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F-ck the Draft By: Henry Mark Holzer
FrontPageMagazine.com | Wednesday, November 22, 2006


Here is where I part company with some of my conservative and patriotic friends.

Among the memorabilia that adorns my office is a replica of a Civil War recruiting poster, reflecting one view of a citizen’s military duty to his country: “Volunteers Wanted,” it says. Another item, from the Sixties, is a small green election campaign-type button expressing a very different sentiment: “F*** The Draft,” it spells out.

Each was a gift from a grateful client whom I had saved from Vietnam War conscription during my extensive selective service law practice in the Sixties.

For the record, I enlisted in the Army Reserve in 1953, requested activation in 1954, and spent about sixteen months in Korea. As to Vietnam, I did not oppose the intention of the war – containing or defeating Communism – but rather the political unmilitary manner in which it was conducted, and the government's use of conscripted manpower. One more point, for the record: It is unfair and wrong to paint all proponents of conscription with the same brush. The spectrum runs from many of my friends (conservatives, and others) who are motivated by patriotism, to people who have not seriously considered the many valid arguments against conscription, to those who do understand those arguments quite well but have agendas of their own.

Among the latter is Representative Charles Rangel, D-NY. He has just promised to introduce a conscription bill when the democrats take control of the House and he becomes Chairman of the Ways and Means Committee in January 2007. Rangel floated the same idea just before the election of 2004, but with Republicans in control it was shot down, 402-2. This time, a conscription bill may well get a hearing.

Charles Rangel, despite his bluster and often incoherence, is not a stupid man. He has certainly been around the block politically. He knows that economically, it makes no fiscal sense to train a draftee (who, next time, could be a woman) for at least six months (even in basic infantry skills), and have only eighteen months, at best, for that training to be used.

He knows that politically, as we learned in Vietnam and as we are seeing in Iraq, if the citizenry has no will to fight a war, the draft is divisive – and worse. (Indeed, it is the scarcity of troops, among other considerations, that is putting pressure on the administration to extricate us from Iraq – which would not be a problem were there a draft and its virtually inexhaustible manpower pool that put something like 500,000 troops in Vietnam. In this respect, no draft acts as a brake on military adventures.)

Rangel knows that for certain religious observers, the draft gives many of the observant the cruel choice of either violating their beliefs by serving in the military, or becoming criminals or expatriates by refusing to serve.

He knows that socially, the draft drives yet another wedge between economic and cultural groups, because many of the knowledgeable upper- and middle-classes find a way to avoid being conscripted, while many of the uninformed lower classes are drafted.

He knows that militarily, career non-coms and officers don’t favor leading draftees, because of their often unwillingness to serve and the lack of unit cohesiveness from constant rotations.

There is, however, a more fundamental and principled objection to the draft – one revealed in the only Supreme Court case ever to rule on conscription's constitutionality.

The Selective Draft Law Cases were decided by the Supreme Court of the United States in 1918, the year World War I ended. These cases were the only time, ever, that a direct challenge to conscription's constitutionality reached the High Court. (In the Sixties, during my representation of a Massachusetts college student, I challenged the draft on the basis of the Ninth Amendment, lost in the federal district court, and lost in the United States Court of Appeals for the First Circuit. The Supreme Court of the United States refused to hear the case.)

The Selective Draft Law Cases defendants launched a broad-based constitutional attack on the draft law:

  • Congress had no power to force men to fight, the defendants argued.

No, said the Court, the Constitution gives Congress the “war power” – even though that power textually is only to “raise and support,” not conscript, armies.

  • The defendants contended that the draft law’s exemption for religious belief violated the Constitution's proscription against the “establishment of religion.”

No, said the Court, we pass without anything but statement…[this] proposition because we think its unsoundness is too apparent to require us to do more” – which was another way of saying that the Court had no answer.

  • The defendants invoked the Thirteenth Amendment's prohibition of slavery.

No, said the Court, because “we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation, as the result of a war declared by the great representative body of the people, can be said to be the imposition of involuntary servitude…we are constrained to the conclusion that the contention to that effect is refuted by its mere statement” – which was another way of saying that the Court simply evaded a legitimate constitutional argument.

The defendants’ legal argument that conscription was akin to slavery found a more philosophical expression in their final contention: Compelled military service, they argued, was repugnant to a free government and in conflict with all the great guarantees of the Constitution as to individual liberty.

