Military conscription, much like an “individual mandate,” is slavery. Unscrupulous chicken hawks will use government law to coerce citizens in waging warfare against frightened foreigners who have caused us no harm; the goal here for American patriots is to be able to navigate the Kafkaesque legal quagmire in order to minimize harm while also reducing pain. If there were a motto or slogan that encapsulates the libertarian spirit of draft resistance, it would be non serviam tyrannis!
Constitutionally, the enumerated powers of Congress, as well as one of the roles of the President, appear to justify the legitimacy of the draft itself. The following clauses establish the federal military:
- War Powers Clause (Art. I § 8 cl. 11)
- Army Clause (Art. I § 8 cl. 12)
- Navy Clause (Art. I § 8 cl. 13)
- Insurrection Clause (Art. I § 8 cl. 14)
- Militia Clause (Art. I § 8 cl. 15)
- Commander-in-Chief Clause (Art. II § 2 cl. 1)
These constitutional clauses are enumerated, in the same order, thusly:
“The Congress shall have Power…To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy… To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia, according to the discipline prescribed by Congress…”
“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several states, when called into the actual Service of the United States…”
So, what you have here is a situation whereby the federal legislature is constitutionally authorized to not only declare war, but also commission privateers. To those ends, Congress is delegated by the Constitution to not only have its own Army and its own Navy, but also regulatory control over the Militia as well. This is further reinforced by the federal executive’s role as the supreme commander of the federal military. In light of these half dozen constitutional clauses, it would be nearly impossible to argue that conscription is unconstitutional, for how otherwise is Congress able to carry out its powers and duties in a time of war, not to say anything of the President?
Interestingly enough, the constitutional basis for the structure of the federal military was yet one more point of contention between the Federalists and Anti-Federalists during the ratification period of the 1780s. Alexander Hamilton argued in Federalist Paper #23:
“Congress have an unlimited discretion to make requisitions of men and money; to govern the army and navy; to direct their operations. As their requisitions are made constitutionally binding upon the States, who are in fact under the most solemn obligations to furnish the supplies required of them, the intention evidently was that the United States should command whatever resources were by them judged requisite to the ‘common defense and general welfare.’” [emphasis added]
If Hamilton is correct that Congress’ requisitions of men is an unlimited discretion, then how is that a constitutional limitation, or prohibition, against the draft? Brutus, on the other hand, argued in Anti-Federalist Paper #1:
“In so extensive a republic, the great officers of government would soon become above the control of the people, and abuse their power to the purpose of aggrandizing themselves, and oppressing them…[w]hen these are attended with great honor and emolument, as they always will be in large states, so as greatly to interest men to pursue them, and to be proper objects for ambitious and designing men, such men will be ever restless in their pursuit after them. They will use the power, when they have acquired it, to the purposes of gratifying their own interest and ambition, and it is scarcely possible, in a very large republic, to call them to account for their misconduct, or to prevent their abuse of power. These are some of the reasons by which it appears, that a free republic cannot long subsist over a country of the great extent of these states. If then this new constitution is calculated to consolidate the thirteen states into one, as it evidently is, it ought not to be adopted.” [emphasis added]
Although this criticism would initially appear to be focused solely on the President’s enumerated role as the commander-in-chief, I see no good reason why this same criticism couldn’t also equally apply to the Congress as well. The fact of the matter is, there are half a dozen constitutional clauses authorizing the existence of a federal military, with the Congress primarily allocating funding for it, and the President in operational control of it. Should these enumerated powers be truly unlimited, as suggested by Hamilton, then that just exacerbates Brutus’ concerns about their inherent corruption, doesn’t it?
