The Senate Armed Services Committee on Thursday approved a language change in the $768 billion National Defense Authorization Act (NDAA) that would expand the "Selective Service"—the oxymoronically named requirement under threat of imprisonment for 18-year-old males to submit their names to a national registry of potential military conscripts—to include the female of the species.
As Ella Lubell noted here yesterday, among those cheering this development is the American Civil Liberties Union (ACLU), whose lawsuit challenging the male-only draft was denied a hearing last month by a Supreme Court that nonetheless signaled its potential interest should Congress decline to change the law. "Men-only registration actually impedes women's full participation in civic life," the ACLU maintains.
It's worth pausing on that logic, particularly in light of what that "L" stands for. Is "participation" really the right word to describe being coerced by the state to sign and mail a piece of paper for the purpose of expediting any future governmental conscription of citizens into a death-struggle? Is compulsory self-reporting to a national list of people whose freedoms could potentially be usurped really characterizable as a liberty?
"That women register, and perhaps be called up in the event of a draft, is a necessary prerequisite for their achieving equality as citizens, as it has been for other groups historically discriminated against in American history," concluded the National Commission on Military, National, and Public Service, in a March report heavily perfumed with the terminology of anti-discrimination.
This share-the-pain interpretation of "equality" is common, but fundamentally perverse. When assessing unequal treatment under the law based on immutable characteristics, a first-order sorting question should be: Is this a government-imposed legal inequality of opportunity, or of burden? The former deserves overturning; the latter should be ameliorated via not expansion but removal.
The Chinese Exclusion Act of 1882 would not have been made more legally and morally palatable by expanding the unwanted-immigrant class to other nationalities; instead, it was finally reversed altogether by the 1965 Immigration and Nationality Act. Internment of U.S. citizens of Japanese descent during World War II would not have been any more just had we imprisoned more hyphenated Americans derived from other Axis-allied nations. Instead, we issued apologies and made reparations.
Those actions, which wrecked lives, were explicitly discriminatory in intention and effect. Limiting the Selective Service to males, on the other hand, is for most dudes (though not me) a mild annoyance at worst, and if there's any divinable discriminatory intent, it is—as the ACLU and National Commission both contend—the old-fashioned paternalistic notion that the ladies aren't strong enough to fight.
Yet the actual effect is discriminatory to the young men who have to comply or face the (rare) threat of imprisonment and fines, and the much-more-common blocked access to student loans, federal employment, and even driver's licenses. Using the opportunity/burden test, the barring of qualified women (or gays, or other groups who have been blocked historically) from the opportunity of serving in combat has been rightly overturned, but merely exposing them to burdens of draft registration should lead us in an opposite direction: to remove the burden imposed on males.
Laws and other government initiatives that were less explicitly aimed at outgroups, but nonetheless discriminatory in application, have generally been thrown out by courts, rather than expanded to negatively impact a broader population. Most post–Civil War poll taxes didn't say anything about race (with the exception of literal "grandfather clauses," which exempted the descendants of prior, definitionally white male voters from paying), though a century later both the Congress and the Supreme Court recognized that both intent and effect were discriminatory on poor and black communities.
Closer to our era, New York City's "Stop, Question, and Frisk" policy was judged in 2013 to be unconstitutional due its unequal enforcement—around 90 percent of all applications—on minority residents. The solution was not to "mend it" by shaking down the swells in Midtown and Wall Street, but simply to end it altogether.
There's a kissing cousin to the flawed share-the-burden instinct when it comes to criminal justice reform. Every time a rich and/or white suspect or defendant is seen to have received less punitive treatment than what frequently befalls those who are poor and non-white, there are calls even from diehard criminal justice reformers to somehow equalize the punishment by brutalizing the privileged.
"For my friends in Georgia," tweeted former Will & Grace actress Debra Messing on Dec. 10, 2020, "your next U.S. Senators will decide the future of the George Floyd Criminal Justice Reform bill and the John Lewis Voting Rights Act. Be sure to VOTE." Five days later Messing tweeted to Donald Trump: "I hope you live a long life in prison where you become the most popular boyfriend to all the inmates."
The solution to the disparate enforcement of, say, drug laws, on rich celebrities and homeless addicts, is not to make sure Lindsay Lohan serves the maximum sentence each time but to stop jailing adults for drug use, period. So it should be with that other 20th century anachronism, the military draft.
If and when the Democratic-run Congress passes the female-conscript-inclusive NDAA, and President Joe Biden signs it into law, my daughters will not magically have more liberties or even experience discrimination any less. It is discriminatory—and, frankly, embarrassing for any mature country, let alone one dedicated to "Life, Liberty, and the pursuit of Happiness"—to treat any 18-year-old like the physical property of the state. The policy goal should be equality of opportunity, not equality of immiseration.
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