The Volokh Conspiracy

The Pentagon’s recent decision to open up combat roles to women has led legal scholar Gerard Magliocca wonder whether our current system of male-only draft registration is still constitutional. Conservative commentator Dave Carter predicts that the courts will rule that it is not, and women will be made subject to the draft.

In the 1981 case of Rostker v. Goldberg, the Supreme Court upheld the constitutionality of male-only draft registration in part because women were barred from combat roles, and female draftees are therefore less valuable to the military than male ones would be. In the thirty years since then, more and more combat roles have been opened up to women, and the Pentagon’s most recent decision is likely to eliminate most if not all remaining gender-based restrictions. So that rationale for a male-only draft is undercut.

But then-Justice William Rehnquist’s majority opinion also relied heavily the courts’ “lack of competence” on national security issues and the consequent need for “healthy deference to legislative and executive judgments in the area of military affairs.” That deference might justify upholding male-only draft registration even if all or most combat positions are open to women. The federal government could argue that, in the expert judgment of the military, few women have the strength and endurance needed for many combat positions, even if they are not categorically barred from them. Thus, female draftees might still be less useful to the military than male ones. A court applying “healthy deference” might choose not to contest that assertion.

Lower courts applying Rostker could therefore still conclude that male-only draft registration is constitutional, though Rostker is ambiguous enough on the amount of deference due that the issue is not a slam dunk. If the issue gets to the Supreme Court however, I’m far from certain that Rostker wouldn’t be overruled or severely limited. As compared with 1981, the idea of women serving in combat is far more widely accepted by both elite and public opinion. And sex discrimination in draft registration is likely to seem like an outdated relic of the days when women were barred from numerous positions in the military. If the Pentagon sticks to its new policy on women in combat, I think it’s likely that some male plaintiff will bring a new challenge to the selective service registration system, and that plaintiff will have a good chance of succeeding. Like most other constitutional law scholars, I think that Rostker was a dubious decision, and would not shed many tears if it were overruled. For reasons outlined by Steven Calabresi and Julia Rickert, there is also a good originalist case for courts’ taking a strong line against sex discriminatory laws.

Even if Rostker is overruled, it does not follow that women will ever actually be drafted or that such a draft would be constitutional. Elsewhere, I have argued that a draft of any kind violates the Thirteenth Amendment’s ban on involuntary servitude, and that the Supreme Court’s 1918 decision upholding the draft against a Thirteenth Amendment challenge is poorly reasoned and badly misguided, as was a 1916 precedent upholding a Florida law requiring able-bodied male citizens to perform forced labor on public roads. For reasons I outlined here, I am not much moved by arguments that, in some extreme cases, a draft might be the only way to ensure national survival.

I doubt that the Supreme Court will overrule these decisions in the near future. But even if it doesn’t, we are unlikely to see the reinstatement of the draft. Conscription is gradually declining around the world because it is both unjust and inefficient, and tends to degrade the quality of armed forces that rely on it. The public, some 80% of recent veterans, and most political elites oppose the return of the draft in the US. Ultimately, the best way to ensure that women will never be drafted is to not have a draft at all. Men and women should be allowed to serve in the military on an equal basis, but neither should be forced to do so.

If the Pentagon’s recent decision to open up combat positions to women leads conservative Dave Carter to worry that women will be drafted, liberal Democratic Rep. Charles Rangel embraces the idea and calls for the establishment of a draft that applies to both men and women:

Since January 2003, at the height of the debate on the possible unilateral strike against Iraq, I have advocated for a reinstatement of the military draft to ensure a more equitable representation of people making sacrifices in wars in which the United States is engaged....

Currently the burden of defending our nation is carried by less than 1% of the American population. The 2.2 million members of the armed forces in active duty, the National Guard and the Reserve have become a virtual military class that makes the ultimate sacrifice of laying down life and limb for our country....

Since we replaced the compulsory military draft with an all-volunteer force in 1973, our nation has been making decisions about wars without worry over who fights them. I sincerely believe that reinstating the draft would compel the American public to have a stake in the wars we fight as a nation. That is why I wrote the Universal National Service Act, known as the “draft” bill, which requires all men and women between ages 18 and 25 to give two years of service in any capacity that promotes our national defense.

Rangel’s equality argument for the draft is dubious. If we reinstate the draft, it would still be true that only a small percentage of Americans would ever actually serve in combat during wartime and take the risk of “making the ultimate sacrifice.” Even during World War II, only about 16 million Americans served in the armed forces out of a population of 132 million in 1940. And only a minority of the 16 million served in combat positions. Under Rangel’s proposal, the burden of combat duty would still fall on a very small fraction of the population: those unlucky enough to be between the ages of 18 and 25 whenever a war happens to occur. The big difference is that the small group that bears the burden will be selected by force rather than choice. Coerced inequality is no improvement over inequality created by voluntary choice. At least in the latter case, the government has a strong incentive to adequately compensate servicemembers for the risks they take, if only because they would face manpower shortages otherwise. Unequal risk of death is partially offset by extra pay and benefits and by the attractions of military life to those who find it appealing. Draftees get far less in the way of compensation for the inequality imposed on them.