Statutorily, military conscription has gone through quite a bit of alteration over the years. Currently, the operating statute is the Military Selective Service Act of 1948, which is found in the statutory code as Title 50-Appendix United States Code §§ 451 – 473. To begin with, 50 USC § 453(a) says:
“Except as otherwise provided in this title…it shall be the duty of every male citizen of the United States, and every other male person residing in the United States, who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and twenty-six, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President and by the rules and regulations prescribed hereunder.” [emphasis added]
In other words, unless there is an exception, the guiding rule is that all males 18 – 26 living within the United States must register for the draft. Interestingly, 50 USC § 454(a) says:
“That, notwithstanding any other provision of law, any registrant who has failed or refused to report for induction shall continue to remain liable for induction and when available shall be immediately inducted…[n]o person, without his consent, shall be inducted for training and service in the Armed Forces or for training in the National Security Training Corps under this title…except as otherwise provided herein, after he has attained the twenty-sixth anniversary of the day of his birth.” [emphasis added]
This would seem to indicate, exceptions notwithstanding, that once a male (citizen or resident alien) turns 26, he cannot be compelled by law to submit to the draft process. So, although registration and induction are (usually) compulsory for those between 18 – 26 years old, induction becomes voluntary once you are old enough. The penalties for violating the individual mandates of the Military Selective Service Act are to be found in 50 USC § 462(a):
“Any member of the Selective Service System or any other person charged as herein provided with the duty of carrying out any of the provisions of this title…who shall knowingly fail or neglect to perform such duty…shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment…” [emphasis added]
Since it is the duty of all males within the United States who are between 18 – 26 years old to register for the draft, the maximum punishment for failure to perform said duty is 5 years in a government dungeon and a $10,000 fine. The only point of contention in my mind, at this point, is why the Selective Service System (SSS) said that the maximum fine is $250,000 (perhaps they assumed that 18 USC § 3571 supersedes 50 USC § 462); regardless, the statutory offense is still a felony, and even once the sentence is completed, the legal status of being a convicted felon is for life, and therefore “status offenses” like felon in possession of firearm, become a very real threat to your freedom. If anything, the military draft is very much like jury duty, in that both of them are violations of negative liberty.
Judicially, conscription has been upheld and reinforced as being constitutional. Regarding the 13th Amendment’s prohibition against involuntary servitude, Butler v. Perry, 240 U.S. 328 (1916) says:
“It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the State, such as services in the army, militia, in the jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers.” [emphasis added]
Not only am I correct about the similarity between conscription and jury duty, but it would also seem that citizens owe a debt to the State. Further elaborating on this crucial topic is Arver v. United States, 245 U.S. 366 (1918):
“Further it is said, the right to provide is not denied by calling for volunteer enlistments, but it does not and cannot include the power to exact enforced military duty by the citizen. This however but challenges the existence of all power, for a governmental power which has no sanction to it and which therefore can only be exercised provided the citizen consents to its exertion is in no substantial sense a power. It is argued, however, that although this is abstractly true, it is not concretely so because as compelled military service is repugnant to a free government and in conflict with all the great guarantees of the Constitution as to individual liberty, it must be assumed that the authority to raise armies was intended to be limited to the right to call an army into existence counting alone upon the willingness of the citizen to do his duty in time of public need, that is, in time of war. But the premise of 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.” [emphasis added]
This is rather revealing, for it directly applies the 1874 Minor v. Happersett case to this particular subject of the military draft, even going so far as to explicitly invoke the “reciprocal obligations,” which is a duty of allegiance by the citizen in exchange for a duty of protection by the State. On that note, there is mention made of state citizenship in Arver:
“As the mind cannot conceive an army without the men to compose it, on the face of the Constitution the objection that it does not give power to provide for such men would seem too frivolous for further notice. It is said, however, that since under the Constitution as originally framed state citizenship was primary and United States citizenship but derivative and dependent thereon, therefore the power conferred upon Congress to raise armies was only coterminous with United States citizenship and could not be exerted so as to cause that citizenship to lose its dependent character and dominate state citizenship. But the proposition simply denies to Congress the power to raise armies which the Constitution gives.”
