In the United States, upon turning eighteen, every male citizen and immigrant noncitizen must register for the draft, called the Selective Service System. One can technically refrain from doing so, but the ramifications are enormous: up to five years in jail or a $50,000 fine as well as exclusion from most federal services, including FAFSA for us college students. Many see this as their patriotic duty to the United States. Registering with the Selective Service System represents one’s willingness to fight and die for your country, and most importantly, its Constitutional values. Despite the patriotic overtones with which this subject is discussed, the conscription of men in the United States represents the very opposite of liberty and is a violation of our rights.
Academic studies, even from libertarian and right-leaning think-tanks like the Cato Institute, show that a voluntary army performs far better than a conscripted army. George Washington himself, in a frustrated letter to his nephew, spoke of “ the evil consequences of short enlistments, the expenses of militia, and the little dependence that was placed in them.” The negative economic impact of compulsory service is also often touted by economists as a strike against the draft and mandatory military service. Yet, of all the things lawmakers ignore empirical advice on, the military and defense may be greatest among them. The alleged respect for veterans and America’s deep pride for its armed forces make the issue a profoundly emotional one. So empirical evidence aside, it is useful to explore the history of the draft and its emotional and philosophical impacts.
During the Civil War in the United States, each man of fighting age was required to either report for duty, or produce someone who could go in his stead. This reduced military service to almost a monetary transaction, with no emotional element. This changed in 1917 as the United States prepared to enter World War I and Congress passed the Selective Service Act of 1917. That it was established during war time made it similar to the Civil War draft, but the wording of the document differed greatly. Specifically, it said: “No person liable to military service shall hereafter be permitted or allowed to furnish a substitute for such service; nor shall any substitute be received, enlisted, or enrolled in the military service of the United States; and no such person shall be permitted to escape such service or to be discharged therefrom prior to the expiration of his term of service by the payment of money or any other valuable thing whatsoever as consideration his release from military service or liability there to.” With the Selective Service Act of 1917, you could not pay your way out of the draft, nor serve anyone in your place. It became your moral and national duty to provide military service personally. Rejecting the “payment of money or any other valuable thing” rejected the very notion that one could put a price on military service. It became an intangible, invaluable reflection of one’s duty to America.
On the eve of World War II, the draft again was instituted with the Selective Training and Service Act of 1940. It was very similar to the 1917 Act in all ways except that it was instituted before the United States had declared war. This made it the first peacetime conscription that the United States had experienced. At the time, this would have been unapparent, as America was on the brink of stepping into the fray, but it set a precedent for years to come. Now, the draft could not only be enacted during war out of necessity, but during peacetime as well.
The final evolution of conscription law came with the Selective Service Act of 1948, where all males over 18 were required to register with the Selective Service System and all male aged 1926 were eligible to be drafted into military service. In the years since this Act’s passage, executive orders and legislation have been enacted to enforce the compulsory nature of conscription, to classify conscripts into different categories and level of deferment, and to introduce and then repeal exemptions to conscription. This long history has lead us to the the ongoing debate on the House floor, where a bill, H.R. 4523, introduced on February 10th of this year would abolish most forms of the draft in the United States. This has brought up old arguments, with both sides passionate about their undeniable righteousness.
So what are the Constitutional opinions on the matter of conscription? The first legal challenge to the concept of conscription came in 1917, immediately after the passing of the Selective Service Act of 1917. Many cases were filed in fact, leaving them to be collectively called the Selective Draft Law Cases in an unsurprisingly utilitarian move. They represented numerous efforts by libertarians and anarchist Emma Goldman to challenge the Selective Service Act as a violation of the Thirteenth Amendment banning slavery and involuntary servitude. They were unanimously struck down by the Supreme Court, who cited not only Congress’ express Constitutional right to raise an army, but the contemporary laws of many other nations as justification for their ruling.
Libertarians like Rand Paul still cite this idea of involuntary servitude as the main objection to the draft. Conscription is different from the idea of say, eminent domain in that your service specifically rather than anyone else’s service is not necessary for the greater good. With eminent domain, the idea is that your property specifically is blocking the government from achieving its goal. Thus the draft presents no reason to target you and violate your rights specifically while eminent domain, in theory, always does.
They are correct in their sentiments, but are missing the larger point. The United States Constitution was based on Locke’s ideas of a social contract. In their natural state, men have every right including to murder and to steal. A government is formed when a group of people collectively agree to cede some of their rights to protect their life and property so they can function as a society, or when such a society is already formed, one must explicitly consent to this society to join it. The core of Locke’s idea was that government’s only existed to take away rights for the greater good, not to grant them. The draft violates this inherent spirit of the Constitution.
To volunteer to join the military represents a direct endorsement of the Constitution for which you are fighting. The first line of the Army’s Oath of Enlistment is “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States.”hen you join an armed force, you are explicitly defending the Constitution of the United States, not its people. You are defending the social contract that the Constitution represents, and to be forced to protect and uphold this social contract without voluntarily endorsing it is morally wrong. One is being forced to explicitly consent to the social contract and support, a complete violation of Locke’s idea of the social contract. During wartime, the argument can be made that Congress’ right to raise an army supersedes an individual’s rights, but no such argument can be made during peacetime.
If joining the military is a confirmation of the social contract between you and your country, then how can the United States justify forcing noncitizens to sign up for the Selective Service System? They have not formalized any social contract with the United States government, nor does joining the military help them on their path to citizenship. This is unlike the French Foreign Legion, where non-French citizens can volunteer to fight for France and in return will be granted citizenship. The French government respects the social contract that French Foreign Legion soldiers enter into, unlike the United States government which compels it.
Despite the fact that the Selective Service System has been upheld in the court before, the libertarian and Lockean roots of our Constitutional system are antithetical to a mandatory peacetime draft. The recent Congressional legislation in the House of Representatives will undoubtedly be shot down as politicians pander to nationalism and patriotism rather than respect the inherent values of the American Constitution. One can only hope that one day men and women will be able to show their love for America and their endorsement of the social contract in a voluntary manner by serving with the Armed Forces that keep us safe.