The Draft, Justice, and the Involuntary Deprivation of Constitutional Rights

The draft (especially the sex-selective draft) should be ruled unconstitutional. Reading the previous sentence, you’re probably thinking that I’m a gung-ho sexist draft dodger from the Vietnam era. Well, I’m not. Actually, I registered with the Selective Service on my 18th birthday as required by law, and the Vietnam era was before my time. It is not the draft per se that I have a problem with. It is the draft under the current legal framework.

Joining the military requires the forfeiture of certain rights and freedoms as guaranteed by the Bill of Rights. This is required due to the necessities of a quasi-separate military society, a fully justified requirement when demanded of the freely enlisted. But when ordinary American males are required under penalty of law to enlist in the military and thereby required under penalty of law to forfeit their guaranteed rights under the Constitution, an injustice—both legal and moral—is done to American males.

I do not here advocate the abolition of the draft, but rather the protection of involuntary draftees' constitutional rights under military law. Ordinary civilian rights and freedoms should be enshrined in the Uniform Code of Military Justice (UCMJ) for those soldiers who were involuntarily enlisted. Voluntarily enlisted soldiers, who thereby voluntarily temporarily forfeited certain constitutional rights and freedoms, would not need to be subject to such UCMJ protections in justice.

It may be objected that creating two fundamentally different gradations of military justice would cause a myriad of problems for the command structure as well as for the Judge Advocate General Corps (JAG) of the respective branches. It very likely would. But the alternative is not to involuntarily deprive ordinary American males of their constitutional rights and freedoms. Even felons receive due process of law when they are deprived of certain constitutional rights and freedoms, and they have irreparably wounded society! The ordinary American male deserves justice. The UCMJ must incorporate the protections of the Bill of Rights, or the draft must be permanently abolished. There is no alternative in justice or law.