In the Supreme Court's rejection of this principled position, we can see, exposed in all its ugliness, the underlying premise not only of the Selective Draft Law Cases and its validation of conscription, but also what is at the root of Mr. Rangel’s forthcoming proposal – a premise that is the antithesis of this Nation’s founding and what it stands for. As to the defendants’ argument that conscription “was repugnant to a free government and in conflict with all the great guarantees of the Constitution as to individual liberty,” the Supreme Court of the United States had this to say:

This proposition is so devoid of foundation that it leaves not even a shadow of ground upon which to base the conclusion. Let us see if this is not at once demonstrable. 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…To do more than state the proposition is absolutely unnecessary….

To support its conclusion that when in need the United States government has not only the power, but the right, to initiate force against its unwilling citizens – even to the point of getting them killed anywhere from the trenches of France to the jungles of Vietnam –  as its only authority the Court cited, but did not quote from, a book entitled The Law of Nations, written by an Eighteenth Century scholar-diplomat named Emmerich de Vattel.

The Supreme Court had good reason not to quote Vattel. The following excerpt from The Law of Nations exposes Vattel’s, and the Court's, view of the relationship between government and the individual:

Every citizen is bound to serve and defend the State as far as he is able. Society cannot otherwise be preserved; and this union for the common defense is one of the first objects of all political associations. Whoever is able to bear arms is bound to serve and defend the state as soon as he is ordered to do so by the one who has the power to make war...Since every citizen or subject is obliged to serve the State, the sovereign has the right, when the necessity arises, to conscript whom he pleases. (Emphasis added.)

Since “society” is only a number of individuals in a specific geographical area, what Vattel – and the Supreme Court – really meant when they opined that “conscription is necessary to preserve society,” is that some citizens can be preserved only by forcing other citizens to preserve them. What Vattell and the Court were advocating was that some people are to be sacrificed to the needs of others.

Although the eighteenth century Vattel and the twentieth century Supreme Court refrained from using the one word that nakedly defined what they were sanctioning, Rangel has no such inhibition: That word is sacrifice. According to the Congressman in 2002, “[I]f our great nation becomes involved in an all-out war, the sacrifice should be equally shared.” (Emphasis added.) According to Rangel today, as quoted by CBS News, “Having a draft would not necessarily mean everyone called to duty would have to serve in uniform. Instead, “young people [would] commit themselves [be ordered, he really means] to a couple of years in service to this great republic, whether it's our seaports, our airports, in schools, in hospitals,’ with a promise of educational benefits at the end of service.”

So it comes down to this: Conscription – whenever it occurs – is the government’s sacrifice of the few to the many.

As such, conscription is perhaps the quintessential example of what political philosopher/ novelist Ayn Rand called the altruist-collectivist ethics. In Sweet Land of Liberty: The Supreme Court and Individual Rights, I wrote that Rand had identified and articulated what no one before her had expressed. That “America's inner contradiction was the altruist-collectivist ethics.” I continued: “Altruism is popularly taken to mean nothing more than simply being nice to people…The real meaning of altruism ethically, however, is far different. It is [in Rand's words] ‘the doctrine that the general welfare of society is the proper goal of an individual’s action,’ not his or her own happiness. Rand stripped the concept down even further to its naked essence, defining altruism as ‘the ethical theory which regards man as a sacrificial animal, which holds that man has no right to exist for his own sake, that service to others is the only justification of his existence, and that self-sacrifice is his highest moral duty.’ Closely related to the concept of altruism is that of collectivism…[which, according to Rand] ‘holds that the individual has no rights, that his life and work belong to the group…and that the group may sacrifice him at its own whim to its own interest.’”

If any exercise of government power ever exemplified the altruist-collectivist ethics at its most extreme, it is conscription. The draft legislation enacted in 1917 and sanctified by our Supreme Court a year later – the draft legislation Rangel proposed in the past, and will propose again in a few months – is institutionalized sacrifice of the few for the many. American citizens, however, unlike the inhabitants of most other countries, do not exist for the State. Our government exists for us, and its proper function is to protect individual rights.

Conscripting the unwilling in the name of sacrifice – be it to serve in the military, to sweat in Zambia with the Peace Corps, or to work in some Harlem slum – denies those rights.

One would hope that conservatives would understand this, but apparently some do not. The same CBS News story that quoted Mr. Rangle’s intentions quoted Republican Senator Lindsay Graham, the much touted reserve military judge. Graham’s best counter to Rangel’s intention to draft young Americans was this typically tepid comment: “I think we can do this with an all-voluntary service, all-voluntary Army, Air Force, Marine Corps and Navy. And if we can’t, then we'll look for some other option.”

He could – and should – have said that conscription is morally wrong.

Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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