Putting Fairness in the Military Draft
by Donald N. Zillman, Edward Godfrey Professor of Law
at the University of Maine School of Law in Portland. He is
a veteran of the U.S. Army, a former visiting professor of
law at the U.S. Military Academy at West Point and a former
member of the U.S. Army Judge Advocate General Corps.
May 10, 2004
For thirty years, America's experiment with the all-volunteer
Army has provided everything a policy maker could wish. The
quality of the force is high. Sufficient volunteers have stepped
forward to fill the ranks. Difficult political choices with
conscripted service have been avoided.
Unpleasant, but realistic, predictions of the near future
suggest, however, that the draft may return. Our military
commitments appear to be expanding. The ongoing struggle in
Iraq has made military service less attractive, particularly
for reserve and National Guard troops who did not enlist to
serve lengthy, and repetitive, overseas duty. Lastly, the
class structure of the volunteer force is raising concerns
in Congress and elsewhere. This raises basic questions of
fairness.
The fairness issue is significant when one considers America's
prior use of the draft. Five experiences with the draft can
be identifiedÑthe Civil War; World War I; World War II; the
first decade or so of the Cold War; and Vietnam. In general,
the draft worked well in the second and third periods. Capable
personnel reached the armed forces during these conflicts.
The sacrifice was seen as shared by all segments of American
society. By contrast, the draft worked poorly during the Civil
War and Vietnam, when the perception of reality of fairness
was called into question.
Some brief history: The Civil War was fought primarily with
volunteers. In the northern armies, the draft came two years
into the war and produced only five percent of Union forces.
The draft also incited one of AmericaÕs largest domestic riots
in New York City in 1863. That riot was stimulated by outrage
over draft unfairness, most notably, the ability of a wealthy
draftee to buy a substitute to serve in his place for $300.
That experience was well known to the authors of the draft
law of World War I. Both the language of the act, and the
temper of the times, articulated the obligation of able-bodied
men to serve, if called, in the armed forces. The training
camps were expected to mix blue bloods and recent immigrants.
The reality didn't perfectly match the symbol, but it came
close. The most public example of military service by the
nationÕs elite was provided by former President Teddy Roosevelt,
whose four sons all served. Two were severely wounded and
one died in air combat over France.
World War II, with its heavy demands on America's youth,
continued the model of shared sacrifice across classes. The
most visible symbol of war bringing grief to the rich as well
as the poor was Joseph Kennedy, hardly a war advocate. His
eldest son, Joe, died in the war and his second son, Jack,
barely survived death on PT-109. The beginning of the 40-years
Cold War with the Soviet Union in the late 1940s and 1950s
required a continuation of the draft and a relatively broad
pattern of military service for young men reaching maturity
in those years.
By the time Vietnam required a major commitment of American
troops in the mid-1960s, demographics and attitudes had changed.
The coming of age of the World War II baby boomers provided
a large pool of prospective draftees, not all of whom had
to be chosen for service. The growing unpopularity of the
war also undercut many AmericansÕ perceptions that military
service was an obligation of citizenship. The complex statutes
and regulations that governed the draft provided exemptions
from drafted service for a wide, and imprecise, variety of
conditions of health, educational status, family support obligations,
occupation, or service in the reserve or National Guards.
In overwhelming numbers, the children of America's elite
avoided service by one means or another. Colin Powell has
reflected: "Of the many tragedies of Vietnam, this raw class
discrimination strikes me as the most damaging to the ideal
that all Americans are created equal and owe equal allegiance
to their country." The class-stratified military also said
much about how serious AmericaÕs commitment was to the war
and how well it would be fought. A former prosecutor at the
My Lai war crimes trials captured the point brilliantly when
he observed that if the unit commander at My Lai had been
Lt. William Clinton, instead of unqualified Lt. William Calley,
there would have been no My Lai.
Fairness issues, therefore, must be weighed carefully in
any decision to return to the draft. Several crucial decisions
face the Congress if it decides to reactivate a system of
Selective Service to help staff the 21st century American
armed forces.
First, age. The initial World War I draft made eligible those
from 21 to 30 years of age. Half a dozen wars later, both
military efficiency and fairness strongly suggest concentration
on the youthful cadre. If the draft selects only those just
out of high school, prior to entry to college or a long-term
career, the military gets the best potential soldiers. The
selection at age 18 or 19 also removes the need for difficult,
and often class-biased, exemptions of college students or
persons in essential occupations.
Next, gender. America has never drafted women. The U.S. Supreme
Court faced the fairness of that "male-only" system after
actual inductions under the draft ended in 1973. Only an obligation
to register for the draft remained. In the 1981 case of Rostker
v. Goldberg, the court considered the claim of a male registrant
that the exclusion of women from registration violated his
constitutional rights. The Supreme Court rejected his claim.
It reasoned that most draftees were needed for combat service.
Acts of Congress excluded women from combat assignments. Therefore,
it was reasonable to exclude women from the obligation of
registration.
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