Can We Talk? The Obligation of Military Service


 In 1778, Samuel Johnson said that “every man thinks meanly of himself for not having been a soldier,” but should that still be the case today? John Stuart Mill claimed:

a man who has nothing which he is willing to fight for…is a miserable creature who has no chance of being free, unless made and kept so by the exertions of better men than himself.

Was Mill right? Does every able-bodied citizen have an obligation to put him or herself in harm’s way if needed? Should the United States compel such service by a draft? Perhaps most importantly, is a fully-informed discussion about these issues overdue in America?

Yes, it is, and Max Margulies takes a shot at doing so. In his recent article for War on the Rocks, he not only opposes a military draft, but he also takes exception to the very notion that military service represents “the deepest obligation of citizenship,” as claimed in an article by David Barno and Nora Bensahel marking Memorial Day. Margulies counters that while defending the country is “among” the most important forms of service, it should not be considered an obligation of citizenship. In fact, he warns that even suggesting it might be one will dangerously “deepen the divide” between those who serve and those who don’t. Margulies’ essay adds valuable perspective to this discussion, but he goes awry on some key points.

U.S. law has long made military service an obligation, and one that can be constitutionally required of every adult (including non-citizens). What is more is that although there are bona fide practical issues about a draft, Margulies’ argument that it causes the poor and blacks to suffer disproportionately is misplaced. Lastly, although Margulies thinks a draft is unlikely, the demands of high-tech conflict may make one necessary.

As mentioned, Margulies is animated by Barno and Bensahel’s essay on the obligations of citizenship. In it they recognize the positive effects of the all-volunteer force, but nevertheless express some concerns, including the idea that it’s “become too easy for most Americans to believe that they are no longer responsible for fighting the nation’s wars.” Accordingly, they go on to note – correctly – that America’s constitutional architecture establishes rights and responsibilities for citizens. They observe:

[A]mong these responsibilities, only one requires risking life and limb — the defense of the republic. That is why it is the deepest obligation of citizenship. Yet today, most Americans citizens simply do not believe that it applies to them.

Barno and Bensahel offer a modest remedy: that there be some sort of “oath-taking” event (possibly connected with draft registration) that “would reaffirm to all of those present that the responsibility and the risks of fighting America’s wars belong to the population as a whole, not just to an ever-shrinking, committed cloister.”

They acknowledge that their proposal is a controversial one, but they believe that it would nevertheless “spark a vibrant debate…about the responsibilities of citizenship.” They contend that such a discussion would help close civil-military divides and strengthen the understanding of “other civic responsibilities of U.S. citizens.”

Margulies admits that Barno and Bensahel “do not explicitly call for a renewed draft” and even concedes that a “draft may become necessary in the event of ‘a really big war’, but he nevertheless proceeds to castigate them for even mentioning one. Margulies insists that “throughout American history, there has not been a general expectation of military service as an obligation of citizenship,” and in doing so, dismisses the role of the militia, seemingly believing it wasn’t an “obligation.”

Actually, there has always been an obligatory dimension to militia service. From the nation’s earliest years, the law has been pretty clear about required military service: The Militia Act of 1792 compelled “every free able-bodied white male citizen” to serve as part-time soldiers. Similarly, current law places all military-age “able-bodied” males” not already serving in uniform into the “unorganized militia” of the United States.

What is more is that while conscientious objection exist as a matter of statutory grace, it is not a Constitutional right. In Jacobson v. Massachusetts, the Supreme Court noted that someone “may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country and risk the chance of being shot down in its defense.” Moreover, although historically military service has only been required of males, there is no constitutional reason it could not also be required of women – or even the disabled – if the need arose.

One of the key underpinnings to Margulies’ objection to the draft is his claim that the poor and blacks have suffered unfairly as a result of it, and makes the specific claim that “blacks suffered a disproportionate number of combat casualties” in Vietnam. These contentions are misleading.

For context, let’s not forget that almost 70 percent of the casualties in Vietnam were among volunteers, not draftees. As to the economic status of those who became casualties in Vietnam, there is ongoing disagreement. A 1992 MIT study concluded that soldiers from “poor communities had only marginally higher [casualty] rates,” which the researcher contended called into question the widespread belief that “American war deaths in Vietnam were overwhelmingly concentrated among the poor and working class.” However, the study relied upon assumptions about income based upon individuals’ hometown, an approach that James Fallows has severely criticized.

A 2016 study of casualties from World War II through the wars in Iraq and Afghanistan published in the Memphis Law Review asserts “that there is growing socioeconomic inequality in military sacrifice,” but admits that because the Department of Defense doesn’t release socioeconomic data on individual troops, the researchers “cannot directly observe whether poorer Americans with fewer educational opportunities are disproportionately dying in or returning home wounded from the nation’s wars.” Consequently, this study relies upon much the same assumptions that Fallows so vehemently critiqued.

