Since Congress directed the commission to look at recruiting, it is important to see recent tracking data on the propensity of young women to serve in close combat (infantry) units on the same involuntary basis as male recruits. [8]  Positive indicators on this point have not been apparent, but there have been negative indicators that deserve attention. [9] 

CMR respectfully suggested that this commission obtain and publish current information on youth propensity surveys done by JAMRS (Joint Advertising, Market Research & Studies) and the various Recruiting Command offices that are responsible for finding capable recruits. 

The Defense Department also should provide information about retention rates for women in formerly all-male combat arms units, and comparative, gender-specific rates of injuries, lost-time, and non-deployability.  The national commission should consider these measurable factors, which directly affect readiness, before it recommends registration of women on the same basis as men.

Should There Be “Equality” in the Combat Arms?

In 1980, Congress decided to reinstate Selective Service registration of young men, but members did not approve President Jimmy Carter’s call for the inclusion of women in a possible future draft.  In its 6-3 landmark Rostker v. Goldberg decision (1981), the Supreme Court recognized that Congress had the authority to impose Selective Service requirements on young men only. 

In particular, the Supreme Court said that because women were not “similarly situated” in land combat units, exempting them from the draft did not violate equal protection principles.  The Rostker decision was an easy call to make.

Now that women are eligible for direct ground combat assignments, would the Supreme Court decide the issue in a different way?  No one can guarantee what a future court might do, but a formal Defense Department notice to Congress, revised shortly after the December 2015 decision to open all combat arms positions to women, said this:

“The Court in Rostker did not explicitly consider whether other rationales underlying the statute would be sufficient to limit the application of the MSSA to men. [10] (emphasis added)

Former Campbell University Law Prof. William A. Woodruff, an expert on the subject, has analyzed possible reasons why the Supreme Court still could cite “other rationales” related to national security in upholding the constitutionality of women’s current exemption from Selective Service obligations.  [11]

Prof. Woodruff noted that Congress wrote the Military Selective Service Act (MSSA) to provide for the rapid induction of sufficient numbers of civilians capable of replacing casualties fighting in a major national emergency.  If the draft were reinstated, some women might be able to meet minimal qualifications, but that would not be a good enough reason for determining that all women should be subject to Selective Service mandates.  Wrote Prof. Woodruff:

 “[T]he question is whether the expenditure of time, effort, and resources to cull from the thousands of women who would be drafted the few who might meet the demanding standards required of combat units, and enter the casualty replacement stream, is a wise use of time, effort, and resources during a time of national mobilization where the very survival of our nation depends upon success on the battlefield.

“Congress could reasonably, rationally, and appropriately decide that even though women who can meet the high standards of combat positions can volunteer and serve in those positions, the physiological reality is that most women cannot meet those standards while, physiologically, most men can.

“In light of that reality, Congress could decide that in a period of national mobilization, when time is of the essence, when the blood of our soldiers is being spilled on the field of battle, when the situation is so grave that we must abandon the all-volunteer principle that produced the greatest military force in the history of the world, we simply cannot afford to devote time and resources to identifying those few women who may qualify.

“This is especially true in light of the fact that those women who can qualify and who wish to serve are free to volunteer to do so.  Excluding the remainder from the draft-eligible pool is an exercise in reasoned judgment to provide for the national defense in a time of crisis, not unlawful gender discrimination . . .

“Would men, in that situation, be treated differently?  Of course they would be.  But if the purpose of the draft is to quickly mobilize and deploy a sufficient number of combat soldiers in a time of national emergency, as opposed to creating a system that guarantees gender equity, limiting the draft to males is reasonable, rational, and appropriate.  In this situation men and women are not similarly situated.”  (emphasis added)

Flawed DoD Selective Service Report: “Equity” Over Readiness

In compliance with the National Defense Authorization Act, the Defense Department prepared a report on Selective Service in March 2017. [12]  The 37-page report presented useful information on options for retaining or changing Selective Service System.  The DoD document was seriously flawed, however, because it failed to recognize recent research data highlighting differences in male and female physical capabilities.  

For example, the Defense Department Report discussed additional costs that would be incurred if the numbers of registrants were doubled by gender.  Cost projections were not credible, however, because they implied that all potential inductees would be essentially equal in capabilities.  These assumptions reflected an unrealistic, egalitarian ideology. 

Cost/Benefit Analysis

The DoD report’s pages discussing the direct, indirect, and additional “benefits” of including women in Selective Service registration showed little recognition of the real-world consequences of calling up equal numbers of men and women who are not equally qualified in terms of capabilities that are essential in the combat arms.  

If Selective Service called up women and men ages 18-26 in roughly equal numbers, the administrative burden of finding the theoretical one-in-four woman who might be qualified would make it more difficult to find better-qualified persons. [13]  The argument could be made that including women in the draft pool would hinder the flexibility, efficiency, and speed necessary to respond to a national crisis. 

Given the substantial body of highly-credible empirical findings that WISRR research projects produced since 2012, together with substantial differences in male/female physical capabilities that observers have noted since then, Congress could justifiably decide that in a future national emergency, it would not be worth it for Selective Service to seek and find a small percentage of females who might meet minimal infantry qualifications.  

