Women and the Draft — Forget Fairness

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

The decision of the Supreme Court to turn away a lawsuit designed to extend the military draft to women certainly puts us on the back foot. It might be just a generational thing. Then again, too, we did start out our newspaper — and, for two years, military — career amid a revolt against conscription. All the bien passant personages were trying to do away with, or get out of, the draft, lest they be transported to Vietnam.

Yet 53 years later, the papers are fizzing with this lawsuit in favor of drafting women. At first blush, we supposed the case had been brought by a group of feminists who wanted Rosie to be able to do her riveting with an M-16. Much obliged for the thought, we’d have said. This lawsuit, though, turns out to have been brought by a group of men who seem to resent the fact that women are spared the draft.

This case isn’t about whether women ought to be allowed into the Army or even into combat or even, say, the Rangers. All those bridges have been crossed. The number of women who have served voluntarily must run close to 2 million. Nor is it about whether we should have a draft. The military doesn’t want one. This is about whether women should, against their will, be forced to register for the draft and, presumably, answer a draft call

No, this is an abstract case about fairness. The cert petition of the National Coalition for Men, which is bringing this case, seizes on the word “fairness.” It cites a federal commission report in favor of registering women for the draft. The petitioners seem motivated not by fairness to women, but about fairness to men. The mind reels. It’s hard to imagine a soldier in any foxhole grousing about how unfair it was that his girlfriend, or sister, or daughter hadn’t been drafted.

What in the world is “fairness” doing in this discussion? We just ran the complete text of all four of America’s great state documents through the Sun’s electrically operated Acme Constitutional Concepts Sorting System. It turns out that the word “fairness” fails to appear in any of them — not the Association compact of 1774, nor the Declaration of 1776, nor the Confederation articles of 1781, nor the Constitution.

The Supreme Court didn’t say why it turned away the petition by the National Coalition for Men. The coalition won in the district court but the district was reversed by the riders of the Fifth Circuit. In refusing to take the case, three of the high court sages — Justice Sotomayor, joined by Justices Breyer and Kavanaugh — issued a statement suggesting they wanted to wait to see what Congress might do.

They note that the report Congress commissioned, completed last year, recommended imposing draft registration on women. The legislators are now fermenting on the question. By our lights, Congress possesses wide latitude. It is solely to the Congress, after all, that the Constitution grants the power to “raise” armies and “provide” a navy.* If the Founders wanted to require them to include, or prohibit, women, they would have said so.

It’s not our purpose here to suggest that women lack the ability or courage to fight. Most recently, the Kurdish women have covered themselves in glory. Nor is it hanky panky in the trenches about which we worry; we once answered that concern with the quatrain “It would be a tragic irony / And one we must abhor / If it turned out to be the case / That love’s not fair in war.” It is our purpose, though, to suggest that whatever happens, the part of wisdom is to leave fairness out of it.

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* The Air Force, we have elsewhere noted, took off from a runway other than the Constitution.


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