Still, is economic “equity” a continuing issue? A 2017 Congressional Research Service report concludes that “recent data indicate that a majority of recruits come from middle-income families.” In fact, “recruits from the bottom quintile of households (lower-income) are generally underrepresented in the military, with the exception of the Army” [Emphasis added]. Unsurprisingly, the top quintile is likewise underrepresented, the “South contributes more new recruits per capita than any other region of United States,” supplying about 44 percent of new recruits in FY 2015.

Could we not reasonably conclude that, if properly administered, a draft could spread the burden of service – as apparently the all-volunteer force has not – to both the highest and lowest socioeconomic segments of society that are currently underrepresented, as well as to geographic areas beyond the South?

What about the draft and Margulies’ claim that blacks suffered disproportionate casualties in Vietnam? The same report found that:

Studies following the Vietnam era have found little evidence of widespread institutional racism in draft and casualty statistics….[B]y the end of U.S. military involvement in the war in 1973 total black fatalities were approximately 12.4% of the total casualties. In that year, black servicemembers accounted for 18.4% of the active component Army enlisted corps and 16.9% of Marine Corps enlisted.

In short, the data shows that blacks did not suffer disproportionate casualties in Vietnam. This is also true today: Figures from America’s current conflicts in Iraq and Afghanistan clearly show that blacks and other minorities are not suffering disproportionate casualties. Put another way, an argument against the draft that depends upon categorizing casualties by race is not supported by the facts and carries real potential to be unproductively divisive.

Margulies also apparently thinks that Barno’s and Bensahel’s article conceptualizes “service to the country as strictly military” and reinforces the idea that those in uniform are the “only ones who can solve national problems.” However, Barno and Bensahel never make that claim. Margulies also frets that – à la Starship Troopers – the rights associated with citizenship might become viewed as contingent on mandatory military service. But again, Barno and Bensahel never make such a claim.

To be clear, there are certainly many ways to serve. Indeed, given that the vast majority of even young Americans can’t qualify for military service, it is imperative to find alternatives. Many Americans seem to recognize the importance of giving back to the nation, as almost half favor mandatory public service of some kind. Of course, there could be consequences if someone unlawfully avoids mandatory service of whatever type, but no one is suggesting that any American be deprived of his or her rights under any circumstances absent due process of law.

In any event, with the emergence of cyber and other high-tech threats that don’t involve the physicality of past wars, it may be necessary to conscript persons currently considered unfit for service in order for the military to acquire the expertise it needs in the 21st century to fight across the spectrum of conflict. Accordingly, America’s need for a draft may not be for just the “really big war” that Margulies’ believes is unlikely, but also for the ongoing cyber conflicts for which many believe there is ”no end in sight.” The discussion Barno and Bensahel want to stimulate may be exactly what is needed to prepare for a time that may be upon us sooner rather than later.

Finally, there is no evidence that Margulies’ suggestion that considering military service “the deepest obligation of citizenship,” per Barno and Bensahel, creates a divisiveness in American society that hurts civil-military relations.

In 2009, President Barack Obama asked:

What tugs at a person until he or she says “Send me”? Why, in an age when so many have acted only in pursuit of the narrowest self-interest, have the soldiers, sailors, airmen and Marines of this generation volunteered all that they have on behalf of others? Why have they been willing to bear the heaviest burden?

Whatever it is, they felt some tug; they answered a call; they said “I’ll go.” That is why they are the best of America, and that is what separates them from those of us who have not served in uniform — their extraordinary willingness to risk their lives for people they never met.

If anything, most Americans clearly see this form of sacrifice as something that draws them closer to servicemembers in admiration and trust. Polls show that the “selfless actions in putting themselves in harm’s way for the benefit of others” by those in uniform are one reason the military is the institution in which the public has the most confidence. I’d contend it’s also much of the reason Americans believe the military is the institution most likely “to act in the best interests of the public.”

More simply, if putting one’s life on the line isn’t an expression of the “deepest obligation of citizenship,” what would be? Sure, there are other vitally important ways to carry out obligations of citizenship – exercising (and publicly defending) the rights elucidated in the Constitution and other forms of public service among them – but, to me anyway, those that require risking life and limb manifest the ultimate sacrifice. As the Bible puts it, “greater love hath no man than this, that a man lay down his life for his friends,” and I think that applies as well to one’s countrymen.

Regardless, issues such as the nature of a citizen’s responsibilities and the wisdom of a draft are worthy topics of discussion and debate, but let’s make sure that we’re informed by a more complete presentation of the facts.


Charles Dunlap is currently a Professor of the Practice and Executive Director of the Center on Law, Ethics and National Security at Duke Law School. He retired from the Air Force in 2010 as a major general, and over his 34-year career he served as a military judge, prosecutor, and defense counsel, as well as the Chief of the Military Justice Division at the Air Force Judge Advocate General School.

Image: U.S. Army/Staff Sgt. Bryan Lewis