The cost/benefit analysis of conscripting women has not changed much since the last time the U.S. Senate published a report that concluded: “[A]n induction system that provided half men and half women to the training commands in the event of mobilization would be administratively unworkable and militarily disastrous.” [14]

Upside-Down Priorities

The March 2017 DoD report on Selective Service also claimed that “The registration of women would promote fairness and equity,” and “A requirement for universal registration would place women and men on equal footing.”

These statements reflected upside-down priorities.  The first point implied that this additional “benefit” would justify unneeded burdens on the Selective Service System, even if they impede readiness to mobilize.  The second point failed to recognize that the paramount objective should be military readiness to defend America, not gender equity. 

Most importantly, the egalitarian argument failed to recognize what empirical research has shown:  In combat arms units fighting on the ground, women do not have an equal opportunity to survive, or to help fellow soldiers to survive.

Prospects for Judicial Deference to Congress’ Right to Decide

The Supreme Court cited women’s combat exemption to uphold the male-only Selective Service system in Rostker, but as the Department of Defense noted in 2015, alternative rationales could achieve the same result. 

• The Selective Service System does not exist to provide personnel to deal with forest fires or hurricanes, or to help people in distressed communities.  Nor does it exist to induct support troops.  The purpose of military conscription is to establish an effective casualty replacement stream if it is needed to fight and win a major, nation-threatening war. 

• Under Article I, Section 8 of the U.S. Constitution, Congress has the authority to raise and support armies, provide and maintain a Navy, and make rules for the land and naval forces. That power is plenary, and the Supreme Court has no power to second-guess alternatives.

• In discharging its power to raise and support armies, Congress can let women have it both ways.  Some may choose to serve in close combat, but it would be waste of money, scarce resources, and precious time to involve all women in time of national emergency.

Conscription of both men and women on equal basis would create a political crisis and a paralyzing administrative overload that would weaken our armed forces at the worst possible time.

What About “Men’s Rights?”

Recent litigation brought on behalf of men has challenged the constitutionality of male-only Selective Service registration, citing policy changes affecting military women since December 2015.  Claims of unequal treatment, however, do not hold up. 

Extensive research has confirmed unchanging physiological differences between average men and women.  This means that groups of men and women do not possess equal abilities to perform to the standards required in direct ground combat positions such as the infantry.

Prof. Woodruff has explained that if men and women are not similarly situated, the very premise of an Equal Protection claim would be lacking.  If a federal court found that the male-only registration requirement violates Equal Protection, the court likely would strike down the MSSA and no one would have to register.  The courts would not rewrite the MSSA to include women; that would be Congress’ job.  Prof. Woodruff also noted, 

“Can Congress still restrict draft registration to men only?  That is the status quo . . . [If Congress] develops the appropriate record, there is a viable argument that the courts should defer to the Legislative Branch’s judgment.  There is, of course, no guarantee that today’s Court would embrace that argument.”

Deterrence and National Security

How would a gender-neutral Selective Service System affect America’s ability to deter aggression and to defeat determined enemies?  The DoD report stated, “Military selective service is a symbol of national will and a deterrent to potential enemies of the United States.” 

The DoD report also made the unsupported suggestion that registering women for the first time would “signal to allies and potential enemies alike, an enhanced resolve to defend our nation and its partners, through the commitment and capability of the entirety of our citizenry.”

But then the March 2017 report admitted, “It is not outside the realm of possibility, however, that nations that do not employ women in their Armed Forces or in combat roles could perceive the extension of the draft to women as weakening the power and lethality of the United States.” [15] 

The referenced nations could very well include potential enemy forces that are not burdened by egalitarian policies.  Apart from Israel, some relatively-small allies have chosen to induct women for egalitarian reasons. [16]  

When it comes to deterrence of aggression, America cannot afford to send mixed signals to potential adversaries who really don’t care about gender equity in their armed forces.  Nothing should be done to our military that weakens national resolve or readiness to deploy when national security and the fate of America are at stake. 

Public Support for Selective Service – Should the System be Abolished? 

The Defense Department report claimed that gender-neutral conscription would show more commitment by “the entirety of our citizenry,” but that is questionable.  A 2003 Department of Defense report, which strongly opposed legislation to reinstate conscription, set forth several reasons that are still valid today: [17]

• The All-Volunteer Force is more cost- and combat-effective than a conscripted force would be.  “With a conscripted force comes higher personnel turnover, which results in substantial costs.  Shorter enlistment terms, characteristic of a draft, result in high personnel turnover and a degradation in unit stability and performance”.

• Draftees have served with distinction in all wars that required conscription, but “Draftees also are less likely to reenlist. . . With a volunteer military comes a more motivated force. . . [that] is more productive and less expensive in the long run.”

• Conscription would impose on draftees a hidden “conscription tax, defined as “the earnings that a person forgoes by being conscripted into the military.”  The conscription tax would be “substantial and unequal.” 

