by Gar Smith, The Berkeley Daily Planet, June 16, 2021
A world in which women can be drafted? That doesn’t register.
A gender-neutral draft is being saluted (in some quarters) as a victory for women’s rights, an open door that promises a new platform for equal opportunity with men. In this case, an equal opportunity to shoot, bomb, burn and kill other human beings.
Women may soon be faced with a new legal requirement that they must register with the Pentagon when they turn 18. Just like men.
But American women already have the same rights as men to enlist and pursue a career in the Armed Forces. So how is it sexist or unfair that young women are not compelled to register for the Pentagon’s (retired but still revivable) military draft? What is the thinking here? “Equal injustice under law”?
In February 2019, a US federal court judge ruled that a male-only draft was unconstitutional, accepting a plaintiff’s argument that the draft invoked “sex discrimination” in violation of the 14th Amendment’s “equal protection” clause.
This is the same “equal protection” clause that has been used to extend and enforce reproductive rights, election rights, racial equality, election fairness, and educational opportunity.
Citing the 14th Amendment to justify forced conscription seems to run counter to the concept of “protection.” It’s less a case of “equal opportunity” and more a case of “equal jeopardy.”
The male-only draft has been called “one of the last sex-based classifications in federal law.” The draft also has been called a “cannon-fodder credit card.” Whatever you wish to call it, the US Supreme Court has opted not to rule on the reach of the draft, choosing to await action from Congress.
American Civil Liberties Union lawyers have taken the lead in demanding that both women and men should be treated equally when it comes to draft registration.
I agree with the ACLU’s argument that the draft should apply equally to both sexes — but this agreement comes with an important qualification: I believe that neither men nor women should be compelled to register for military duty.
The Selective Service System (SSS) is unconstitutional not because it fails to require women to be trained to fight and kill: it is unconstitutional because it requires any citizen to register to be trained to fight and kill.
Despite the euphemism, the SSS is not a “service” but a “chore” and it is only “selective” on the part of the recruiters, not “elective” on the part of potential inductees.
Constitutionally Protected Slavery
The draft is a form of forced enslavement. As such, it should have no part in a country that claims to be founded on the promise of “life, liberty and the pursuit of happiness.” The Constitution is clear. The 13th Amendment’s Section 1 declares: “Neither slavery nor involuntary servitude . . . shall exist within the United States, or any place subject to their jurisdiction.” Forcing young men to become soldiers against their will (or sentencing them to lengthy jail terms for refusing induction) is clearly an expression of “involuntary servitude.”
But wait! The Constitution is actually not so clear.
The kicker is in the ellipsis, which includes an exemption stipulating that citizens can still be treated as slaves “as punishment for crime whereof the party shall have been duly convicted.”
According to Section 1, it would appear that the only US citizens who can be legally compelled to defend “the home of the brave” through forced conscription are convicts serving time in US prisons.
Ironically, “the land of the free” is home to the largest enslaved population on the planet, with 2.2 million prisoners — one-fourth of the world’s incarcerated inmates. Despite the Constitution’s pro-slavery-clause and the Pentagon’s enduring need for soldiers, US inmates are not being granted early release in exchange for joining the Armed Forces.
Traditionally, jailed Americans have only been conscripted to build county roads and fight wildfires — not to build armies and fight wars. (It played out differently in during World War II when German prisoners were deployed to fight in Strafbattalions or “penal battalions.”)
The US Economy and Corporate Conscription
In today’s Prison-Industrial-Complex, instead of being sent to the “frontlines,” prisoners are recruited to serve “backstage,” providing free labor for Corporate America. The Prison-Industrial Complex is the third-largest employer in the world and the second-largest employer in the US.
Unpaid (or “pennies-per-hour”) prison servitude can include work for mining and farming operations to manufacturing military weapons, serving as call-service operators, and sewing undergarments for Victoria’s Secret. Top US companies employing prison labor include Wal-Mart, Wendy’s, Verizon, Sprint, Starbucks, and McDonald’s. If conscripted inmates refuse these assignments, they can be punished with solitary confinement, loss of credit for “time served,” or suspension of family visits.