Rangel’s view that the public would be more reluctant go to war with a draftee military is also questionable. During the Vietnam War, young men eligible for the draft actually supported the war at higher rates than other demographic groups. Today, veterans support the wars in Iraq and Afghanistan at higher rates than the general public, and post-9/11 veterans who actually served in combat are more supportive than those who didn’t. The evidence is not completely one-sided. Some recent experimental data suggests that a draft might reduce public support for war after all. Overall, however, we don’t yet have enough evidence to show that the impact of the draft on public support for war is an exception to the general rule that there is little causal connection between public opinion on political issues and narrow self-interest.

Even if the establishment of a draft would make the public less willing to go to war, it is not clear that this would be an improvement. One can certainly point to cases where public opinion was too willing to fight. But there are also plenty of examples of the opposite problem, such as the period leading up to World War II, or the period right before 9/11, when both the public and political elites were too slow to act against the threat posed by radical Islamist terrorism.

Finally, Rangel simply ignores all the major downsides of the draft, such as its tendency to reduce the quality of the military, its economic inefficiency, and the incentive it creates for governments to squander lives. Most of all, Rangel doesn’t take seriously the moral costs of the draft. Subjecting millions of people to two years of forced labor is a severe infringement of liberty that can only be justified, if at all, by some truly enormous good that cannot be achieved by less draconian means.

As I have explained elsewhere, I am not opposed to the draft under all conceivable conditions. If, for example, having a draft were the only way to avoid getting conquered by an enemy that would impose a totalitarian state on us, I would support it. The draft is a great evil. Still, there can potentially be situations where it is the only way to stave off an even greater one. But the arguments advanced by Rangel and other modern draft supporters don’t even come close to meeting the burden of proof needed to justify such massive coercion.

UPDATE: A point I made in an earlier post on conscription is relevant here as well:

Many people resist the comparison between conscription and other forms of forced labor because they see military service as providing a great good that is essential to our society. But military service is far from unique in that regard. Historically, slaves and forced laborers often performed work that was vital to the social order. The entire economy of the antebellum South depended on crops produced by slaves. So too with ancient Rome, Russia in the era of serfdom, and so on. The key point to realize is that this work, however noble and necessary, can be performed by free laborers. Thus, the use of forced labor to carry it out is still unjust. The same goes for military service. Both the United States and other liberal democracies can field more than adequate military forces without conscription. Indeed, they can create better armies without it than with it.

The Pentagon’s recent decision to abolish most restrictions on women serving in combat leads conservative commentator Dave Carter to worry that women will now be subject to the military draft:

It was 22 or 23 years ago, I think, that I wrote in the Air Force Times a cautionary article on the combat exclusion that prohibited women from joining front line combat units. My concern then, as now, was that lifting the combat exclusion would removed the only remaining barrier to our daughters, wives, moms, and sisters being eligible for a military draft....

In 1982, the Supreme Court ruled in Rostker v. Goldberg, that the requirement for males to sign up for Selective Service was constitutional precisely because women were excluded from serving in front line combat units. “The court ruled that the Selective Service process is designed to assemble combat-ready people, and right now women are excluded from combat arms,” said Professor Anne Coughlin, of the University of Virginia School of Law in Charlottesville. “Therefore,” she said, “they can’t participate in the very thing that the draft is for.” But that was then. Now, retired Colonel Peter Mansoor, a former US Army brigade commander and veteran of two tours of duty in Iraq, currently a professor of military history at Ohio State, says, “If women are acceptable to serve in combat, they are acceptable to serve whether they volunteer or not. You can’t have the frosting on the cake and not the cake underneath....”

It speaks volumes that the party of young men who once gleefully burned their draft cards has degenerated into the party of old men who declare their daughters and granddaughters eligible for the draft. But to do so in Orwellian tones of, “…moving forward with a plan to eliminate all gender-based barriers to service,” adds injury to insult....

Personally, one of the reasons I spent 20 years in uniform and volunteered to go to very unpleasant places was so that my daughter, my sisters, my mother and grandmothers might never have to taste the bitter cup of life under such inhumane and inhuman conditions. It seems now that my service in that regard might have been squandered.

Carter’s military service is admirable. But his logic in this post is far from compelling. The obvious way to avoid drafting women is to not have a draft at all. For reasons I summarized here, conscription reduces the quality of the military, is economically inefficient, and makes it more likely that military commanders will squander lives in wartime. In addition, it is a form of forced labor that severely infringes on individual liberty. Carter is absolutely right that we should not force women to “taste the bitter cup of life under such inhumane and inhuman conditions.” We shouldn’t force men either.

Furthermore, opening up combat positions to women increases the potential pool of volunteers for the military, and thereby actually reduces the likelihood that we will ever need a draft. Perhaps only a very small percentage of women will have both the ability and the desire to serve in combat. But in a nation of 300 million people, that very small percentage might still amount to a significant number of troops in absolute terms.

I can imagine hypothetical cases where having a draft may be justified because it is the only way to avoid conquest by a totalitarian enemy that will impose even greater violations of liberty than the draft itself. In the real world, however, abjuring the draft both promotes freedom and improves the quality of the military.