As Chief Justice White says, arguing that one is a state citizen in order to avoid conscription is to misunderstand the constitutionality of conscription itself, as per the aforementioned half dozen clauses. However, this specific duty of allegiance via conscription is enforced by the federal government in peculiar ways, as evidenced by both the Holmes v. United States, 391 U.S. 936 (1968) and Rostker v. Goldberg, 453 U.S. 57 (1981) cases. In Holmes, the United States Supreme Court denied a petition for a writ of certiorari on the question on whether drafting men into the federal military, absent a declaration of war, was constitutional; in Rostker, the Supreme Court held that the SSS’s enabling statute did not violate the Fifth Amendment’s Due Process Clause by requiring the registration of men, yet not of women:
“The existence of the combat restrictions clearly indicates the basis for Congress’ decision to exempt women from registration. The purpose of registration was to prepare for a draft of combat troops. Since women are excluded from combat, Congress concluded that they would not be needed in the event of a draft, and therefore decided not to register them.” [emphasis added]
Considering the blatant sexism inherent in the law, notice that the entire goal of registration is to force men into combat with foreigners. I’m not at all suggesting that women should have been “equally” coerced via the military draft, but rather, that said compulsory registration is lopsidedly biased against males. This application of the “reciprocal obligations,” as mentioned in Minor, really calls into question whether the social contract is fair and even-handed, especially in terms of women benefiting from the duty of protection by the State through the military conscription of men.
Just to clarify, whenever it comes to governmental legalities, regardless of the subject matter, my only interest lies in constitutional enumeration, legislative intent, and judicial interpretation; as far as I am concerned, originalism is the way for how best to understand the Framers.
Economically, conscription is not viable. The costs of the draft are self-evident in the fact that it violates both labor specialization (the division of labor) and the spontaneous order of the market, which reduces the success of the overall war effort. This is because conscription forcibly imposes opportunity costs through central planning, as explained by the parable of the broken window; therefore, it is more than fair to say that the draft is a form of government intervention against the free market. Conscription, at best, only “works” under a militia system where the citizen-soldiers work at their normal jobs when they are not deployed; in other words, “professional” militaries are cost prohibitive. Thus, a federal navy, and even a “temporary” federal army, constitutional as they may be, are not exempt from the natural laws of economics when the question of conscription is raised.
In terms of financial and operational accountability, is Selective Service worth the expense of both taxpayer funding and military support? Putting aside the constitutionality of the SSS as an administrative agency, their “Performance and Accountability Reports” between FY 2008 – 2015 reveal that they have lost $187,365 in total assets, although to be fair, the SSS has reduced its liabilities by $1,856,208 while also growing its net position by $695,981 over the same period. Despite this improvement in their finances during these past seven years, the General Accounting Office (GAO) remains skeptical as to the necessity for the SSS at all. GAO’s 1997 report evaluated two cost reduction variants, both of which would eliminate compulsory registration, as well as providing an annual cost savings in the millions of dollars; GAO’s subsequent 2012 report challenged the Pentagon’s assertions about the quickness of mobilization, “or even whether draftees would play any role in a military mobilization” in the first place. If the only cost of being freed from the legal duty of compulsory registration is a slower mobilization of draftees, then I think the millions of taxpayer dollars saved are well worth it.
What, if anything, can be done to resist conscription? Thankfully, the draft has not been activated by the federal government since at least 1980, so the spectre of those males 18 – 26 years old being forcibly inducted into the military is not currently on the table; therefore, the route of becoming a conscientious objector right now is not legally possible, according to Richard Flahavan, the Associate Director of Public & Intergovernmental Affairs at the SSS. The only real form of legally sound “draft avoidance,” absent a declaration of war, a reinstatement of the draft, or some other kind of legal exemption, would be expatriation.