• Reduced pay and benefits for conscripts would shift the true cost of obtaining recruits from the military budget to individual draftees.

• The complex designs of current high-tech weapons systems, which are operated by fewer personnel, are not compatible with a conscripted force.

Some supporters of conscription have argued that mandatory military service would deter Congress from declaring or financing future wars.  Others have noted that the large pool of available draftees made it possible for President Lyndon Johnson to prolong the Vietnam War.  According to Dr. Tim Kane of the Heritage Foundation,

“There is simply no substance to the argument that a draft keeps the peace, but it must be said that ‘draft wars’ were fought with higher troop levels, and higher casualties.”  

The controversial Vietnam War, which killed thousands of draftees as well as volunteers, did not close the “military/civilian gap” or unite the nation with its soldiers.  Instead, the nation was torn apart with deep divisions that continue to this day.

National Service and the All-Volunteer Force

This national commission is focusing on prospects for both military service and civilian national or public service.  CMR is concerned about attempts to bracket the two types of service, especially when military readiness is relegated to a back seat behind social goals. 

• If a system of universal national service involves military conscription, the All-Volunteer Force could be weakened.  In CMR’s view, decisions regarding Selective Service should assign priority to military readiness, not gender equity or mandatory national service for any other purpose. 

• Volunteer activities, which Americans of all ages engage in all the time, are a beautiful thing.  Opportunities to help others are everywhere.  We don’t need a government bureaucracy to make volunteerism happen.

There is no compelling reason why government bureaucrats should be given power to commandeer young people’s lives by directing them to spend time in non-critical government service or involvement with government-approved civilian organizations.  As Dr. Kane wrote:

“Even if [proponents of universal military conscription] renamed their project ‘national service,’ it would still be unjust, because forced volunteerism is inauthentic.  Certainly, Americans will sometimes accept restrictions on their liberty, such as the speed limit or income tax, but only to advance the common good.  Empowering the central government to oversee and restrict the employment of all young Americans for two years is not consistent with common good restrictions and is instead a dangerous violation of individual liberty.” [18] (emphasis added)

Volunteerism benefits communities, but there is no evidence that government mandates to “serve” others would be more beneficial to society than productive life choices that individuals freely make.  For example, if a young person chooses to do uncompensated work as an intern in a career field he or she is interested in, that experience often helps to advance their future prosperity and ability to form a family.

Family formation increases personal wealth and strengthens communities in many ways that mandatory national service could not begin to duplicate. 

Would Gender-Neutral Selective Service Obligations Increase Support for Our Military?

Some have suggested that Selective Service registration of all young people on a gender-neutral basis would increase public awareness and support for our military.  This is unlikely, however, especially in view of cultural influences that continue to erode patriotism and love of country.

 Thomas Sowell addressed the problem in an insightful column:

“Today, a military draft would bring in large numbers of people who have been systematically ‘educated’ to believe the worst about this country or, at best, to be nonjudgmental about the differences between American society and its enemies. . .. We dare not destroy [the military institution], or undermine its morals, by pouring into it very different kinds of people, who will be like sand poured into the gears of machinery.” [19]

CMR respects the desire to encourage young people – and people in general – to volunteer to serve.  And this commission likely will recommend ways to improve the Selective Service System’s technology, using contemporary communications systems to locate and register young men.  Universal conscription, however, is not the answer. 

• More than updated communications techniques, there is a need for education about the purpose of Selective Service registration, and the purpose of national defense itself.  Many schools have dropped civics instruction and incorporated courses and supplementary materials that are hyper-critical of America’s history.

• Expressions of patriotism are becoming increasingly rare, and the still-simmering controversy about NFL football players refusing to stand for the National Anthem sends a message that discourages military service.

Whether intended or not, young people are getting the idea that America is not worth defending.  Cultural influences such as this, over time, could eviscerate the foundation and strength of the All-Volunteer Force.  It is beyond the scope of this commission to recommend ways to counter negative influences in popular culture, but it might help to identify the problem.

Some have suggested that universal Selective Service registration would remind civilians of our men and women in uniform, and this might inspire thoughts about possible military service in the same way that advertising does.  But there are better alternatives for achieving such goals.

For example, the U.S. Department of Education and state or local Boards of Education could encourage school counsellors to inform young people of the advantages they might derive from taking the military ASVAB (Armed Services Vocational Aptitude Battery) test.  (Perhaps the DoD could come up with different, more inviting name.)

The test, which is not for military recruits only, can help to identify personal talents, strengths, and capabilities that could be developed into a successful career.

Finally, when the next national emergency occurs, comparable to September 11 or worse, the President of the United States should specifically ask for volunteers to serve, especially if there is a need for volunteers in the combat arms or positions requiring special skills, such as medical personnel or specialists in cyber warfare.  There is no need to impose universal conscription in order to find sufficient people to fill gaps in specialized fields.

CMR appreciated the opportunity to discuss these important issues before the National Commission.  We hope that these insights and suggestions in CMR's Statement for the Record are helpful, and that the commission will invite more testimony from others with similar perspectives in the coming months.

* * * * * * *

Endnotes