Now that Secretary of Defense Ash Carter has decreed all combat positions open to women, some advocate extending mandatory draft registration to women. This proposal sounds plausible, but it is actually a terrible idea.
Current legislation (which I will not dignify by calling it law) requires all men ages 18 to 25 to register. Nobody has been drafted since the Nixon administration, but the requirement is preserved just in case.
Since a genuine law, a rule of action threatening sanctions against violators, must apply to everyone, requiring only men to register is clearly not a law. It is a pseudolaw. But requiring women to register would not convert the rule into a genuine law. The system administering this rule would still be the “Selective Service,” a very descriptive name.
As in the past, if a draft were restored all registrants would not be drafted. The whole system would still select individuals and treat them differently from other registrants who have acted exactly the same way. (Just imagine a “selective income tax” in which names are put into a hat and only those unlucky enough to get pulled out of the hat must pay a heavy tax!)
A “selective” draft system is therefore incompatible with the rule of law and with the equal protection of the law guaranteed by the Fifth and Fourteenth Amendments. It also would seem to violate the Thirteenth Amendment, which prohibits both slavery and “involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted ….” (The Supreme Court ruled in 1919 that the draft was not involuntary servitude but stated no reasoning. Since the Court is generally willing to use bad reasoning to support a decision when it cannot find good reasoning, apparently it couldn’t even find any bad reasoning.)
The post-Nixon all-volunteer military required increased compensation for soldiers and sailors in order to attract the desired number of qualified volunteers. This meant either spending less on other programs, raising taxes on everybody, or borrowing more money so as to increase the national debt, all unpleasant results. But the all-volunteer military was and is fully compatible with the rule of law since nobody was singled out and threatened with fines or imprisonment for failing to serve.
Some politicians have argued that a draft should be reinstated because the present all-volunteer force makes it too easy for politicians to get us into wars. During Vietnam Senator Edward Kennedy said he favored renewal of the draft, which was due to expire unless Congress renewed it, because the draft drove people to oppose the war, and the war was bad.
But there is a much less draconian and arbitrary way to reduce enthusiasm for military adventures: require that all military actions be paid for by increasing the taxes paid by everyone rather than by borrowing.
Women, like men, are now free to volunteer and to serve in any military capacity. But since selective conscription cannot be reconciled with basic American values and with fundamental constitutional principles, we should not perpetuate its possibility by forcing women as well as men to register.. Instead, we should even up the situation by repealing the requirement that men register for the draft.