Draft may be needed to rein in all-powerful military

Separate society squelches debate on national policy

By Diane H. Mazur

Diane H. Mazur is a professor of law at the University of Florida and a former aircraft and munitions maintenance officer in the Air Force

December 28, 2003

When we lost the draft a generation ago, we lost a lot. We lost the ability to have a meaningful discussion about anything that involves the military. The Pentagon has begun significant call-ups for the next major rotation of troops in Iraq, but it has no realistic plan for covering our military and domestic security commitments without exhausting our reserve forces.

Yet we give no serious attention to a bill introduced almost a year ago by Rep. Charles Rangel (D-N.Y.) to reactivate the draft. Any suggestion to reconsider the military status quo is met with a charge of not "supporting the troops." The military has become the new third rail of politics, scaring off anyone who dares to have an original thought about our armed forces.

Even Democratic presidential candidate Wesley Clark, a former Army general, tiptoed around the military when he proposed a new national reserve corps. His volunteers, he assured us, would be civilians, second-class defenders, even those assigned overseas.

How did this happen?

The Supreme Court is largely to blame for the decline in our civil-military relations. In 1974, a year after the draft was ended, the court discarded a legal tradition going back to the Civil War by which the military was expected to share the same constitutional values as the rest of us.

Of course, the Supreme Court didn't end the draft--Congress did. But the court took advantage of the draft's end to play games with civil-military relations, making changes it couldn't have gotten away with had the draft remained in place.

In a series of cases from 1974 to 1986, Parker vs. Levy, Rostker vs. Goldberg and Goldman vs. Weinberger, now-Chief Justice William Rehnquist designed a new legal doctrine requiring courts to defer to executive or congressional choices on military matters.

Military decisions no longer needed to be justified, or even explained, Rehnquist ruled, because the military was "a society apart" from America. The military was better than America, so it was exempt from the constitutional strictures that limit abuses of power in every other part of government.

Thumbing nose to equality

Constitutional immunity is a dangerous intoxicant, particularly in a time of heated, partisan disagreement over how the Constitution should be interpreted. That intoxicant is particularly powerful when it gives the government an opening to disregard constitutional values of equality.

Rostker vs. Goldberg, for example, upheld Congress' power to bar women from even registering for a future draft, although all young men are required to register. In any other context, the court would have demanded that Congress justify why the registration of women would have hurt military effectiveness.

Under the new doctrine of deference on military issues, however, Congress got a free pass. It was allowed to exclude women just because it believed that the military was not the proper place for them.

Goldman vs. Weinberger was much the same. In that case, an Air Force psychologist who also was an Orthodox Jew was punished for wearing a yarmulke indoors while in uniform. Just as Congress did not have to give equal respect and dignity to women in military matters, the military did not have to give equal respect and dignity to members of minority religions.

The 1st Amendment normally would require the government to give a good reason why Capt. S. Simcha Goldman's yarmulke interfered with military effectiveness. Instead, the deference doctrine allowed the military to ignore the Constitution and assert, without evidence, that it was a big problem if Air Force personnel did not all look the same. (This from a military that permits more different kinds of "uniform" headgear than one can count.)

There is absolutely no basis in the Constitution for the idea that the military is a constitutionally separate society. But the Supreme Court drove the military in that direction and caused lasting damage. Together with the demise of the draft, which ended the natural exchange of experience between the military and civilian worlds, the court's rulings increased the distance between civilians and military people. The military increasingly viewed itself as separate, distant, morally superior and exempt from constitutional expectations of equality.

That separatist mind-set changed the mix of those who joined the military. Without the leavening effect of the draft, we lost an ideologically and politically diverse military. It was no coincidence that the all-volunteer era saw the military discard its traditional professional ethic of political neutrality, openly aligning with the Republican Party.

Convergence of interests

Conveniently, policy positions taken by the GOP dovetailed neatly with a military that was allowed to operate outside the Constitution. Congress openly relied on the military's constitutional immunity in 1993 when it enacted "Don't Ask, Don't Tell," which allowed the armed forces to continue keeping openly gay citizens from serving in our defense.

Just after the Vietnam War, the Supreme Court wrote in Greer vs. Spock that civilian control of the military could not be strong unless the military avoided "both the reality and the appearance of acting as a handmaiden for partisan political causes." (No one seemed to remember that admonition during the 2000 presidential campaign and its absentee-ballot aftermath.)

The court once understood that civil-military relations suffer when the military ties its fortunes to political and ideological partisanship. It no longer understands that.

Why doesn't anyone ever talk about how much our military has changed? Or about how weak our civil-military relations have become, preventing honest discussion of matters important to the military and to national security? It is because, with the help of the Supreme Court, we have come to view military concerns as being, for most of us, none of our business.

When military service no longer is seen as a shared obligation, civilian America is reluctant, and maybe a little embarrassed, to offer a voice on matters of military concern. We need to talk about how we choose who serves in our military and who carries the obligation for our shared defense.

An empty patriotism

When we lost the draft, we lost the strong sense of civilian control of the military that came from citizens who had the knowledge and the willingness to engage in serious debate on military issues. We admire the military more than any other public institution, but our admiration is an empty patriotism.

A true constitutional patriotism is found in a civilian society that has a connection with military service strong enough to enable its citizens to contribute to the constitutional responsibility of civilian control.

We need to return to a time in which all parts of society--liberal and conservative, privileged and unprivileged--feel they have a voice in how our military is built and how it is used. Civilian control of the military is weak when political partisanship interferes with that discussion.

Proposals to reinstitute the draft at least deserve serious discussion.

We will never achieve the patriotism conceived by our Constitution with an all-volunteer force alienated from civilian society, especially when the military is the only part of America asked to sacrifice in its defense.

Copyright © 2003, Chicago Tribune