In the highly unlikely event that such an extreme case were to arise, I don’t see the justice of limiting the draft to men. It is true that female draftees might face terrible risks. But that’s also true of men. Male POWs have been raped, tortured, and otherwise abused by our enemies, just as women have. Think of John McCain’s experiences in the Hanoi Hilton.

It may well be that a much smaller percentage of women than men have the physical strength and endurance needed for some combat jobs. But when a draft is justified at all, that statistical variation is no reason to exclude those women who do meet the required physical standards. If members of a particular racial or ethnic group are, on average, smaller and weaker than members of other groups, that is no justification for categorically excluding all members of that group from draft eligibility. The same point applies to women.

UPDATE: In the original version of this post, I accidentally failed to include a link to the post by Dave Carter to which I am responding. I have now corrected that mistake.

UPDATE #2: A commenter asks whether I support abolition of today’s male-only system of selective service registration. Indeed, I do. Since I oppose the draft, I also oppose mandatory draft registration. In the highly unlikely event that a draft will ever be justified in the foreseeable future, I believe registration should apply to men and women equally.

Economist Joshua Hall has an interesting article describing an oft-ignored, but very important expansion of freedom over the last several decades: the declining use of military conscription. He notes that, as of 1970, some 80% of the world’s governments used conscription, including the US and many of the democratic nations of Western Europe. By 2009, that had declined to 45%, and many of those nation that still have conscription have reduced the length of conscript’s terms and made it easier to escape the draft. Even France, the nation that first pioneered conscription in the 1790s, abolished it in 2001.

Hall also gives a good summary of the economic case against conscription. Most knowledgeable people are aware of the standard points that conscription reduces the quality of the military because professionals are, on average, better soldiers than short-term conscripts, and that conscription creates major social costs by forcing people to serve who would be more productive in other occupations. Hall notes two other ways in which conscription is inefficient that are less well-known – that it creates deadweight losses by diverting people from their preferred occupations to those which have draft exemptions, and that it encourages governments to underinvest in military equipment and instead sacrifice more lives in battle rather than capital:

Like all taxes, conscription has distortionary effects that create deadweight losses. During the Vietnam War, for example, draft dodging and college enrollment motivated by draft avoidance created deadweight losses. More recently, World Bank economists Michael Loshkin and Ruslin Yemtsov estimated that 90 percent of eligible men are able to avoid Russia’s draft through a variety of means.

In his 1967 article making the case for a volunteer army, Milton Friedman argued that a volunteer army would lead the military to use more and better equipment. One consequence of an artificially low cost of military labor is that it discourages the military from substituting away from labor and towards capital. This point was perhaps best made by German economist Johann Heinrich von Thunen, in his nineteenth-century book, Isolated State:

The reluctance to view a man as capital is especially ruinous of mankind in wartime; here capital is protected, but not man, and in time of war we have no hesitation in sacrificing one hundred men in the bloom of their years to save one cannon.

In a hundred men at least twenty times as much capital is lost as is lost in one cannon. But the production of the cannon is the cause of an expenditure of the state treasury, while human beings are again available for nothing by means of a simple conscription order...

On the latter point, Hall cites a chilling quote by Napoleon, the founder of the first modern conscription system: “When the statement was made to Napoleon, the founder of the conscription system, that a planned operation would cost too many men, he replied: ‘That is nothing. The women produce more of them than I can use.’” Napoleon regarded conscripts as a “free good” and therefore didn’t much care how many of them got killed. Democratic governments tend to be more casualty-sensitive than he was. But even they tend to waste conscripts’ lives at a higher rate than those of professionals who have the right to quit. The introduction of the all volunteer force has clearly led the US military to be more careful about losses than it was in World War II, Korea, and Vietnam.

In addition to its inefficiency conscription is also objectionable because it is a form of forced labor that severely undermines personal freedom. There are few more severe violations of human rights than forcing a person to do work he doesn’t want at below-market rates for years at a time. In addition, conscripts’ lives are often tightly regulated even when they are not actively carrying out their duties. And, of course, they are sometimes forced to risk their lives.

Many people resist the comparison between conscription and other forms of forced labor because they see military service as providing a great good that is essential to our society. But military service is far from unique in that regard. Historically, slaves and forced laborers often performed work that was vital to the social order. The entire economy of the antebellum South depended on crops produced by slaves. So too with ancient Rome, Russia in the era of serfdom, and so on. The key point to realize is that this work, however noble and necessary, can be performed by free laborers. Thus, the use of forced labor to carry it out is still unjust. The same goes for military service. Both the United States and other liberal democracies can field more than adequate military forces without conscription. Indeed, they can create better armies without it than with it.

One can imagine hypothetical situations where conscription might be justified even on libertarian grounds. For example, it might be the only way to avoid conquest by a totalitarian state that would impose more brutal and more universal forms of forced labor. In the real world, however, no such scenario is even remotely plausible for the foreseeable future. And it is likely to become even less plausible as military technology becomes more complex and soldiers need more and more specialized skills that are best provided by professionals rather than temporary conscripts.