty?” The question he asks is exceptionally valid. Forced service strips us of the very freedoms that our constitution states are God given. If that is the case, then what power could a government of the people and by the people enact which supersedes our personal freedoms? I believe at the very least this is a philosophical question worthy of debate. Especially in the light that, except for a period during the foundation of our country and the Civil War, we have never since fought a war on our own soil. This is not to say that I do not believe in the justness of the wars our country has fought in. As a lover of history I look at the good that our military has brought to countries around the world and the freedom that we have given to those unable to wrestle it away from tyranny for themselves and cannot help but be humbled to have been a small part of such work.
The question comes down to one of authority and purpose. If one looks at the constitution they are forced to agree with Congressman Webster. There is no power given the government to suspend the liberties of a free people to force them into service. While congress created the Selective Service through the power of law, even their laws are bound to the restraints and rights enumerated in the constitution.
Further I would state that a free people can remain so only so long as they are willing to fight for the freedoms they enjoy. As Benjamin Franklin powerfully avowed, “The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants.” It is only through this sacrifice that we realize and hold precious the gift of our freedom. The term willing is key to this belief. When a people feel that there is nothing more precious than their own life, when they believe that nothing is worth dying for, then those people are no longer worthy of their freedom. Our right of freedom is secured solely by our responsibility to defend it. That responsibility can only be laid upon the shoulders of those who are willing to take and hold a sacred oath to freely defend the Constitution.
With this being stated, it is clear that I feel the selective service and draft should and must be abandoned. It is an absolute violation of the freedoms laid out in the Bill of Rights and as such unconstitutional. It also stands against our responsibility to earn those same freedoms through our commitment to their value and meaning.
So what does any of this have to do with women serving in combat arms in the military? The answer again can be found in the Constitution, namely the 14th Amendment. The amendment was passed by Congress on June 13, 1866 and ratified two years later in 1868. Section 1 of the amendment states, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Under this amendment all citizens are granted equal protection which means that legislation through isms are unconstitutional (i.e.: sexism, racism, etc.).
Now that women have broken through the final wall of service for the military there is clearly no reasonable argument against the draft applying equally to the entirety of our citizenry. In fact, it would be unconstitutional to do so. Beyond just the constitution, there are other reasons to change the laws. Women have fought for generations to be considered by society equal to men and enjoy the same rights and privileges. As I stated above though, with those rights come the responsibilities. In 1980 Senator Mark Hatfield stated this very eloquently. “The paternalistic attitude inherent in exclusion of women from past draft registration requirements not only relieved women of the burden of military service, it also deprived them of one of the hallmarks of citizenship. Until women and men share both the rights and the obligations of citizenship, they will not be equal.” In order for women to truly be equal, they too must equally share in the burden that comes with protecting this nation.
So we are essentially left with a twofold choice. Either we amend the selective service to mandate that women now register for the draft or we abandon the system in its entirety. Whether you agree or not, women will soon be serving in combat arms roles in battle. It is naïve to believe that this will not occur or that we will roll back these reforms. Although I disagree with the manner in which the implementation is taking place, I celebrate the fact that women will now be able to test themselves alongside their male counterparts. I look forward to reading the historical accounts of our next generation of warriors, be they male or female. Before that happens though, we must address this issue that confronts us. We either are or are not a constitutional country bound by freedom and equality for all.
Matthew Wadler is an OpsLens Contributor and U.S. Army veteran. Wadler served admirably for twenty years before retiring. His service included time as a paratrooper and two deployments to Afghanistan.