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By DIANE H. MAZUR
Sunday, January 11, 2004

When the United States lost the military draft a generation ago, it lost a lot. It lost the ability to have a meaningful discussion about anything that involves the military.

The Pentagon recently began a significant call-up for the next major rotation of troops in Iraq, but it has no realistic plan for covering military and domestic security commitments without exhausting reserve forces. Yet no serious attention was given to a bill Rep. Charles Rangel, D-N.Y., introduced last January to reactivate the draft.

Further, any suggestion to reconsider the military status quo is met with a charge of not "supporting the troops." The military has become the new third rail of politics, scaring off anyone who dares to have an original thought about the armed forces. Even former general and Democratic presidential candidate Wesley Clark tiptoed around the military when he proposed a new Civilian Reserve, to be mobilized in times of national need.

How did this happen? The Supreme Court is largely to blame for the decline in civil-military relations. A year after the end of the draft in 1973, the court discarded legal tradition going back to the Civil War in which the military was expected to share the same constitutional values as the rest of the United States.

In a series of cases beginning in 1974, Chief Justice William Rehnquist designed a new legal doctrine requiring courts to "defer" to executive or congressional choice on military matters. Military judgment no longer needed to be justified, or even explained, Rehnquist said, because the military was "a society apart" from America. The military was better than America, so it was exempt from the Constitution.

There's absolutely no basis in the Constitution for the idea that the military is a constitutionally separate society. But the court drove the military in that direction and caused lasting damage. Together with the demise of the draft, which ended the natural exchange of experience between military and civilian worlds, the court's rulings increased the distance between civilians and military people. The military increasingly viewed itself as separate, distant and morally superior.

This separatist mind-set changed the mix of those who joined the military. Without the leavening effect of the draft, the United States lost an ideologically and politically diverse military. It was no coincidence that the all-volunteer era saw the military discard its traditional professional ethic of political neutrality, openly aligning with the Republican Party.

Just after the end of the Vietnam War, the Supreme Court wrote that civilian control of the military could not be strong unless the military avoided "both the reality and the appearance of acting as a handmaiden for partisan political causes." (No one seemed to remember that admonition during the 2000 presidential campaign and the absentee-ballot aftermath.) The court once understood that civil-military relations suffer when the military ties its fortunes to political and ideological partnership. It no longer understands that.

Why doesn't anyone ever talk about how much the military has changed? Or about how weak civil-military relations have become, preventing honest discussion of matters important to the military and to national security? It is because, with the help of the Supreme Court, the United States has come to view military concerns as being, for most of civilians, none of their business.

When military service is no longer seen as a shared obligation, civilian America is reluctant, and maybe a little embarrassed, to offer a voice on matters of military concern. There is need to talk about how who serves in the military is chosen and who carries the obligation for shared defense.

The strong sense of civilian control of the military that came from citizens who had the knowledge and the willingness to engage in serious debate on military issues was lost with the end of the draft. The military is admired more than other public institutions, but the admiration is in empty patriotism. A true constitutional patriotism is found in a civilian society that has a connection with military service strong enough to enable its citizens to contribute to the constitutional responsibility of civilian control.
 
 
 

Diane H. Mazur is a professor of law at the University of Florida and a former Air Force aircraft and munitions maintenance officer. She wrote this article for Newsday.

All Times Union materials copyright 1996-2004, Capital Newspapers Division of The Hearst Corporation, Albany, N.Y.

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