In 1916, the Supreme Court ruled (Butler v. Perry) that free citizens could be conscripted for unpaid labor involved in the construction of public roads. In fact, the language of the 13th Amendment was copied from a 1787 Northwest Territories ordinance that outlawed slavery but required “every male inhabitant of sixteen years of age and upwards” to show up for unpaid roadwork “on being duly warned to work on the highways by the supervisor in the township to which such inhabitant may belong.” (And, yes, most of the prisoners who served on “chain gangs” up through the 20th Century, were engaged in unpaid road-work.)
A 1792 revision of the road-repair mandate reduced the target population to males between the ages of 21-50 years, and reduced the period of servitude to “perform two days work on the public roads.”
Conscription Around the World
The 1917 law that established the Selective Service System was strict. Failure to “register” for the draft was punishable by up to five years in prison and a maximum $250,000 fine.
The US is not alone in compelling “free citizens” to serve as soldiers. At the present time, 83 countries — fewer than a third of the world’s nations — have a draft. Most exclude women. The eight countries that do draft women are: Bolivia, Chad, Eritrea, Israel, Mozambique, North Korea, Norway, and Sweden.
Most nations with armed forces (including many NATO and European Union states) do not rely on conscription to compel enlistments. Instead, they provide the promise of well-paying military careers to attract recruits.
Sweden, a “feminist-friendly” nation that abolished the draft in 2010, recently revived compulsory military service by introducing a draft that, for the first time, applies to both men and women. The government argues that “modern conscription is gender neutral and will include both women and men” but, according to Sweden’s defense minister, the real reason for the change was not gender equality but under-enlistments due to “a deteriorating security environment in Europe and around Sweden.”
The ACLU’s equity argument comes with complications. If women and men are to be equally required to register for the military draft (or face imprisonment for refusal to serve), how would this impact our country’s transsexual citizens?
On March 31, the Pentagon reversed a Trump-era ban that banned transsexual citizens from serving in the military. Would new gender-neutral rules also compel transsexual Americans to register for the draft to avoid prison or fines?
According to the National Center for Transgender Equality, Selective Service registration currently excludes “People who were assigned female at birth (including transmen).” On the other hand, the Selective Service requires registration for “People who were assigned male at birth.”
If “draft-equity” were to become the new standard for gender equity, the Supreme Court might someday be called upon to consider whether to require the National Football League to allow women to register for the NFL draft. Before confronting that ethical quandary, it might be worth asking whether or not any women actually wanted to scrimmage with 240-pound linesmen. Just as it makes sense to ask any woman — or man — whether she/he wants to fire bullets, grenades, and missiles at strangers struggling to survive in some far-off, war-torn nation.
In the interest of gender equality, let’s end draft registration for both women and men. Congress is supposed to have the say in decisions of war and peace. In a democracy, people must remain free to determine whether or not they wish to support a war. If enough refuse: no war.
Abolish the Draft
There is a growing campaign to abolish the military draft in the US — and it wouldn’t be the first time. President Gerald R. Ford put an end to draft registration in 1975, but President Jimmy Carter revived the requirement in 1980.
Now, a trio of Oregon Congressmen — Ron Wyden, Peter DeFazio and Earl Blumenauer — are co-sponsoring The Selective Service Repeal Act of 2021 (H.R. 2509 and S. 1139), which would put an end to a system that DeFazio calls “an obsolete, wasteful bureaucracy” that costs American taxpayers $25 million a year. The repeal act has a number of Republican supporters, including Senator Rand Paul and Representatives Thomas Massie of Kentucky and Rodney Davis of Illinois.
Abolishing the draft and returning to an all-volunteer military would put an end to compulsory service — for both men and women. Next step? Abolish war.