Now that combat roles are open to women…

by Walter Olson on January 25, 2013

…has male-only draft registration become unconstitutional? Gerard Magliocca and commenters discuss.

More: from Ilya Somin (best answer is less conscription, not more); “David Hume” at Secular Right.

{ 7 comments }

1 theprez98 01.25.13 at 3:14 pm

I wrote this afternoon about how the central rationale for the Supreme Court’s decision in Rostker v. Goldberg is now gone: http://theprez98.blogspot.com/2013/01/is-selective-service-act.html

2 John David Galt 01.25.13 at 5:21 pm

So long as the 13th Amendment is not enough by itself to get the Supreme Court to rule the draft unconstitutional, it proves that their decision process is so political (or if you prefer, corrupt) that any attempt to predict the result as if it were determined by principle is no more than wanking.

3 Malcolm 01.26.13 at 2:33 am

I might ask an even more pointed question:
Does anybody seriously believe that this is what the writers of the Constitution and its Amendments had in mind?

4 ps 01.26.13 at 7:17 am

don’t expect to see NOW rushing out to support an equal draft any time soon.

5 Hugo S. Cunningham 01.26.13 at 8:42 am

I won’t argue the mechanics of Constitutional jurisprudence, but on good-government grounds, I hope the USSC leaves the option to exempt women as is.

(1) Women can avoid a draft by getting pregnant. For numerous social reasons, this would be a corrosive environment for childbirth, not to mention being unfair. Maybe in some future age, political support will emerge for the remedy: *forcing* women subject to a draft to accept birth control. For now, however, I can’t name a single political figure who would support that idea.

(2) The social pendulum might swing back. If a future society should again feel protective of women, the *option* to exempt them from a draft (and especially combat) might make the difference whether or not Congress votes to defend the country adequately. I have in mind the two-vote margin by which the House of Representatives voted to maintain our expanded army in September 1941, three months before Pearl Harbor.

If the States had ratified the Equal Rights Amendment (ERA), my argument would be moot. As it turned out, however, the USSC used 14th Amendment jurisprudence to apply the popular consequences of ERA, while ignoring unpopular consequences, notable a unisex draft.

6 William Nuesslein 01.26.13 at 12:04 pm

Someone once said that there are two problems with sex: How did it come about? And what do you do with excess males?

Excess males – war. That makes women soldiers ridiculous as a biological concept.

Speaking of ridiculous: the fact that young fit men and women do the nasty when in close working relations was deemed to result from some cultural forces.

As to how did sex come about. Think of an amoeba happily making true copies of itself. Why would he make offspring with foreign DNA? What was the first creature to do the nasty?

7 No Name Guy 01.28.13 at 4:28 pm

Galt: Just for kicks, back in the 90′s I looked it up. In 1917 or 1918 as I recall, the Supreme Court ruled the draft was merely the mechanism for Congress “organizing” the Militia, the Militia being defined by statute as all able bodied males between 18 and 40 something, plus (!!!) all able bodied females who were Officers in the National Guard. (I’m going from memory here, so cut me a touch of slack if I’m off slightly).

Now, IMO, the above definition of the Militia is discriminatory. If, as certain elements on the Left claim, that the 2nd Amendment is a “collective right”*, then the right to own arms only applies to men, since only men (or women who are officers in the National Guard) are the only members of the Militia. * – note, this idea of a “collective right” is a load of male cow excrement, but I digress.

Or how about potentially drafting women is just simply an equal protection under the law thing. I can’t wait for the howls of protest when the NOW crowd’s daughters have to register for the draft upon turning 18 like all the guys do.

Oh, and it should be noted for the good of the discussion, the draft hasn’t been used since the early / mid 70′s – nearly 40 years ago. Lets hope the idiot political leaders keep it that way.

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