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F**K THE DRAFT (2008)


Among the memorabilia that adorn 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 view: "F*** The Draft," it proclaims. 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 did not oppose the intention of the war – containing or defeating Communism – but rather the manner in which it was conducted and the government's use of conscripted manpower. (I am proud to say that of the hundreds of young men I counseled and represented, not a single one was drafted).

I am also proud to say that, together with others (including Martin Anderson, now of the Hoover Institution, and Alan Greenspan, formerly of the Fed), my wife and I played a significant role in President Nixon's termination of the draft.

All the more reason why I'm distressed to see the recent emergence of the threat of conscription in a bill authored by Representative Charles Rangel (D - NY).

There is much to oppose about a military draft, and those who favor conscription run the spectrum from patriots to the honestly mistaken to collectivists-statists. 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. Politically, as we learned in Vietnam, if the citizenry has no will to fight a war, the draft is divisive – and worse. Religiously, it gives many resisters the cruel choice of either violating their beliefs by serving, or becoming criminals or expatriates. Socially, the draft drives yet another wedge between economic and cultural groups because many of the knowledgeable upper- and middle-classes are offered or find a way to avoid being conscripted, while many of the uninformed lower classes are drafted. Militarily, career non-coms and officers don't want draftees, and with them the lack of unit cohesiveness from constant rotations. All this was true in my day, and it is even more so today.

There is, however, a more fundamental objection to the draft – one revealed in the only Supreme Court case ever to rule on conscription's constitutionality. It is an objection that applies as well to Rangel's bill and is common to both the old Supreme Court case and to Rangel's current legislative effort.

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, but the Supreme Court 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, they 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 is 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 is another way of saying that the Court simply evaded a legitimate constitutional argument.

The defendants' argument that conscription was akin to slavery found a more philosophical expression in their final contention: Compelled military service 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 see exposed, in all its ugliness, the underlying premise not only of the Selective Draft Law Cases and its validation of conscription, but also of Charlie Rangel's 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 belief 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 authority the Court cited, but did not quote from, The Law of Nations, written by an Eighteenth Century scholar-diplomat named Emmerich de Vattel.

The Court had good reason not to quote Vattel. The following excerpt from The Law of Nations reveals 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 anus 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 ares, what Vattel – and our 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 precisely defined what they were sanctioning, Rangel has no such inhibition: That word is "sacrifice." According to the Congressman, "[I]f our great nation becomes involved in an all-out war, the sacrifice should be equally shared."

So it comes down to this: Conscription, whether in 1918 or in 2003, represents the so-called right of the federal government to sacrifice the few to the needs or wishes of the many. (E.g.. Your neighbor's son to the geopolitical schemes of Robert McNamara and Lyndon Johnson). 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 Miss Rand had identified and articulated what no one before her had expressed – "America's inner contradiction was the altruist-collectivist ethics" – and 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 in its most extreme form, it is conscription. The draft legislation enacted in 1917 and sanctified by our Supreme Court a year later, and draft legislation as currently proposed by Charles Rangcl, 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. Its proper function is to protect individual rights.

Conscripting the unwilling in the name of sacrifice destroys those rights.