Whether or not the draft is reinstated is virtually a moot point when it comes down to the question of resisting compulsory registration, which for right now is the main threat to males 18 – 26 years old. Assuming that a man within that age range does not qualify for an exemption from registration, and will not or cannot expatriate, then civil disobedience through draft evasion (“draft dodging”) is really where it’s at, methodologically speaking. One way to begin doing this would be to engage in the libertarian pyrotechnics of burning the draft cards, much like Michael Himlie did earlier this year; the United States v. O’Brien, 391 U.S. 367 (1968) case ruled that such burnings were not symbolic speech because the government interest in maintaining conscription was constitutional, and therefore unrelated to free speech, as (supposedly) guaranteed by the First Amendment. Other techniques, such as those recommended by Edward Hasbrouck, include:
- Don’t register.
- Don’t tell Selective Service your new address when you move.
- Don’t show up for induction.
- Show up and flunk the physical.
- Show up and refuse induction.
- Leave the country, or hide, for the rest of your life.
Needless to say, the degree of risk arguably varies depending on the technique(s) chosen, yet I find it quite revealing that there have only been 20 prosecutions of draft registration resisters since 1980, and none at all since 1986. An individual’s own personal sense of anti-militarism should really be the chief gauge by which to judge and act in terms of resisting compulsory registration. Additionally, I’d suggest that war tax resistance, in the spirit of tax noncompliance, is also on the table as a complimentary parallel.
Ultimately, the legal goal here would be not only the repeal of the compulsory registration law, but also the abolition of the Selective Service System. As Ayn Rand wrote in her essay, The Wreckage of Consensus (which appeared in the 1966 publication of Capitalism: the Unknown Ideal), about the military draft:
“Of all the statist violations of individual rights in a mixed economy, the military draft is the worst. It is an abrogation of rights. It negates man’s fundamental right – the right to life – and establishes the fundamental principle of statism: that a man’s life belongs to the State, and the State may claim it by compelling him to sacrifice it in battle. Once that principle is accepted, the rest is only a matter of time.” [emphasis added]
This is probably the most succinct explanation of the libertarian position against conscription. To further elaborate on it, Dr. Ron Paul wrote in 2003:
“Military needs aside, however, some politicians simply love the thought of mandatory service to the State. To them, the American government is America. Patriotism means working for the benefit of the State. On a crude level, the draft appeals to patriotic fervor. This is why the idea of compulsory national service, whether in the form of military conscription or make-work programs like AmeriCorps, still sells on Capitol Hill. Conscription is wrongly associated with patriotism, when it really represents slavery and involuntary servitude.” [emphasis added]
Despite my criticisms about Dr. Paul, even I will admit his explanation about the evils of conscription hit it right on the head. On a more fundamental level, however, is there something unethical behind the draft itself? Stefan Molyneux wrote in 2008:
“In the same way, we can endlessly theorize about the psychological, sociological, or economic causes of war, but if we never talk about the simple fact that the first cause of war is domestic theft and military enslavement, then everything that follows remains mere abstract and airless intellectual quibbling, more designed to hide the truth than reveal it. We can only point guns at foreign enemies because we first point guns at domestic citizens. Without taxation, there can be no war. Without governments, there can be no taxation. Thus governments are the first cause of war. The truth of the matter, I believe, is that deep down we know that if we pull out this one single thread – that coercion against citizens is the root of war – we know that many other threads will also come unraveled.” [some emphasis added]
In other words, it is government coercion itself that is the threat to our liberties, not some distant possibility of hostile foreigners storming the beaches of California, Texas, or Florida. When you have congresscritters like Charlie Rangel who write editorials advocating the reinstatement of the draft in order to promote “gender equality” within the military, or to force young Americans to go fight ISIS (as well as imposing a new war tax, of course), then I can’t help but remember what Adam Kokesh said in his speech at the Ron Paul Revolution March back in July of 2008, on behalf of Iraq Veterans Against the War:
“We swore to support and defend the Constitution of the United States of America, but we found out the hard way that the greatest enemies of the Constitution are not to be found in the sands of some far off land, but rather right here at home!” [emphasis added]